The work of Stas Mikhailov came to the constitutional court

The work of Stas Mikhailov came to the constitutional court

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COP check, do not violate the norms of the Civil code of human rights to a decent life

Photo: RIA NOVOSTI/Alexey Danichev

The constitutional court will review for compliance with the Basic law of the rules on compensation for copyright infringement and trademark rights. The reason for the appeal to the constitutional court were two of the request of Arbitration court of the Altai territory, who was unable to resolve the dispute between the copyright owner on the work of the singer Stas Mikhailov — the company “Kvadro-publishing” is and entrepreneur, becoming a pirate disk. The arbitration court found in the Civil code articles that may be incompatible with the constitutional principle of the right to a decent life.

On 8 November the constitutional court will check on compliance with the Basic law provisions on minimum compensation for violation of copyright (article 1301 and 1311 and section 4 of article 1515 of the civil code). The corresponding request was sent to the COP, the Arbitration court of the Altai territory, which now parses of litigation between rights holders and small businessmen. In one case the holder of the rights to phonograms and musical works of Stas Mikhailov “Kvadro-publishing” intends to 859 thousand rubles from the individual entrepreneur Julia-Loving. In June 2013 she sold a disc “Stas Mikhailov” for 75 rubles, not having rights. In the second case it is a dispute of the company “Airplane” with a dozen entrepreneurs, who sold the toy, resembling cartoon characters “Fixies” (the company has rights to these trademarks). Aeroplan intends to collect from each violator of the order of 50 thousand rubles.

Now the representative of the small business can get sued for hundreds of thousands and even millions of rubles, when implementing a pirated disk or a toy, copying someone else’s trademark. The amount of compensation for infringement of copyright, related rights and trademark rights in the Russian legislation fixed — from 10 thousand to 5 million rubles for each object of intellectual property.

This leads to the fact that one of the counterfeit disk, the court may charge the offender up to 4 million rubles in favor of the copyright holder. The calculation is as follows: 10 thousand rubles for a single track and one piece of music — in this case, the drive may be about 200. The court has the right to halve the amount only if the violation occurred before October 1, 2014, when entered into force, the amendments to the civil code.

By way of damages, when necessary to prove their size, the right holders are not often, and prefer compensation, which need only prove the violation of their rights.

Priority formalities

As in Altai region have questioned the fairness of the current regulation, the requests of the COP. In his opinion, because of the fixed amount of compensation the court shall not reduce, on the basis of actual consequences of the breach and subject to the requirements of reasonableness. GK gives priority to the counting mechanism of the amount of compensation to which the offender faces a serious responsibility, even if the “victim” of the loss is small. This may contradict article 2 of the Constitution of the Russian Federation, according to which man, his rights and freedoms are the Supreme value, to the queries of the court. They violate the right of everyone to judicial protection of his rights and freedoms (paragraph 1 of article 46 of the Constitution), believes the court of arbitration. Even the right half of the court to reduce the compensation if the violation was after October 1, 2014, does not resolve this contradiction, says the court. “The amount of compensation in this case shall be determined without regard to the actual consequences of the size of property losses of the plaintiff,” reads the request of the court.

The recovery amounts that are disproportionate to the consequences, contrary to the policy of Russia on creation of the conditions providing worthy life and free development of man (part 1 of article 7 of the Constitution). In addition, it is unfavorable for small business, breaks the unity of economic space and free movement of goods, restricts competition and freedom of economic activity (paragraph 1 of article 8 of the Constitution of the Russian Federation), said the court.

No agreement

The head of the international law area of the legal company “Intellectual capital” Marina Nikolaeva considers the question of the unconstitutionality of the standards is moot. Agree with her lawyer Bureau “Business fairway” Sergey Litvinenko, who notes that there are discussion points that need to explore carefully, but the apparent inconsistencies there.

— It is unlikely that the constitutional court recognized the contested norms as unconstitutional, he says.

Nikolaev agrees with the AU of the Altai territory that “we need a mechanism to reduce the compensation that the court could assign and justify the reasonableness and fairness of its size”. But it is important to consider, she drew attention that, in case compensation would be small, imperceptible to the intruder, the whole institution of intellectual property rights can be jeopardized.

— If you give in to temptation and just be allowed to reduce the compensation solely at the discretion of the court, affected the protection of rights to results of intellectual activity and means of individualization, — says, in turn, partner BGP Litigation Alexander Vaneev.

A reasonable approach would be a clear description of the reasons for the decline of compensation, and the use of this mechanism in exceptional cases, he said.