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Assessment of draft law on mirrors of pirated web-sites in Russia after first reading

First assessment states that the law intended to prevent illegal dissemination and exploitation of intellectual property objects in Internet network. The committee on culture of Russian state duma, the “author” of this assessment, upheld conception of the draft law, but has its own comments.

It is necessary to make definition of derivative web-site more correct. For instance, the current Russian law does not provide definition of “automatic synchronisation”. It is also should be taken into account that the mirrors of web-sites can be exploited not only for illegal purposes, but also in accordance with law. Illegal purposes include copyright infringements as well as hate speech, war propaganda and placing other type of information entailing criminal or administrative responsibility. Therefore existing problem is wider than fighting with piracy and it requires complex solution intended to eliminate illegal exploitation of mirrors of web-sites.

The draft law proposes to include the subject of its regulation in writ proceedings in order to streamline adoption of courts decisions on restriction of access to derivative web-sites in Internet. Writ proceedings apply when undisputed requirements of property nature are considered, basically recovery of monetary sums. Undisputed requirements are confirmed by evidence in writing, their authenticity don’t raise a doubts. The debtor must admit such requirements and the judge don’t have to find out any additional circumstances.

The cases, which are proposed to be considered in writ proceedings, can’t be undisputed. Proposed definition of derivate web-site is based on the set of attributes of assessment nature. Such attributes can be interpreted differently. Therefore it is necessary to find out position of both sides or each side involved in dispute.

It is also should be taken into account, that court order can be repealed if the court has received from the debtor objections in relation to execution of such order. Objections must contain only reference to disagreement of debtor with issued court order. Thus it is very likely that the claimant would do double work, because if the court order is repealed, the claimant can only file a suit.

The second assessment, made by committee on communication, informational policy and technologies of Russian State Duma, also takes attention to definition of “derivative web-site in Internet network”. The committee believes the definition needs legal and linguistic improvement.

The definition is not clear in part of its wording “automatic redirection of user”. From technical point of view redirection does not relate to placing of “derivative web-site in Internet network”; “created as a result of moving”, the “moving” of web-site is not publication of content, which has been blocked. Proposed provisions of the draft law do not reveal the definition of “derivative web-site in Internet network” in a meaningful manner.

It was also noted that proposed definition must be harmonised with legislation on intellectual property. Especially what concerns definitions of translation, other derivative works (screening, adaptation, arrangements and other works of this kind) provided in article of 1269 of Russian civil code. But this article does not contain any definition of derivative work.

The third assessment proposes to exclude ambiguous or assessing categories from definition of derivative web-site. It is not clear what means a web-site. In order to restrict access to web-site it is important to have information about domain name and network address. It is not clear what means “display” of web-site.

It is not clear when a derivative web-site can be considered similar to confusion with other web-site in Internet. It is also not clear what is “moving of web-site” and what is difference between “moving” and “copying” and “automatic synchronisation” of web-site. It is necessary to clarify definition of automatic synchronisation.

From provisions of draft law it is clear that only right holder has the right to require restriction of access to derivative web-site. Therefore any other person does not have such right. Writ proceeding does not take into account and does not respond to the interests of right holders when they need to protect their copyright operatively and expeditiously and also deprives the debtor (the owner of web-site in question) of the proper judicial protection.