The COP changed the procedure for recovery of compensation from pirates

On Tuesday, the constitutional court has announced the decision on the complaint of a judge of the arbitration court of the Altai territory, which challenged several articles of the Civil code. In its decision, the high judge noted that the current procedure for determining compensation for copyright infringement (set in CC) does not allow judges to differentiate between punishment and assign payments based on the degree of fault and damages. In addition, it does not meet the principles of fairness and proportionality.

Also, the COP decided to amend the existing legal regulation of this issue.

Pirate law

A request to the court asked judges of the Arbitration court of the Altai territory. They asked to check for compliance with the Basic law three articles of the Civil code (arts 1301, 1311, and 1515 of the civil code), which establish the minimum amount of compensation for infringement of exclusive copyright.

In accordance with the law with a copyright infringer it is necessary to collect not less than 10 thousand rubles for each work that is distributed without a license. The court: it is not possible to reduce the amount of compensation.

In the production of the same as in Altai region there are several cases initiated by the production company “Airplane”. 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”.

The representative of the court — judge Maksim Kulik convinced the judges of the constitutional court that the contested norms protect only the interests of rights holders, but does not take into account the interests of the defendants, their financial situation, and not allow judges to assess the real damages to the copyright holders.

“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.”

A decision on the computer

The authorities in the court divided into two sides. The representative of the President Michael Krotov and the representative of the government Mikhail Barshchevsky took the side of the plaintiffs.
Representatives of the state Duma — the Deputy from party “United Russia” Tatyana Kasaeva and a representative of the Federation Council Piotr Kucherenko — requested to dismiss the complaint and recognize the rule as legitimate.

“Is it justice to demand for [pirated] 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.

In turn, the Deputy Kasaeva claimed that the pirates give relief is impossible. But the abolition of the existing order call judges unreasonably reduce the amount of compensation.

“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 said now the law allows to reduce by 50% the payment of the amount claimed. But this rule became effective from the autumn of 2014, after the Barnaul businessmen have committed violations.

Specific circumstances

In its decision, the CC stated that “the court should be provided the opportunity to reduce the size of the manifestly unjust sanctions below than the legal minimum limit.” But it is for the courts to deal with the peculiarities of specific cases, and to establish important circumstances. Consider, for example, whether the violation committed for the first time and did not result in the violation of copyright substantial harm to the rights holders.

“A different approach to the recovery of compensation undermines trust of citizens to law and justice and leads to violations of constitutionally guaranteed dignity and the prohibition of degrading punishment,” said the COP, and concluded that the current procedure is partly contrary to the Basic law.

“The Federal legislator prescribed immediately to amend current legislation on the relevant changes,” ruled the constitutional court.