The Center for the Development of Modern Law estimated the level of digitalization of the Russian arbitration system at 7.5 points out of 11 possible. According to this indicator, Russia has reached the level of China, ahead of Australia and Germany. However, the courts of general jurisdiction are noticeably lagging behind arbitration. What is the reason?
As in the rest of the world, the digitalization of justice has been accelerated by COVID. In the online mode, it has become customary to participate in the meeting, get acquainted with cases, file lawsuits. LegalTech products like the Arbiter CAD got used to law even earlier. Screenshots do not require notarization for a long time, the courts are ready to turn to "digital evidence" through Internet resources, applications, video recordings from phones and drones.
Nevertheless, digitalization is stalling just where it can be applied with the greatest efficiency and bring maximum benefit — in cases concerning intellectual property.
In November 2022, the First Court of Appeal of General Jurisdiction raised this issue at its scientific and practical seminar "Protection of copyright and (or) related rights in information and telecommunications networks, including the Internet."
Industrial property and means of individualization require mandatory registration with the relevant state department. Copyright and related rights may be registered in one of the payouts, in a creative union, on a digital platform, or not declared anywhere at all. But, when deciding, for example, on interim measures on the basis of Article 144.1 of the Civil Procedure Code of the Russian Federation, the court is obliged to rely on weighty arguments. How to reduce time and other search costs? In addition, it is increasingly difficult for courts to navigate in a variety of state, public or corporate registers of intellectual property rights. This problem is already hitting the interests of film distributors, labels, producers: if they do not want to lose fees already from the first weekend due to pirated links, they should ask the court to promptly block illegal access to content. An indispensable condition for such appeals is the availability of "documents confirming the fact of the use in information and telecommunications networks, including on the Internet, of objects of exclusive rights and the applicant's rights to these objects." If the necessary documents are not at hand, the claim for blocking will at best be considered not urgently, but in a general manner. And the risk of financial losses is not stopped in time.
Deputy Chairman of the First Court of Appeal of General Jurisdiction Dmitry Lepeshin drew the attention of the audience to the fact that one of the effective ways to protect the rights of copyright holders on the Internet is the suppression of actions that violate their copyright or related rights. For these purposes, the institute of preliminary interim measures provided for in Article 1441 of the Civil Procedure Code of the Russian Federation is indispensable, the advantage of which lies in the promptness of suppressing the facts of violation. Recently, a trend has been revealed towards the growth of this category of cases in the Moscow City Court. Recall that this institution has no analogues in Russian procedural legislation and is at the forefront of judicial protection against illegal placement of copyright and related rights objects in the Internet space. It seems that the established rules of exclusive jurisdiction are focused, first of all, on the prompt suppression of the distribution of "pirated content" and the recovery of compensation for the violations identified.
Based on these tasks, within the framework of the claim proceedings, the circumstances confirming the violation of the copyright and (or) related rights of the applicant are subject to investigation by the court. However, the analysis of judicial practice in this category of cases shows a tendency to decrease the efficiency of their consideration on the merits, since cases arise more often when third parties submit documents as justification for the absence of rights to the disputed object from the plaintiff and declare the existence of rights to the specified object from other persons.
In such situations, the court of first instance is forced to examine documents indicating the emergence, transfer of rights to the disputed object, and in the case of submission by the parties of documents contradicting each other in content (for example, license agreements), to assess which contract has legal force.
The above leads to a delay in the consideration of disputes and a decrease in the effectiveness of the suppression function.
This problem points to the need for a single source of information about the copyright holders of the results of intellectual activity: "Consideration of intellectual property rights disputes is often delayed due to the fact that the parties cannot provide the necessary data, and access to the registers of state organizations, non-profit organizations, companies or societies for collective management of rights is difficult. Meanwhile, there are already infrastructure solutions in the Internet space that make it possible to overcome this problem."
An example of such a solution, which can facilitate the work of courts and increase the guarantee of protection of intellectual property rights, is the public-state blockchain infrastructure of the RCIS.RF. This is a huge distributed database of the results of creative activity and rights to them under the management of a public-state structure (OOGO RCIS). Records of authorship, transfer of rights or disputes are confirmed simultaneously by more than 30 trusted network nodes, including public authorities, collective rights management societies, media holdings, development institutions, major players in the creative economy, and the Intellectual Property Rights Court. Thanks to the use of blockchain, all data is preserved unchanged, which means that the history of an object of intellectual property rights cannot be deleted or falsified.
The network is useful not only to the copyright holder and business, but also to the law enforcement officer. According to Irina Yakovleva, Deputy chairman of the RCIS, the blockchain infrastructure, formerly known as the IPChain project, was originally designed to unite many disparate registries of protected objects belonging to departments and companies: "The lack of full access to information, the inability to use the one-window option to obtain relevant, complete and reliable data on intellectual property objects — all this it hindered the development of the modern intellectual property market in Russia and its digital transformation."
The formation of the infrastructure turned out to be possible due to the absence of legal barriers to the creation of a single "data lake" in Russia and the emergence of blockchain technology, the very philosophy of which implies transparency, trust and economic efficiency. Having arisen on the initiative of the largest market players, by 2021 the infrastructure has acquired a public-state status. Heads of the federal Ministries of Digital Development, Communications and Mass Communications, Culture, higher Education and Science were included in the coordinating council of the OOGO RCIS.
The RCIS network is able to increase the efficiency of all courts dealing with intellectual property cases, Irina Yakovleva is sure: "If the Moscow City Court, the Moscow Regional Court, and the Arbitration Court of Moscow join our infrastructure after the Intellectual Property Court, this will certainly mark a fundamentally new stage of digital transformation of the judicial corps in the metropolitan region, and then, of course, it will serve as a reference point for the judicial system of the whole country, moreover, access to the network is provided free of charge and does not require judges to have special competencies in the field of IT."
Judges will have access to a huge amount of information that can be used both as evidence in the case, and simply as information that helps to make the appropriate decision faster, minimizing the risk of judicial error. "The judge can log into the system right during the trial and recheck the arguments presented by the participants in the proceedings," Irina Yakovleva explained.
In fact, the courts themselves will become participants in the intellectual property market, receiving information from the RCIS network.The Russian Federation and uploading its decisions and resolutions to the network, thereby promptly notifying the market about the status of a particular copyright holder or intellectual property object.
Natalia Polianchik, General Director of IPCodex Law Firm, agrees with the representative of the RCIS. "The courts now, seeing that the statement of claim is about copyright, are increasingly attracting RAO as a third party. They have no other sources of information, and they don't know where to find it," she complained.
The need for a single digital resource about the copyright holder of the results of intellectual activity is more than overdue, agrees Vitaly Kalyatin, Professor of the Department of Intellectual Rights at the S.S. Alekseev Research Center for Private Law under the President of the Russian Federation. But at the same time, he noted that "while judges in this area do not often meet cases and it is difficult for them to gain experience. Judges need to be taught to work in a digital environment."
Eric Valdez-Martinez, Director of the Association of Copyright Holders for the Protection and Management of Copyrights in the Field of Fine Arts, also highly appreciates the prospects for the use of the RCIS by the courts: "In the courts, the question of proving competence often arises. Courts could use the RCIS network.The Russian Federation in establishing the proper persons who declare themselves as copyright holders when there is a dispute about the right. Another plus is that it is a digital system and you can access the data quickly."
The Office itself has long been a node of the RCIS.RF. So Eric Valdez-Martinez, like no one else, understands how much the trial process would be simplified if judges could see all the necessary information about works of fine art and their copyright holders without leaving the computer.
By connecting to the RCIS.The courts of the Russian Federation will also be able to largely fulfill their KPIs on digitalization without attracting additional budget funds, including due to the reduction of transaction costs.
