On Tuesday, the constitutional court examined the question of how to calculate compensation for copyright infringement. The reason for the proceedings was the statement Arbitration court of the Altai territory, which questioned three articles of the Civil code — 1301, 1311 and 1515 of the civil code.
These contested norms establish the minimum amount of compensation for violation of exclusive rights — from 10 thousand for each work, and does not allow courts to reduce the amount.
In its request, the court indicated that such a procedure makes the injustice in the case. Thus, in the manufacture of as the Altai territory are now several lawsuits from the production company “Airplane” to the Barnaul businessmen.
One of these cases, the plaintiffs asked to collect 900 thousand rubles with businesswoman Yulia Lubenau for selling pirated CDs Stas Mikhailov. The second case concerns the infringement of trademarks, sales of toys from the cartoon “the Fixies”. But because the law sets the minimum amount of compensation, the arbitration Tribunal decided to suspend the litigation and refer the request to the constitutional court.
The Law Of Tsarist Russia
Arrived at the meeting, the COP, the judge of the court of the applicant Maksim Kulik pointed out that compensation should take into account not only the interests of rightholders and defendants — their financial situation. And also to assess the real damage they have caused.
Now the amount of compensation is calculated solely by mathematical — the number of works sold illegally, just multiplied by 10 thousand rubles, said Kulik. Holders do not need to justify the amount of damage that they suffered because of the sale of pirated products, the judge explained.
“Even 100 years ago, the copyright act 1911 in pre-revolutionary Russia provided that the amount of compensation for infringement of copyright shall be calculated in accordance with the loss of the victim “equitable discretion,” — said the cooking.. — We think this wording is better than modern.”
Calculator instead of the court
This case has caused intense debate in court. Recognition contrary to the Basic law three provisions of the civil code except the judge as the Altai territory asked the representative of the President Michael Krotov and the representative of the government Mikhail Barshchevsky.
“Is it fair to charge [the pirate] the drive Stas Mikhailov 400 thousand roubles, — was indignant Barshchevsky. — Yes, and even if it was a [drive] Dmitri Hvorostovsky!” He has come that only the right court to independently establish the amount of compensation can guarantee the fairness of the decisions. “Otherwise it would be possible to bring all data into the computer and immediately get the solution, then why need the court,” said Barshchevsky.
In turn, the moles told me that initially the contested norm was adopted to protect authors from entrepreneurs. But now in arbitration courts are judged not authors: and some entrepreneurs are trying to collect money from other traders, said the representative of the President. However, they do not even prove the amount of actual damages, pointed out the moles.The courts, however, have to accrue a huge amount of compensation in accordance with the contested norm.
“We need to give courts the right to reduce the amount of compensation, otherwise the compensation may turn into penalties,” — said moles.
He noted that the fight against piracy is necessary. But it is possible to think of additional administrative responsibility, to establish penalties that will be levied is not in favor of merchants in the state budget, said the moles.
Payment for 50% discount
In turn, the representatives of the state Duma — the Deputy from the party “United Russia” Tatyana Kasaeva and a representative of the Federation Council Piotr Kucherenko insisted the rules of the civil code adopted in accordance with the law and do not violate the provisions of the Constitution. They were asked to refuse satisfaction of the statement the arbitration court.
Kasaeva argued that the sale of pirated discs may cause significant harm to rightholders. “If you imagine the courts the right to determine the amount of compensation, it can lead to a strong decrease in its size,” — said the representative of the state Duma.
It supported Kurenkov. He pointed out that if the court suspects right holders in bad faith and overstatement of amounts, it may deny the claim. In addition, the law allows to reduce by 50% the payment of the amount claimed, was noted by the representative of the Federation Council. But this rule became effective from the autumn of 2014, after Barnaulka entrepreneurs committed violations and therefore they discount does not apply, said Kucherenko.