Russian IP ombudsman, Anatoly Semenov, proposed to eliminate criminal liability for copyright infringement for cases where person infringed copyright in software without intention to sell or distribute it. In other words if person has installed pirated software on computer and does not disseminate it or does not sell it to other persons, such person should not be held criminally responsible.
But there is one important detail – liability is to be excluded if there is no public danger in deeds of indicted person. The criminal liability is provided in Russian criminal code (article 146). IP ombudsman believes dishonest lawyers apply article 146 of Russian criminal code for their mercantile interest.
In different regions of Russia very often the software is installed on computers without proper licence, people buy cracked software and install it on their computers, like Windows’ software. Windows does not receive anything from sales of such software, but people use it as it would be licenced. Such practice is also in regional companies, where employees buy cracked software for exercising of their professional duties and install it instead of licenced software.
When employee quits he can notify enforcement authorities of the fact that illegal software is installed and exploited on certain computers in violation of current Russian law. Or “official representatives” (who even is not associated with actual right holder) notify enforcement authorities of the fact of copyright infringement. Upon notification enforcement authorities execute a search and seize all computer equipment. Expertise of equipment confirms the fact of installation of pirated software. After that prosecutor’s office refers the case to the court and the judge says guilty.
In cases, where pirated software is installed in company, the guilty is CEO or the person who executes CEO’s duties. IP ombudsman believes it is wrong, when CEO is responsible for illegal software installed in its company for professional or personal purposes. He believes the investigation must identify who has installed illegal software on computers. The person, who installed pirated software, must be liable for copyright infringement. “If the body would be found in office, enforcement authorities search for killer, who committed a murder, but they don’t search for CEO. Why with unlicensed software everything is different, it is unclear,” – he said.
But there are also very interesting things with “representatives authorised by right holders”. They need criminal case as evidence. They take sentence and go to commercial court and seek for compensation with reference to sentence in accordance with article 146 of Russian criminal code. Compensation can be up to three million Russian roubles. Semenov was involved in many cases with criminal sentence and discovered one interesting thing – persons, who declared themselves as “official representatives” of right holders, were not duly authorised by right holders.
According to Semenov, the instrument authorising the person to represent certain interests of Microsoft, has been signed by the persons who did not have a right to act on behalf of Microsoft, like assistant secretary who has a right to verify a copies of documents only. But official representative of Microsoft Kristina Davidova has stated that protection of Microsoft’s copyright is duly entrusted to authorised legal representatives. Microsoft does not have any information concerning the cases where unknown persons acted on behalf of the company.
The company “Russian Shield”, protecting interests of right holders, confirmed they also faced “oddities” in authorisation instruments from major international companies. “There is a big western company with office in Russia. If you would check its incorporation documents you see that it is separate legal entity. There is no judicial connection between Russian legal entity and main office (incorporated outside of Russia). What authorities they give (to Russian legal entity) it is not clear,” – said president of “Russian shield”.
“Sometimes major lawyer offices represent interests of international companies. And we know the cases racketeering. Such offices send letters to businessmen and require settlement for exploitation of unlicensed content, threatening to refer all information to enforcement authorities,” – he added. The president of “Russian Shield” knows about cases when companies paid settlements even when they exploited legal software in order to avoid any unnecessary inspections.
Article 146 of Russian criminal code provides criminal liability for illegal use of IP objects as well as for acquisition, storage and transportation of illegal copies of works of phonograms for sales purposes. As you can see, if you install illegal software on computer at you work and do your job with help of illegal software even without intention so sell or store it, it can be qualified as illegal use of IP objects. There could be the question about the sum of compensation. But it is another story.