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FEDERATION TO THE WORLD TRADE ORGANIZATION 49 страница



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1328. In response to the questions of some Members with regard to ex officio authority, the representative of the Russian Federation stated that the CU Customs Code and the Federal Law on Customs Regulation gave explicit rights to customs authorities to take action "ex officio" to stop the release of goods suspected of infringing copyright, related rights, trademarks, service marks and designations of place of origin. Thus, the customs authorities were endowed with powers to fully exercise the function of protecting intellectual property rights in the course of export and import operations, both on the basis of the application of the right-holder or without one in accordance with the "ex officio" principle of Article 58 of the WTO TRIPS Agreement. In addition, in accordance with Chapter 28 (Articles 28.2 and 28.3) of the Code of Administrative Offences, the customs authorities could upon their own initiative, if they had acquired prima facie evidence, initiate an administrative investigation. In the course of such investigation, customs authorities were authorised to suspend the release of suspected goods (to execute requisitioning or seize) and seek from the right-holder any information that may assist them in the investigation. All persons concerned had the right to familiarize themselves with the record of the case, as well as submit explanations and comments, which were attached to the record of the case. The suspension of the release of suspected goods normally lasted one month (a period prescribed for the administrative investigation) and could be extended for a maximum of six months. Final decisions on administrative offences were taken by a court.

1329. A Member of the Working Party noted that although ex officio action by Customs was foreseen in the law, the right-holders consistently reported that it was not available in practice. This Member asked the authorities of the Russian Federation to provide information about the actual implementation of this rule and ensure that it was being implemented. The representative of the Russian Federation confirmed that the Russian Federation would, with the objective of strengthening enforcement against acts of infringements of intellectual property rights at the border of the Russian Federation, from the date of accession, encourage customs officials to use such authority in order better to protect intellectual property rights, such as copyright and related rights, trademarks and geographical indications.

1330. He further explained that criminal procedures could also be used in the framework of border procedures. Federal Law No. 144-FZ of 12 August 1995 "On Operational-Investigative Activity" authorizes customs authorities to carry out operational-investigative actions to identify, prevent and suppress illegal import or export of goods containing objects of intellectual property to and from the territory of the Russian Federation, and to receive and gather updates on events and actions associated with illegal cross-border shipment of intellectual property, and on illegal channels through which counterfeit and pirated goods may be carried across the border. If customs authorities had reasons to consider that there was an element of crime in a particular case, a criminal investigation could be opened and the case would be treated in accordance with standard rules of criminal procedures.

1331. More generally, the representative of the Russian Federation confirmed that intellectual property right-holders would be provided, whether by the Russian Federation or the competent bodies of the Customs Union, with procedures related to border measures that complied fully with the relevant provisions of the WTO TRIPS Agreement (Articles 51 to 60). The Working Party took note of this commitment.

 

Criminal Measures

 

1332. The representative of the Russian Federation stated that the Criminal Code of 13 June 1996 as last amended on 9 April 2007 included four articles specifically dealing with intellectual property: Article 146 (Copyright and Related Rights Violations); Article 147 (Patents Violations); Article 180 (Trademark Violations), and Article 183 (Illegal Receipt and Disclosure of Information Containing Commercial, Tax or Bank Secrets). The representative of the Russian Federation informed Members of the Working Party that during 2006 - 2007, the production of counterfeit optical discs was suppressed in the Russian Federation at ten licensed plants and at 17 illegal plants. Also the activities of six major wholesalers and 30 illegal warehouses of counterfeit optical media were stopped. More than 8.5 million of counterfeit CD and DVD discs were seized for the total amount of more than RUB 1 billion. In 2006, 7,423 crimes stipulated by Article 146 (copyright infringement) of the Criminal Code of the Russian Federation were discovered, 5,126 criminal cases were sent to the court, criminal procedures were instituted against 3,833 persons; and, 991 crimes stipulated by Article 180 (trademarks violations) of the Criminal Code of the Russian Federation were discovered.

1333. The Members of the Working Party noted that improvements were needed with respect to the enforcement of existing laws. For example, penalties imposed were often suspended or at levels insufficient to deter further infringement. These Members emphasized the continuing need for additional enforcement efforts by the Government of the Russian Federation, in particular against optical disc production and distribution. In 2005, there were over 40 optical disc plants in the Russian Federation with production capacity far exceeding legitimate demand. Some of these manufacturers of optical discs, which included intellectual property, were located on Government-controlled sites. Location on these limited-access sites could impede enforcement efforts. Members suggested that the Russian Federation needed to increase surprise plant inspections and raids, prosecute plant operators and owners who manufacture pirate material and impose deterrent criminal penalties, close plants that violate copyright rights, and stop the exportation of pirated optical discs and other copyrighted materials from the Russian Federation.

1334. In response, the representative of the Russian Federation explained that the actions of the Government to remove optical media plants operating on the territory of government-controlled military-industrial sites had been intensified. As a result of these efforts, no optical media plants were operating on the territory of government-controlled military industrial sites. Moreover, the Government did not intend to lease or otherwise make such sites available to plants producing optical media bearing content protected by copyright or related rights in future.

1335. As regards the activities of law enforcement agencies engaging in surprise plant inspections and raids, he noted that in the first six months of 2007, these agencies discovered and suppressed the activities of four licensed and 16 illegal plants producing optical discs and 30 illegal warehouses engaged in production and distribution of counterfeit optical media. Eight-and-a-half million counterfeit CD and DVD discs, worth over RUB 1 billion were seized. He noted that the policy of his Government was to ensure the continuation of efforts to suppress effectively the illegal activities of enterprises engaged in the production of optical discs.

1336. While Members welcomed the results of enforcement efforts in 2007 with regard to optical disc plants, some Members continued to emphasize the need for more intensive inspection efforts, in particular the need for un-announced inspections of plants. They expressed concern about the decline in the number of inspections and prosecutions of plants conducted during the second and third quarter of 2007, while the Russian Federation reorganized the Federal body responsible for inspection of optical discs (OD) plants.

1337. Members also noted that the Russian Federation needed to address in laws or regulations some issues that had arisen during attempts to enforce intellectual property rights, in particular instances of copyright infringement. Individuals and enterprises (legal "persons") must be held responsible for all their IPR infringing activities and subject to civil and/or criminal liabilities. In cases of infringement of an IPR which the owner of the IPR deemed the circumstances serious, the person directly responsible for the infringement should be prosecuted under the relevant provisions of the criminal law. Other necessary reforms included providing for criminal prosecution and penalties under the Criminal Code for aiding in copyright infringement on the Internet, including through circumvention of technological protection measures, and criminalizing certain cam-cording activities (i.e., making unauthorised copies of films in theatres). Piracy on the Internet was a serious and growing concern, as right owners had documented the operation of numerous websites based in the Russian Federation that offered pirated material. Members noted that with regard to internet piracy, there has been inadequate enforcement activity in the face of increasing online piracy. For example, Members noted that the Russian Federation was one of the few countries in the region that still had large illegal pay-per-download sites.

1338. In response, the representative of the Russian Federation stated that his Government would ensure that facilities on the territory of government-controlled military-industrial sites would not be leased or otherwise made available to companies producing optical media bearing content protected by copyright or related rights and action was being taken to stop such production on these sites. In addition, the enforcement authorities would continue to conduct repeated, unannounced inspections of all plants licensed to produce optical media bearing content protected by copyright or related rights. Such inspections would take place regularly, without prior notice, and at any time, day or night. If evidence of unauthorised production of optical media bearing content protected by copyright or related rights on a commercial scale was found, criminal proceedings would be initiated. Enforcement officials would also continue to conduct actions to find and shut down unlicensed plants producing optical media bearing content protected by copyright or related rights, as well as actions to find and inspect warehouses that store significant quantities of pirated and counterfeit goods. If pirated or counterfeit goods were found at these locations, the goods would be seized and retained as evidence, investigations would be initiated, including investigations to determine the owner, distributor, and manufacturer of such goods, and prosecutions of these persons and enterprises initiated. In particular, criminal proceedings would be initiated in cases of piracy or counterfeiting on a commercial scale. The Working Party took note of these commitments.

1339. With regard to piracy on the Internet, the representative of the Russian Federation noted significant efforts on the part of the Government to shut down servers situated on the territory of Russia and websites that promote illegal distribution, which included making the object of a copyright or related right available, of content protected by copyright or related rights. In the first quarter of 2007, there were a number of large-scale operations to discover and suppress the functioning of Internet resources that were engaged in the distribution of unlicensed software and counterfeit audio-visual works and phonograms. As a result, 166 suspected informational resources (sites) were discovered, including 96 sites that were operating from technical means of Russian-based hosting companies, and 70 that were operating from technical means of foreign-based hosting companies. The activity of 72 resources (sites), which were operating in the territory of the Russian Federation, was suppressed. In the first six months of 2007, the relevant authorities suspended the functioning of 90 internet sites engaged in illegal distribution of copyright and related rights objects with servers situated on the territory of the Russian Federation and 38 criminal cases under Article 146 of the Criminal Code were instituted against persons engaged in administration of these sites. He confirmed that the Government would continue to take actions against the operation of websites with servers located in the Russian Federation that promote illegal distribution of content protected by copyright or related rights, such as phonograms (sound recordings) and investigate and prosecute companies that illegally distribute objects of copyright or related rights on the Internet. The Working Party took note of these commitments.

1340. The representative of the Russian Federation reported that during 2007, 7,874 crimes stipulated by Article 146 of the Criminal Code of the Russian Federation were discovered (up 9 per cent compared to the same period of 2006), 7,418 in a large scale, and especially large scale. 5,405 criminal cases were sent to the court (up 5 per cent compared to 2006), and criminal procedures were instituted against 4,088 persons (up 6.5 per cent compared to 2006). The amount of damage inflicted came to RUB 1,154 billion (100 per cent lower than 2006), and property and materials valued at RUB 2.44 billion was seized (up 162 per cent compared to 2006). During 2007, 957 crimes stipulated by Article 180 of the Criminal Code of the Russian Federation were discovered, criminal procedures were instituted against 154 persons.

1341. As regards the copyright infringements on the Internet, the representative of the Russian Federation noted that Article 146 of the Criminal Code (as amended on 9 April 2007) reinforced criminal liability for illegal use of objects of copyright and related rights as well as for purchase, storage, transportation of counterfeited works or phonograms for the purpose of their sale on a commercial scale. The penalty provided by Article 146 could be up to six years of imprisonment and also covered the illegal use of works through posting them on the Internet. He confirmed that, according to the Civil Code, reproduction (including temporary copies on the memory of a computer) of copyright-protected audio-visual works without permission of its author, was illegal except for cases provided in the Code (e.g., reproduction for private purposes, reproduction for court purposes). Moreover as of 1 September 2006, an author had the exclusive right to perform his work so that the author could control when any user would have access to his work in interactive mode from any place and at any time - the right "to make it available to the public". The infringement of these rights would be considered as illegal use and would entail criminal responsibility, if it was done in on a commercial scale.

1342. The representative of the Russian Federation stated further that decisions on confiscation and destruction of counterfeit products and equipment used in their production were taken within the framework of criminal prosecution as provided in Articles 81 and 82 of the Criminal Procedure Code and it was a normal practice to confiscate these goods and machinery as "material evidence". Criminal procedure rules (Article 81 of the Criminal Procedure Code) were also applied with regard to destruction of confiscated "pirated" products. Under this Article, items which were used as "instruments of crime", "preserved traces of crime", or "which could serve as a means for detecting a crime and establishing circumstances of a criminal case" were recognised as "material evidence", filed to the criminal case, and could only be destroyed upon a decision of the court. Pursuant to the Criminal Procedure Code, when passing sentence, a court had to decide whether to order seizure or destruction of "material evidence" (including goods and machinery).

1343. The representative of the Russian Federation stated also that under Article 147 of the Criminal Code, the illegal use of an invention, utility model or industrial design, or disclosure of the essence of an invention, utility model or industrial design, without the consent of its owner or applicant before any official publication of information about them; illegal acquisition of authorship; or compelling of co-authorship were criminally punishable if these acts had inflicted serious damage. Article 147 provided punishment by fines of up to RUB 300,000 (more than 10,000 USD) or up to two years of wage, salary, or any other income of the convicted person, arrest for up to six months, or deprivation of liberty for up to six years. In accordance with Article 180, the illegal use of a trademark or service mark, appellation of origin, or similar designations for homogeneous goods, as well as the illegal use of a special marking, designating a trademark or designations of origin which had not been registered in the Russian Federation, were criminally punishable if these acts had taken place more than once or had inflicted serious damage. Article 180 provided punishment by fines of up to RUB 300,000 or up to two years of wage, salary, or any other income of the convicted person, arrest for up to six months, or deprivation of liberty for up to six years. As for Article 183 of the Criminal Code, it established criminal liability for the illegal receipt and disclosure of information containing commercial, tax, or bank secrets.

1344. Some Members responded that although the current Criminal Code (Article 146) permits the confiscation and destruction of pirate and counterfeit goods, Article 146 does not explicitly provide for the confiscation and destruction of the "machinery" used in the making of illegal copies. In response, the representative of the Russian Federation noted that the provisions of Part IV of the Civil Code, Civil Procedural Code, (Article 140), Arbitration Procedural Code and Code of Administrative Offences provided judges with the authority to order that materials and implements used to create the infringing goods be disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements (see Table 34 for the details).

1345. The representative of the Russian Federation explained that the general authority to seize, confiscate and destroy materials and implements used to create infringing goods, was provided in Article 104.1 of the Criminal Code and Article 81 of the Criminal Procedural Code. These Articles allowed for confiscation and destruction of the means for committing a crime. In the context of piracy and counterfeiting, this would include machinery and materials used to create the illegal goods. Article 104.1.1 (d) of the Criminal Code stipulated that implements, equipment and other means of committing a crime that belong to the defendant were subject to seizure in accordance with the decision of the Court. Article 81 of the Criminal Procedure Code stipulated that the implements used to commit a crime were to be retained as evidence and, in accordance with the decision of the Court, could be seized or destroyed.

1346. Some Members expressed concern regarding the requirement that illegal use of a trademark or service mark inflict serious damage as a condition for punishment. While Members appreciated that the Russian Federation used the market price of legitimate goods to calculate the thresholds for initiating criminal procedures, in their view, these thresholds did not authorize use of criminal procedures in all cases that could involve wilful trademark counterfeiting or copyright piracy on a commercial scale. These Members noted that Article 61 of the WTO TRIPS Agreement required Members to provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale.

1347. In response, the representative of the Russian Federation noted that under the comments to Article 169 of the Criminal Code of the Russian Federation, damage inflicted by actions specified in Article 180 of the Criminal Code of the Russian Federation, was to be regarded a serious one when it exceeds RUB 1.5 million (50,000 USD). For copyright and related rights, the amount specified in Article 146 was RUB 50,000 (approximately 1,700 USD). He further stated that, in his view, the application of thresholds was in conformity with the provisions of Article 61 of the WTO TRIPS Agreement, as these thresholds determined the commercial scale of wilful trademark counterfeiting or copyright piracy. He further explained that the application of thresholds was traditionally used in Russian legislation to separate criminal offences punishable by means of criminal prosecution from administrative misdemeanours. He further added that this clear and unambiguous criterion was an effective, practical tool for enforcement, as it can be implemented easily and contained no element of subjective evaluation. Further, he noted that, if the suspected infringer had been found to have previously engaged in infringement of intellectual property rights, including in an administrative proceeding, under the repeat-offender provisions, the thresholds mentioned above did not apply.

1348. Recognizing Members' concerns, the representative of the Russian Federation stated that, in order to improve the effectiveness of enforcement measures in the area of intellectual property rights, when determining the existence of a large or especially large scope of the activity, the prosecutor/court would take into account that, storage of pirated copies of works or phonograms for the purpose of sale was also considered to be a crime. Thus, application of the thresholds to the activity would take into account both the value of the pirated copies of works or phonograms that were sold, and the value of the pirated copies in storage. In accordance with the legislation of the Russian Federation, the value of pirated copies was calculated by reference to the value of the corresponding legitimate products, and not by reference to the price of the pirated product. This approach of taking into account copies in storage would also apply in cases of copyright infringement over the Internet.

1349. Some Members continued to have concerns that the threshold of the Russian Federation for application of criminal procedures and penalties precluded action against certain cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. These Members requested that the Russian Federation modify law and practice to ensure that criminal procedures and penalties would be applied to all cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. In their view, the value of the products that were counterfeited or pirated was not always a good indicator of whether the counterfeiting was wilful or if piracy was on a commercial scale. Other circumstances could establish wilful trademark counterfeiting and copyright piracy on a commercial scale. For example, in some cases, each individual act of piracy might involve a small amount of money, but given other conditions in the market, e.g., the number of pirated copies, or the existence of copies made before the release of the work, the acts were clearly on a commercial scale. Finding other evidence, such as a worn mould for making copies, would be another situation in which commercial scale piracy was evident.

1350. In response to concerns from Members regarding thresholds of the Russian Federation for application of criminal procedures and penalties with regard to cases of wilful trademark counterfeiting or copyright piracy on a commercial scale, the representative of the Russian Federation confirmed that the thresholds of the Russian Federation in such cases would be set and applied in a manner that reflected the realities of the commercial market place in the Russian Federation, including with regards to the internet market. The Working Party took note of this commitment.

1351. The representative of the Russian Federation noted that in accordance with the legislation in force on intellectual property, initiating actions to address the violations set-out in Article 146, paragraph 1, and Article 147, paragraph 1, of the Criminal Code, required the filing of a private complaint, and criminal procedures could not be initiated without a complaint by the right-holder (Article 20 of the Criminal Procedure Code). Other intellectual property criminal offences could be initiated through "public accusation" and the right-holder did not need to file a complaint (action could be taken "ex officio"). The time limits for investigation and working up of an accusatory act on cases provided for in paragraphs 1 and 2 of Article 180 of the Criminal Code in accordance with the Criminal Procedure Code were 20 days and, for the complex cases, 30 days from the date of institution of the criminal case. This term could be prolonged to 12 months in the complex cases. Official State examination of goods seized in criminal cases might be done by the Centre for Expertise of the Ministry of Interior. At the request from an anti-trust or law enforcement body and on the basis of a relevant court order, Rospatent experts provided an opinion regarding a trademark, invention or another industrial property issue. An investigator, prosecutor or court would then make a decision based on the results of the examination. The examination initiated by the law enforcement bodies was free of charge.

1352. Noting all the above, Members of the Working Party sought a commitment that the Russian Federation would be in compliance with the WTO TRIPS Agreement, including its enforcement provisions, as from the date of accession, without recourse to transitional arrangements.

1353. The representative of the Russian Federation confirmed that the Russian Federation would apply fully the provisions of the WTO Agreement on Trade-related Aspects of Intellectual Property Rights from the date of accession to the WTO, including provisions for enforcement, without recourse to any transitional period. The Working Party took note of this commitment.

 

POLICIES AFFECTING TRADE IN SERVICES

 

1354. The representative of the Russian Federation noted that the market for services of the Russian Federation began to develop only in the first part of the 1990s, following the domestic process of economic reforms, privatization, and liberalization of the entire economy of the Russian Federation.

1355. He further stated that the reform of the economy of the Russian Federation since then had created new services sectors and contributed to the development of existing ones.

1356. He noted that economic development in services was supported by the legislative process of the Russian Federation. Many laws and regulations were adopted to establish a legal framework for provision of services in general or in specific sectors. However, the domestic regulatory system had not kept up with the dynamism of the services markets of the Russian Federation. As an example, the banking crisis in August 1998 of the Russian Federation was particularly associated with inadequate approaches to, and lack of effective prudential requirements for banking activities that were established and which resulted in extreme dependence of the domestic financial system on short-term foreign capital markets. For the purposes of creating a favourable economic and investment climate, including in the sphere of services, the Russian Federation had embarked on a series of actions to reduce restraints on the economy, involving streamlining of procedures for company registration, downsizing the list of types of activities subject to licensing, and reduction of the frequency of inspections of enterprises. It could be expected that the regulatory framework of the Russian Federation governing the services sector would be continuously subject to frequent adaptations and improvement in light of experience and of progress made in building domestic capacity to supply services on a competitive basis.

1357. Responding to the concerns of Members, the representative of the Russian Federation clarified that all normative legal acts of general application pertaining to or affecting trade in services, including those that established or implemented procedures and requirements for licensing of service activities, were published in a number of official sources. When published, such normative legal acts contained information on their effective date and scope of application. When a normative legal act did not contain any information on its effective date, the date was determined by another normative legal act establishing rules for entry into force of specific types of normative legal acts. For example, according to Federal Law No. 5-FZ of 14 June 1994 "On the Order of Publishing and Coming into Effect of Federal Constitutional Laws, Federal Laws, Acts of the Chambers of the Federal Assembly", Federal Constitutional Laws, Federal Laws and Acts of the Chambers of the Federal Assembly became effective after ten days of their official publication, unless the law or act stated a different date. Similarly, according to the Presidential Decree No. 763 of 23 May 1996 "On the Order of Publishing and Coming Into Force of the Acts of the President of the Russian Federation, the Government of the Russian Federation and of the Normative Legal Acts of the Federal Executive Bodies", Presidential Decrees and Acts became effective after seven days following the day of their first official publication, unless the relevant decree or act included a date. He also explained that Federal Laws were published in the Official Gazette, "Rossiiskaya Gazeta". In addition, most of these normative legal acts were available on the respective websites of the regulatory bodies or of the Government of the Russian Federation (www.gov.ru). Competent authorities, responsible for regulation of key service sectors, had the following websites: www.minfin.ru (Ministry of Finance of the Russian Federation), www.cbr.ru (Central Bank of Russia), www.fcsm.ru (Federal Service on Financial Markets), www.minsvyaz.ru (Ministry of Communications of the Russian Federation), www.mintrans.ru (Ministry of Transport of the Russian Federation), www.minprom.gov.ru (the MIT).



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