Fifty Shades of Grin-and-Bear-It as publishers struggle with Russian online infringements

In his younger days as a PhD student, this Kat was fascinated by copyright law in the then USSR, a vast and apparently largely snowbound zone in which Communist Party members were top dogs, the dignity of labour was forever praised by people who never seemed to do any, lawyers were the lowest form of life -- and personal property rights were the lowest form of law.  While accession to the international copyright conventions and the changes wrought by Glasnost, Perestroika and the dismantling of the Evil Empire have improved things somewhat, this Kat -- even in more recent visits to what is now the Russian Federation -- has rather got the impression that the legal profession and the enforcement of intellectual property rights have yet to make it to the Top Ten Things That Russians Really Love.

This impression has been reinforced by the content of the guest post by IP attorney and blogger Lucas Michels, who brings us up to date with a topic that is very much in our minds these days -- the enforcement of copyright against digital exploitation on the internet.  Lucas explains:

Current Lawsuit Exposes Limitations in Russia’s New Online Copyright Laws

Katrina aspires to reach 50 shades of grey,
but right now she's only managed about 30 ...

The Russian Legal Information Agency (RAPSI) reported on Monday that one of Russia’s leading publishing houses, Eksmo, filed a copyright infringement lawsuit against Russia’s largest social media site, VKontakte, in the Russian Supreme Commercial Court, claiming damages totalling 350,000 roubles (approximately £5,940). According to reports, four digital books including the recently popular Fifty Shades of Grey by British author E.L. James, were placed on VKontakte’s website without authorization. Eksmo claims that VKontakte was provided notification about the unauthorized posting of the digital books, but ignored such notification.

Although this Russian case is a typical internet service provider (ISP) versus rights holder lawsuit, it highlights limitations in Russia’s new online copyright laws that have practical enforcement implications for many copyright owners in Russia -- and indeed throughout the world. Russia’s recently-passed online copyright legislation, commonly referred to as the “Anti-Piracy Law” (Federal Act No.187-FZ of July 2, 2013 on Amendments to Certain Legislative Acts of the Russian Federation Concerning the Protection of Intellectual Rights in Information and Telecommunication Networks), establishes procedures allowing a copyright owner or rights holder to submit a notice to the Moscow City Court in order to obtain court-ordered injunction, ultimately forcing a Russia-based ISP to remove infringing content they host on their website. The problem with the new Law is that it only extends such protection to films and videos, excluding books and other written works, not to mention software code or other commonly copyright-protected works. Beyond excluding works commonly-acknowledged as protectable under international copyright treaties such as the Berne Convention and TRIPS, the Anti-Piracy Law’s exclusion of books and written works otherwise contradicts Russia’s established copyright laws that define protectable works broadly as “works of sciences, literature, and art” under Article 1255, Part IV, Civil Code of the Russian Federation.

This dichotomy in Russian online copyright protection means that Russian and foreign copyright owners and rights holders of non-film/video works will likely have to obtain a regular preliminary injunction from a Russian Court in order effectively to prevent their works from being unlawfully distributed on a Russian-hosted website. This poses substantial procedural enforcement challenges for such copyright owners and rights holders. As the U.S. copyright industry advocacy group the International Intellectual Property Alliance reported last week, Russian Courts do not adequately grant preliminary injunctions against copyright infringement despite recent reform efforts. 

"Samovar rights are
are proving impossible
to enforce online"

So how does all of this impact Eksmo’s lawsuit? Well, Eksmo may have difficulties getting a preliminary injunction from the Supreme Commercial Court to remove the digital books from VKontakte’s website (assuming the digital books are still hosted on the website). Also, Eksmo’s claims that VKontakte ignored infringement notification, and VKontakte’s recent listing in the U.S. as one of the world’s “notorious markets” for IP piracy, would make one believe that VKontakte may not be persuaded to settle this lawsuit. Yet, reports of VKontakte’s aspirations to be a major legitimate player in the Russian online music market, and their recent efforts to legally provide copyright-protected content on their website, may persuade VKontakte to settle their lawsuit with Eksmo, and show the world that it is serious in combating copyright piracy. However, only time will tell how the parties will proceed in this lawsuit.