FEDERATION TO THE WORLD TRADE ORGANIZATION 45 страница

1204. The representative of the Russian Federation stated that Part IV of the Civil Code implemented the most important international Agreements on protection of intellectual property (TRIPS, the Berne Convention (1971), Paris Convention, etc.).

1205. He further noted that Chapter 69 "General provisions" of Part IV of the Civil Code contained the list of "protectable" results of intellectual activity and equivalent means of individualization of legal persons, goods, works, services, and enterprises. These results of intellectual activity and means of individualization, as particular intangible objects of protection by law, were unified in the Civil Code under the definition of "intellectual property". The rights, arising in connection with intellectual property, were named in the Civil Code, as "intellectual property rights" and included personal non-property rights belonging to the authors of creative achievements (e.g., droit de suite, etc.) as well as exclusive rights, which were property rights, and, therefore, an object of civil turnover, as well as a range of other rights, which could ultimately be related neither to the content of an exclusive right nor to personal non-property rights (for example, the right of following in the copyright).

1206. The representative of the Russian Federation informed Members of the Working Party that an exclusive right was treated in the Civil Code as the right of its holder to use the result of intellectual activity or the means of individualization at his own discretion in any way that did not contradict the law. The Civil Code also provided that the holder of the exclusive right could dispose of it at his own discretion, if the Civil Code did not provide otherwise, inter alia, in accordance with a contract to alienate this right to another person or to provide another person with the right to exploit the respective result of intellectual activity or respective mean of individualization in established forms (i.e., on the basis of a licence). Any of the limitations on exclusive rights could be imposed only if the limitation did not inflict unjustified harm to the ordinary use of results of intellectual activity, or means of individualization and did not impair in an unjustified manner the legitimate rights of the right-holder. Several Articles, including Article 1241, referred to general provisions on alienation of exclusive rights through contract and contracts on licensing, and also to cases of lapse of an exclusive right to other persons without contractual relationships.

1207. Some Members of the Working Party requested clarification of the scope and content of the term "exclusive rights" as used in Articles 1229, 1231 and other Articles of Part IV of the Civil Code. In particular, Members asked whether this term would include economic rights, such as the rights of remuneration provided for in Articles 11bis and 13 of the Berne Convention, Article 12 of the Rome Convention and Article 15 of the WIPO Treaty on Performances and Phonograms (WPPT), which some Members of the Working Party considered to be distinct from exclusive rights.

1208. The representative of the Russian Federation responded that a right to remuneration, under Russian law, was considered part of an exclusive right and covered by the term "exclusive rights" as used in Articles 1229, 1231, and elsewhere in the Civil Code. In some cases the right of remuneration might be the only part of the exclusive right retained by the right-holder. He explained that the first paragraph of Article 1229.5 of the Civil Code stated that the limitations on exclusive rights were established by the Civil Code "in cases when the use of the results of intellectual activities was permitted without the right-holders' consent, but when they retain their rights to a remuneration shall be established by the present Code". Recognizing the concerns of some Members of the Working Party, the representative of the Russian Federation confirmed that the Russian Federation would ensure that, from the date of accession the term "exclusive rights" as used in Articles 1229, 1231, and other Articles of Part IV of the Civil Code would be interpreted and applied as including the right to remuneration. The Working Party took note of this commitment.

1209. Some Members of the Working Party expressed concerns about the consistency of paragraph 5 of Article 1229 of the Civil Code, as it related to limitations on exclusive rights, with Articles 13, 17, and 30 of the WTO Trade-Related Aspects of Intellectual Property Rights Agreement (hereafter: WTO TRIPS Agreement) and asked for additional clarification of this provision. They noted that the language in paragraph 5 of Article 1229 did not correspond to any of the relevant Articles of the WTO TRIPS Agreement.

1210. The representative of the Russian Federation responded that Article 1229 contained only the general principles for limitation of exclusive rights which cover the whole sphere of intellectual property rights. Thus instead of mentioning "patents", "trademarks", "copyright or related rights" only, the provisions of Article 1229 of the Civil Code covered all the results of intellectual activity and means of individualization, and all objects subject to protection. The specific limitations for copyright, for example, were to be found in Articles 1272 to 1280 of the Civil Code. In his view, those limitations did not conflict with a normal exploitation of the work and did not unreasonably prejudice the legitimate interests of the right-holder. At the same time, from a practical point of view, the Civil Code approach seemed to be more convenient for application, as it contained factual criteria for the estimation of barriers to the common course of use of the results of intellectual activity (or means of individualization). He also noted that Paragraph 3 of Article 1229.5 of the Civil Code stipulated that exceptions must "not impair in an unjustified manner the lawful interests of the right-holders". While the interests of third parties were not named directly, the necessity of taking into account the interests of third parties (consumers and others) was based on the general principles of the civil law (Article 1 of the Civil Code).

1211. Some Members of the Working Party continued to have serious concerns about whether the provisions of the Civil Code on limitations on exclusive rights complied with Articles 13, 17, and 30 of the WTO TRIPS Agreement. Moreover, they expressed concerns that some of the specific limitations, such as those set-out in Articles 1270 (excluding temporary reproductions), 1273, and 1306, among others, went beyond the limitations permitted under Article 13 of the WTO TRIPS Agreement. Similar concerns were expressed about the limitations on patent and trademark rights. In these Members' view, judicial and other authorities would be making decisions based on the language in the Civil Code, which did not correspond to the language in the WTO TRIPS Agreement and which had not been previously applied. These Members requested that the Russian Federation bring the limitations to exclusive rights into compliance with the WTO TRIPS Agreement.

1212. Recognizing the continuing concerns of some Members of the Working Party, the representative of the Russian Federation confirmed that Article 1229 paragraph 5 of the Civil Code had been amended to replace the previous language on limitations on rights with separate provisions that reflected the respective elements of Articles 13, 17, and 30 of the WTO TRIPS Agreement and which would relate to the corresponding intellectual property rights.

1213. Some Members of the Working Party expressed concerns about the provisions of Article 1244 of the Civil Code, and requested that collecting societies not grant licenses of any exclusive right without the explicit authorisation of the right-holder.

1214. In response, the representative of the Russian Federation stated that the provisions on regulation of organizations providing management of copyright and related rights on a collective basis (Articles 1242 to 1244), were considered to be a significant improvement over the previous situation. According to the Civil Code, the right to engage in collective management of copyright and related rights without the express consent of the right-holder, was permitted only with respect to certain rights set-out in Article 1244.1 and could be done only through organizations that had obtained State accreditation to perform that activity. Article 1244.3 permitted a government-accredited collecting organization to administer rights and collect compensation for right-holders for the specific right or rights for which the organization had obtained accreditation without concluding a contract with the right-holder. The rights subject to such collective management were significantly fewer than those under Article 45 of the Law "On Copyright and Neighbouring Rights" of 1993, which Articles 1242 to 1244 replaced. Sub-paragraph 1 of Article 1244.2 provided that for each right, subject to collective administration, only one organization could receive accreditation. That organization was determined on the basis of a tender. The requirement for accreditation provided the opportunity for right-holders and the Government to control the activity of such an organization. Article 1244 set-out an exhaustive and closed list of rights that could be subject to collective administration without a contract with a right-holder. In particular, these organizations were not allowed to permit the reproduction and distribution or other use of works over the internet. Moreover, a right-holder who had not signed a contract with an accredited organization for the administration of his rights, had the right to refuse its services at any moment (Article 1244.4 of the Civil Code). While other (non-accredited) organizations could engage in collective management of rights, such an organization could do so only on the basis of a contract concluded pursuant to Article 1242 of the Civil Code. He further stressed that the Civil Code dramatically reduced the number of organizations engaged in collective management of copyright and related rights, and significantly limited the rights subject to collective administration, without the right-holders' consent.

1215. Some Members continued to express concerns regarding the possibility of the collective administration of any rights without the express consent of the right-holder to such management, and requested further amendments to Article 1244. These Members also stressed the need to adopt measures to monitor and hold accountable those organizations engaged in collective management of rights to ensure that right-holders received the remuneration that was due to them.

1216. The representative of the Russian Federation noted in response, that the possibility of non-contract administration of rights had been limited to the maximum extent possible in the Civil Code in comparison to the previously applied Russian legislation. He further noted that the sphere of collective administration of rights in the Russian Federation would be reformed steadily through step-by-step limitations of the sphere of non-contractual representation. He confirmed also that the Russian Federation would adopt necessary measures to monitor and hold accountable organizations engaged in collective management of rights to ensure that right-holders received remuneration that was due to them.

1217. Members of the Working Party welcomed the progress made in limiting non-contractual administration of rights in the Civil Code, as well as the confirmation that the Russian Federation would adopt measures to monitor and hold accountable collecting societies so as to ensure that right-holders received the remuneration that was due to them. These Members of the Working Party noted that the proposed process of gradually limiting non-contractual administration of rights created difficulties for right-holders.

1218. Recognizing the continuing concerns of Members of the Working Party with regard to management of rights without a contract with the right-holder or his/her representative, the representative of the Russian Federation stated that the Russian Federation would review its system of collective management of rights in order to eliminate non-contractual management of rights within five years after Part IV of the Civil Code entered into effect. The representative of the Russian Federation further confirmed that, in response to the concerns of some Members of the Working Party as regards measures to monitor and hold accountable collecting societies so as to ensure that right-holders received the remuneration that was due to them, the Russian Federation had put into effect regulations necessary to apply such measures and collecting societies would be monitored and held accountable to right-holders according to the regulations of the Russian Federation. The Working Party took note of these commitments.

1219. Some Members continued to have concerns regarding the functioning of the accredited collecting management societies and requested additional information on the review of the system of collective management of the Russian Federation. In response, the representative of the Russian Federation informed these Members that his Government envisaged to conduct the planned review of the system of collecting management of rights in consultation with interested Members with a view to ensure that the system was implemented in full conformity with the WTO obligations of the Russian Federation.

1220. The representative of the Russian Federation informed Members of the Working Party that in addition to the legal framework for protection and enforcement of intellectual property in 2002, the Government had established a Commission for Counteracting Infringements in the Sphere of Intellectual Property, its Legal Protection and Use, to coordinate and guide the joint efforts of Government authorities in the field of intellectual property protection. In 2010, the name of the Commission became the Sub-commission for Technical Regulation and Counteracting Infringement in the Sphere of Intellectual Property, its Legal Protection and Use. The Sub-commission was chaired by the Ministry of Industry and Trade (MIT) and reported to the Committee on Economic Development and Integration. The main objectives of the Sub-commission were to ensure the implementation of a unified Government policy with regard to legal protection and use of intellectual property and counteracting infringements of intellectual property through improvements in enforcement, ensure effective cooperation and coordination of activities of Federal Executive bodies, regional executive bodies, State and other organizations, and increasing international cooperation in this sphere. The Sub-commission also had as its objectives: developing proposals on improving the normative legal base for protection and enforcement of intellectual property rights; forming a positive environment for the development and protection of intellectual property; working out measures to stimulate application of high technologies to production, and ensuring of the exchange of the results of intellectual activity between the military and civil spheres.

1221. The Sub-commission was a permanent body executing the following functions: conducting complex analysis of situations existing in the field of intellectual property in the Russian Federation, working out recommendations on prevention and suppression of the offences in the said field; coordinating the activities of the Federal Executive Authorities, regional executive authorities, State and other entities in the field of counteraction of infringement through improvements in enforcement of intellectual property laws, legal protection and use of intellectual property; examining drafts of Federal laws and other legal acts within the field of competence of the Commission; setting priorities for activities in the field of legal protection and use of the intellectual property; examining and forwarding to the Commission on Economic Development and Integration, suggestions concerning elaboration and implementation measures aimed at resolving issues related to legal protection and use of the intellectual property, particularly suggestions concerning the creation of an economic stimulus system, such as the establishment of Special Economic Zones, to encourage creation of intellectual property, assuring that enterprises in the Russian Federation know the benefits of creating intellectual property and how to commercialise their intellectual property; examining and forwarding to the Government of the Russian Federation and the President of the Russian Federation, suggestions concerning increasing international cooperation of the Russian Federation in the field of counteraction of infringement through improvements in enforcement of intellectual property laws, its legal protection and use, as well as suggestions on participation of the Russian Federation in the appropriate international Agreements; assisting in the control of implementation of Decisions of the President of the Russian Federation and of the Government of the Russian Federation within the jurisdiction of the Sub-commission; determining the measures concerning regulation of the transfer abroad of the results of the intellectual property created at expense of the Federal budget; and, examining suggestions concerning regulation of the procedures of registration of results of the intellectual property created at expense of the Federal budget.

Participation in international treaties

1222. The representative of the Russian Federation further noted that his country had been a Member of the World Intellectual Property Organization (WIPO) since 1970 and was a party to most international treaties on protection of intellectual property. He confirmed that the Russian Federation was a party to, inter alia, the Paris Convention for the Protection of Industrial Property (Stockholm Act of 14 July 1967) (the "Paris Convention"); the Berne Convention for the Protection of Literary and Artistic Works (the "Berne Convention"); the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (the "Rome Convention); the Madrid Agreement Concerning the International Registration of Marks (Stockholm Act); the Patent Cooperation Treaty (PCT); and the Singapore Trademark Law Treaty (2006). The representative of the Russian Federation stated that the Russian Federation had acceded to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) in February 2009, even though Article 1 of the WTO TRIPS Agreement did not require WTO Members to join these treaties. He further noted that when the Russian Federation became a party to the Berne Convention, it did so with a reservation on the application of Article 18 of the Convention. Further, when the Russian Federation became a party to the Rome Convention on 26 May 2003, it did so with the following reservations: non-application of the phonogram criteria (in accordance with paragraph 1 (b) of Article 5 of the Convention); protection of broadcasting in accordance with paragraph 2 of Article 6 of the Convention; and non-application and limitation of protection under Article 12 of the Convention with regard to phonograms. A more complete list of treaties to which the Russian Federation was a party was provided in documents WT/ACC/RUS/29 of 13 November 1998, WT/ACC/RUS/29/Rev.1 and WT/ACC/RUS/41 of 26 October 2000, and WT/ACC/RUS/64 of 3 October 2011.

1223. He added that despite the fact that the Russian Federation was not a party to the Treaty on Intellectual Property in Respect of Integrated Circuits (IPIC), adopted in Washington on 26 May 1989, Chapter 74 of the Civil Code reflected the provisions of the IPIC Treaty. In his view, the Civil Code also included provisions necessary to comply with Section 6 of the WTO TRIPS Agreement.

1224. The representative of the Russian Federation confirmed that the Russian Federation would lift its reservation to the Berne Convention by the time of its accession to the WTO. The Working Party took note of this commitment.

1225. The representative of the Russian Federation stated that fees and charges for the patenting of inventions, utility models and industrial designs, the registration of trademarks, service marks, and designation of place of origin, the granting of rights to use designations of origin, and the official registration of computer programmes, databases, and layout designs of integrated circuits were collected in accordance with Council of Ministers/Government Regulation No. 793 of 12 August 1993, (as last amended on 26 January 2007). Legal entities and individuals of the Russian Federation and of countries that were party to international Agreements on mutual payments in rubles (RUB) with the Russian Federation, paid duties and fees in Russian ruble. Legal entities and individuals of other countries paid duties and registration fees in US dollars.

1226. Responding to the question of a Member of the Working Party, the representative of the Russian Federation informed Members of the Working Party that there were differences between fees applying to individuals permanently residing in the Russian Federation and Russian legal entities and fees applying to individuals permanently residing outside the Russian Federation and foreign legal entities. He confirmed that from the date of the accession of the Russian Federation to the WTO, the provisions of Article 3 of the WTO TRIPS Agreement would be implemented without recourse to a transition period and in full scope. Therefore, the above-mentioned difference in fees would be eliminated. The Working Party took note of this commitment.

2. STANDARDS CONCERNING AVAILABILITY, SCOPE

AND USE OF INTELLECTUAL PROPERTY RIGHT

Copyright and Related Rights

1227. The representative of the Russian Federation said that copyright and related rights were protected under the provisions of chapters 69, 70 and 71 of the Civil Code. Chapter 70 "Copyright" was based on traditional principles and provisions, referring to such general terms of copyright as objects, subjects, their authorities and warrants, terms of validity of the rights of the author, etc. The Chapter included provisions on software and databases that earlier, being the objects of copyright, were dealt with under the Law of the Russian Federation No. 3523-1 of 23 September 1992 "On the Protection of Computer Programs and Databases".

1228. He further informed Members of the Working Party that, in his view, the provisions of Chapter 70 were in compliance with the WCT. He noted that the Civil Code addressed several issues of particular concern to Members and right-holders, e.g., that making a copy of a recording of a computer program to PC-memory was considered as the use of the work; the possibility of application of technical means of protection of copyright; bringing to the public knowledge (making available) was considered to be an exclusive right, and considered trends in international legal regulation in this field. A number of provisions strengthened the protection of rights of authors and their heirs. The provisions of the Chapter determined and regulated personal non-property and property rights of authors and other right-holders, and also means of disposal of the above-mentioned rights in details. Furthermore, the provisions of the Chapter established different measures that could apply while litigation was ongoing (for example, prohibition of performance of particular activities, seizure of copies of a work, equipment and materials).

1229. Some Members expressed concerns regarding the provision in Article 1299, which also applied to Article 1309 relating to "Technical Protection Measures." In their view, these measures needed refinement to eliminate the possibility that commercial services would develop to assist individuals with circumvention; and to provide certainty and clarity to the consumer electronics, telecommunications, and computer industries that these provisions would not unnecessarily affect the products these industries sell. Members noted that paragraph 3 of Article 1299 referred to the remedies in paragraph 1301 and requested information on whether injunctive/preventive remedies were available to address violations of paragraph 2 of Article 1299.

1230. In response, the representative of the Russian Federation explained that the reference to Article 1301 in Article 1299 was necessary to provide a right to compensation to the author or other right-holder for violations of the provisions of paragraph 2 as engaging in the activities specified in paragraph 2 was not considered to be part of an exclusive right. With regard to the availability of injunctive/preventive measures, he referred Members of the Working Party to Article 12 of the Civil Code which stipulated ways of protecting civil rights, which include rights provided under Article 1299 that included the restoration of the situation which existed before the given right was violated, and the suppression of the actions that violate the right or create the threat of its violation, compensation of losses, as well as other methods stipulated in the Law.

1231. As regards the concerns of some Members of the Working Party that the provisions of Articles 1299/1309 of the Civil Code relating to technical protection measures and rights management information would not provide the level of protection that the WCT and WPPT required, the representative of the Russian Federation informed Members of the Working Party that Article 1299.1 of the Civil Code defined the term "technical means of protection of copyrights" as any technology, technical devices or their components controlling access to work, preventing, or limiting the conduct of activities, including reproduction, that were not permitted by the author or other right-holder with respect to the work. The actions that were prohibited with respect to works were listed in point 2 of the same Article. These actions included, in particular, those that were directed at eliminating the limitations on use of the work, which were established by application of technical means of protection of copyrights, and also the preparation, distribution, renting out, providing for temporary uncompensated use, import, advertising of any technical device or its components, and use of such "technical means of protection" for the purpose of obtaining a profit, or providing corresponding services, if as a result of such actions the use of the "technical means of protection" becomes impossible or these technical means cannot ensure proper protection of the aforesaid rights. Thus, "technical means" under Article 1299.1 of the Civil Code meant "any" technologies, and the ban on "distribution" of those means in point 2 of same Article covered "any" cases of granting of access to the "technical means", including such access as a result of sale and purchase. The inclusion of the provisions on the technical protection measures into the Civil Code, in his view, quite corresponded with the general requirements of Article 11 of the WCT and Article 18 of the WPPT.

1232. He further explained that there were no exceptions from Article 1299.2 of the Civil Code and certainly it did not "cut into protection of the technology". In response to the concerns about the scope of Article 1299.2 (2), the representative of the Russian Federation confirmed that, as of the date of the accession of the Russian Federation to the WTO, the Russian Federation would ensure that this provision would be interpreted and applied in a reasonable manner in respect of technical means that were directed to circumvent technical protection measures based on criteria such as whether the device or service was promoted, advertised or marketed for the purpose of circumvention, whether the device or service had a purpose or use that was of limited commercial significance other than to circumvent technical means of protection, and whether the device or service was primarily designed, produced, adapted or performed for the purpose of permitting or facilitating circumvention of technical protection. The Working Party took note of this commitment.

1233. Members continued to have concerns regarding the provisions of the Civil Code on technical protection measures. The language in paragraph 3 of Article 1299, for example, would preclude a remedy against a commercial service that provided assistance and means to circumvent a technological protection measure. In these Members' view, violations of Article 1299 were separate from infringement of exclusive right in copyright or related rights and a right-holder needed to be able to seek a remedy against an individual or commercial service for circumvention of technical protection measures even if no copyright was infringed.

1234. The representative of the Russian Federation confirmed that the exception provided in paragraph 3 of Article 1299 had been eliminated and no other exception had been provided.

1235. Recalling the statements of the Russian Federation regarding limitations on exclusive rights in copyright and related rights, some Members questioned whether several of the specific limitations set-out in Chapters 70 and 71 exceeded those permitted under the WTO TRIPS Agreement and Berne Convention. In particular, Article 1273 created a general exception that allowed reproduction by "citizens exclusively for personal purposes of a work lawfully made public... without the consent of the author or other right-holder... and without compensation". Article 1306 features a similar provision making this and other "free use" copyright exceptions applicable in the context of related rights. While Article 1273 specified six categories of works that were not subject to this generalized exception, the exception was otherwise applicable to any work "lawfully made public," and therefore was not limited to certain special cases. Furthermore, these Articles would permit reproductions in ways that would conflict with the normal exploitation of works in a variety of contexts. These exceptions would also, in these Members' view, unreasonably prejudice the legitimate interests of the right-holder by precluding any compensation for these reproductions. These Members were also concerned about the meaning of the term "personal needs" as vague and overly broad.