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Trade related intellectual property regime (trips)
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TRADE RELATED INTELLECTUAL PROPERTY REGIME (TRIPS)

1. General
  1. The representative of the Russian Federation stated that the legislation of the Russian Federation included civil, administrative, and criminal measures for the protection and enforcement of intellectual property rights. The framework for civil protection of intellectual property, during the period from 1992 through 2007, was set-out in the Constitution of the Russian Federation, the Civil Code, as last amended on 4 October 2010, the Patent Law, the Law of the Russian Federation "On Trademarks, Service Marks, and Appellations of Origin of Goods", the Law of the Russian Federation "On Copyright and Related Rights", the Law of the Russian Federation "On Legal Protection of Layout Designs of Integrated Circuits", the Federal Law "On Protection of Competition", the Law of the Russian Federation "On Attainments in Selection", and the Federal Law "On Commercial Secrets". The legal framework for civil protection of intellectual property rights beginning on 1 January 2008 was the Constitution of the Russian Federation and the Civil Code (Part IV). Other laws listed in Table 34 set-out certain enforcement measures for intellectual property rights and these laws continued to apply after 1 January 2008. Subordinate measures, such as regulations and decrees, and other laws, such as the Federal Law "On Joint-Stock Companies", the Federal Law "On Limited Liability Companies", the Law of the Russian Federation "On Protection of Consumers' Rights", the Law of the Russian Federation "On Space Activity", the Law of the Russian Federation "On Mass-Media", Federal Law "On Architectural Activity", and other "sectoral" laws dealt with certain aspects of the protection of intellectual property, but relevant provisions of these laws and other measures were required to be in conformity with the Constitution and Part IV of the Civil Code.
  2. The representative of the Russian Federation also explained to Members of the Working Party that the Constitution of the Russian Federation established basic rights in the field of intellectual property in the Russian Federation. Article 44, paragraph 1 of the Constitution, guaranteed freedom of literary, artistic, scientific, technical, and other types of creative and educational activity, and provided for legal protection of these activities. He further informed Members of the Working Party that adoption of Part IV of the Civil Code permitted the Russian Federation to finalise codification of its civil legislation with the objectives of:
      • harmonizing norms on intellectual property with the general provisions of civil legislation;
      • achieving full conformity of domestic legislation with the international obligations of the Russian Federation;
      • amending the intellectual property laws of the Russian Federation, to keep the most effective provisions of currently applied laws, while strengthening protection where appropriate; and
      • strengthening available civil remedies to combat counterfeiting, piracy and the making available of pirated material over the internet, through, inter alia, introduction of the concept of "gross violations", which stipulated that liquidation of the legal entity that committed such violations, was an available remedy.
  1. The representative of the Russian Federation noted that the Civil Code included essential provisions on enforcement of intellectual property rights, in particular, remedies that were available in civil actions. These remedies were of two different types. Some remedies, such as temporary and permanent injunctive relief from infringement of rights or threat of such infringement, were applied based on the good, irrespective of a finding of infringement. Other remedies (compensation of losses, payment of damages, etc.) could be applied only based on a finding that an infringer was guilty. The defendant, however, had the burden of proving the absence of guilt. Furthermore, the Civil Code contained provisions on seizure of counterfeit and pirated material and provided for its destruction based on a decision of the court. In addition, according to the Civil Code, the equipment, other devices and materials used or designated for engaging in infringement were to be destroyed at the expense of the infringer. For "gross violations", the Civil Code provided a severe remedy, liquidation of the infringing legal entity and withdrawal of registration of infringing individual entrepreneurs. These civil enforcement measures also applied to relevant provisions of such laws as the Federal Law "On Commercial Secrets", Law of the Russian Federation "On Space Activity", the Federal Law "On Architectural Activity", the Federal Law "On Joint-Stock Companies" and the Federal Law "On Limited Liability Companies." He explained further, that the Civil Code entered into force as from 1 January 2008, replacing, inter alia, the following laws: the Patent Law, the Law of the Russian Federation "On Trademarks, Service Marks, and Appellations of Origin of Goods", the Law of the Russian Federation "On Copyright and Related Rights", the Law "On the Legal Protection of Computer Programmes and Data Bases", the Law of the Russian Federation "On Legal Protection of Layout Designs of Integrated Circuits", and the Law of the Russian Federation "On Attainments in Selection". Federal Law No. 231-FZ of 18 December 2006 "On Putting the Fourth Part of the Civil Code of the Russian Federation into Effect", as amended on 24 July 2007, also amended the First and Second Parts of the Civil Code of the Russian Federation, the Federal Law "On Commercial Secrets", the Law of the Russian Federation "On Space Activity", the Federal Law "On Architectural Activity", the Federal Law "On Joint-Stock Companies", the Federal Law "On Limited Liability Companies, as well as related provisions of other laws. These laws, as amended by the Law "On Putting the Fourth Part of the Civil Code of the Russian Federation into Effect", entered into force on 1 January 2008.
  2. The representative of the Russian Federation stated that Part IV of the Civil Code implemented the most important international Agreements on protection of intellectual property (TRIPS, the Berne Convention (1971), Paris Convention, etc.).
  3. He further noted that Chapter 69 "General provisions" of Part IV of the Civil Code contained the list of "protectable" results of intellectual activity and equivalent means of individualization of legal persons, goods, works, services, and enterprises. These results of intellectual activity and means of individualization, as particular intangible objects of protection by law, were unified in the Civil Code under the definition of "intellectual property". The rights, arising in connection with intellectual property, were named in the Civil Code, as "intellectual property rights" and included personal non-property rights belonging to the authors of creative achievements (e.g., droit de suite, etc.) as well as exclusive rights, which were property rights, and, therefore, an object of civil turnover, as well as a range of other rights, which could ultimately be related neither to the content of an exclusive right nor to personal non-property rights (for example, the right of following in the copyright).
  4. The representative of the Russian Federation informed Members of the Working Party that an exclusive right was treated in the Civil Code as the right of its holder to use the result of intellectual activity or the means of individualization at his own discretion in any way that did not contradict the law. The Civil Code also provided that the holder of the exclusive right could dispose of it at his own discretion, if the Civil Code did not provide otherwise, inter alia, in accordance with a contract to alienate this right to another person or to provide another person with the right to exploit the respective result of intellectual activity or respective mean of individualization in established forms (i.e., on the basis of a licence). Any of the limitations on exclusive rights could be imposed only if the limitation did not inflict unjustified harm to the ordinary use of results of intellectual activity, or means of individualization and did not impair in an unjustified manner the legitimate rights of the right holder. Several Articles, including Article 1241, referred to general provisions on alienation of exclusive rights through contract and contracts on licensing, and also to cases of lapse of an exclusive right to other persons without contractual relationships.
  5. Some Members of the Working Party requested clarification of the scope and content of the term "exclusive rights" as used in Articles 1229, 1231 and other Articles of Part IV of the Civil Code. In particular, Members asked whether this term would include economic rights, such as the rights of remuneration provided for in Articles 11bis and 13 of the Berne Convention, Article 12 of the Rome Convention and Article 15 of the WIPO Treaty on Performances and Phonograms (WPPT), which some Members of the Working Party considered to be distinct from exclusive rights.
  6. The representative of the Russian Federation responded that a right to remuneration, under Russian law, was considered part of an exclusive right and covered by the term "exclusive rights" as used in Articles 1229, 1231, and elsewhere in the Civil Code. In some cases the right of remuneration might be the only part of the exclusive right retained by the right-holder. He explained that the first paragraph of Article 1229.5 of the Civil Code stated that the limitations on exclusive rights were established by the Civil Code "in cases when the use of the results of intellectual activities was permitted without the right-holders' consent, but when they retain their rights to a remuneration shall be established by the present Code". Recognizing the concerns of some Members of the Working Party, the representative of the Russian Federation confirmed that the Russian Federation would ensure that, from the date of accession the term "exclusive rights" as used in Articles 1229, 1231, and other Articles of Part IV of the Civil Code would be interpreted and applied as including the right to remuneration. The Working Party took note of this commitment.
  7. Some Members of the Working Party expressed concerns about the consistency of paragraph 5 of Article 1229 of the Civil Code, as it related to limitations on exclusive rights, with Articles 13, 17, and 30 of the WTO Trade-Related Aspects of Intellectual Property Rights Agreement (hereafter: WTO TRIPS Agreement) and asked for additional clarification of this provision. They noted that the language in paragraph 5 of Article 1229 did not correspond to any of the relevant Articles of the WTO TRIPS Agreement.
  8. The representative of the Russian Federation responded that Article 1229 contained only the general principles for limitation of exclusive rights which cover the whole sphere of intellectual property rights. Thus instead of mentioning "patents", "trademarks", "copyright or related rights" only, the provisions of Article 1229 of the Civil Code covered all the results of intellectual activity and means of individualization, and all objects subject to protection. The specific limitations for copyright, for example, were to be found in Articles 1272 to 1280 of the Civil Code. In his view, those limitations did not conflict with a normal exploitation of the work and did not unreasonably prejudice the legitimate interests of the right-holder. At the same time, from a practical point of view, the Civil Code approach seemed to be more convenient for application, as it contained factual criteria for the estimation of barriers to the common course of use of the results of intellectual activity (or means of individualization). He also noted that Paragraph 3 of Article 1229.5 of the Civil Code stipulated that exceptions must "not impair in an unjustified manner the lawful interests of the right holders". While the interests of third parties were not named directly, the necessity of taking into account the interests of third parties (consumers and others) was based on the general principles of the civil law (Article 1 of the Civil Code).
  9. Some Members of the Working Party continued to have serious concerns about whether the provisions of the Civil Code on limitations on exclusive rights complied with Articles 13, 17, and 30 of the WTO TRIPS Agreement. Moreover, they expressed concerns that some of the specific limitations, such as those set-out in Articles 1270 (excluding temporary reproductions), 1273, and 1306, among others, went beyond the limitations permitted under Article 13 of the WTO TRIPS Agreement. Similar concerns were expressed about the limitations on patent and trademark rights. In these Members' view, judicial and other authorities would be making decisions based on the language in the Civil Code, which did not correspond to the language in the WTO TRIPS Agreement and which had not been previously applied. These Members requested that the Russian Federation bring the limitations to exclusive rights into compliance with the WTO TRIPS Agreement.
  10. Recognizing the continuing concerns of some Members of the Working Party, the representative of the Russian Federation confirmed that Article 1229 paragraph 5 of the Civil Code had been amended to replace the previous language on limitations on rights with separate provisions that reflected the respective elements of Articles 13, 17, and 30 of the WTO TRIPS Agreement and which would relate to the corresponding intellectual property rights.
  11. Some Members of the Working Party expressed concerns about the provisions of Article 1244 of the Civil Code, and requested that collecting societies not grant licenses of any exclusive right without the explicit authorisation of the right-holder.
  12. In response, the representative of the Russian Federation stated that the provisions on regulation of organizations providing management of copyright and related rights on a collective basis (Articles 1242 to 1244), were considered to be a significant improvement over the previous situation. According to the Civil Code, the right to engage in collective management of copyright and related rights without the express consent of the right-holder, was permitted only with respect to certain rights set-out in Article 1244.1 and could be done only through organizations that had obtained State accreditation to perform that activity. Article 1244.3 permitted a government-accredited collecting organization to administer rights and collect compensation for right-holders for the specific right or rights for which the organization had obtained accreditation without concluding a contract with the right-holder. The rights subject to such collective management were significantly fewer than those under Article 45 of the Law "On Copyright and Neighbouring Rights" of 1993, which Articles 1242 to 1244 replaced. Sub-paragraph 1 of Article 1244.2 provided that for each right, subject to collective administration, only one organization could receive accreditation. That organization was determined on the basis of a tender. The requirement for accreditation provided the opportunity for right-holders and the Government to control the activity of such an organization. Article 1244 set-out an exhaustive and closed list of rights that could be subject to collective administration without a contract with a right-holder. In particular, these organizations were not allowed to permit the reproduction and distribution or other use of works over the internet. Moreover, a right-holder who had not signed a contract with an accredited organization for the administration of his rights, had the right to refuse its services at any moment (Article 1244.4 of the Civil Code). While other (non-accredited) organizations could engage in collective management of rights, such an organization could do so only on the basis of a contract concluded pursuant to Article 1242 of the Civil Code. He further stressed that the Civil Code dramatically reduced the number of organizations engaged in collective management of copyright and related rights, and significantly limited the rights subject to collective administration, without the right-holders' consent.
  13. Some Members continued to express concerns regarding the possibility of the collective administration of any rights without the express consent of the right-holder to such management, and requested further amendments to Article 1244. These Members also stressed the need to adopt measures to monitor and hold accountable those organizations engaged in collective management of rights to ensure that right-holders received the remuneration that was due to them.
  14. The representative of the Russian Federation noted in response, that the possibility of non contract administration of rights had been limited to the maximum extent possible in the Civil Code in comparison to the previously applied Russian legislation. He further noted that the sphere of collective administration of rights in the Russian Federation would be reformed steadily through step-by-step limitations of the sphere of non-contractual representation. He confirmed also that the Russian Federation would adopt necessary measures to monitor and hold accountable organizations engaged in collective management of rights to ensure that right-holders received remuneration that was due to them.
  15. Members of the Working Party welcomed the progress made in limiting non-contractual administration of rights in the Civil Code, as well as the confirmation that the Russian Federation would adopt measures to monitor and hold accountable collecting societies so as to ensure that right holders received the remuneration that was due to them. These Members of the Working Party noted that the proposed process of gradually limiting non-contractual administration of rights created difficulties for right-holders.
  16. Recognizing the continuing concerns of Members of the Working Party with regard to management of rights without a contract with the right-holder or his/her representative, the representative of the Russian Federation stated that the Russian Federation would review its system of collective management of rights in order to eliminate non-contractual management of rights within five years after Part IV of the Civil Code entered into effect. The representative of the Russian Federation further confirmed that, in response to the concerns of some Members of the Working Party as regards measures to monitor and hold accountable collecting societies so as to ensure that right-holders received the remuneration that was due to them, the Russian Federation had put into effect regulations necessary to apply such measures and collecting societies would be monitored and held accountable to right-holders according to the regulations of the Russian Federation. The Working Party took note of these commitments.
  17. Some Members continued to have concerns regarding the functioning of the accredited collecting management societies and requested additional information on the review of the system of collective management of the Russian Federation. In response, the representative of the Russian Federation informed these Members that his Government envisaged to conduct the planned review of the system of collecting management of rights in consultation with interested Members with a view to ensure that the system was implemented in full conformity with the WTO obligations of the Russian Federation.
  18. The representative of the Russian Federation informed Members of the Working Party that in addition to the legal framework for protection and enforcement of intellectual property in 2002, the Government had established a Commission for Counteracting Infringements in the Sphere of Intellectual Property, its Legal Protection and Use, to coordinate and guide the joint efforts of Government authorities in the field of intellectual property protection. In 2010, the name of the Commission became the Sub-commission for Technical Regulation and Counteracting Infringement in the Sphere of Intellectual Property, its Legal Protection and Use. The Sub-commission was chaired by the Ministry of Industry and Trade (MIT) and reported to the Committee on Economic Development and Integration. The main objectives of the Sub-commission were to ensure the implementation of a unified Government policy with regard to legal protection and use of intellectual property and counteracting infringements of intellectual property through improvements in enforcement, ensure effective cooperation and coordination of activities of Federal Executive bodies, regional executive bodies, State and other organizations, and increasing international cooperation in this sphere. The Sub-commission also had as its objectives: developing proposals on improving the normative legal base for protection and enforcement of intellectual property rights; forming a positive environment for the development and protection of intellectual property; working out measures to stimulate application of high technologies to production, and ensuring of the exchange of the results of intellectual activity between the military and civil spheres.
  19. The Sub-commission was a permanent body executing the following functions: conducting complex analysis of situations existing in the field of intellectual property in the Russian Federation, working out recommendations on prevention and suppression of the offences in the said field; coordinating the activities of the Federal Executive Authorities, regional executive authorities, State and other entities in the field of counteraction of infringement through improvements in enforcement of intellectual property laws, legal protection and use of intellectual property; examining drafts of Federal laws and other legal acts within the field of competence of the Commission; setting priorities for activities in the field of legal protection and use of the intellectual property; examining and forwarding to the Commission on Economic Development and Integration, suggestions concerning elaboration and implementation measures aimed at resolving issues related to legal protection and use of the intellectual property, particularly suggestions concerning the creation of an economic stimulus system, such as the establishment of Special Economic Zones, to encourage creation of intellectual property, assuring that enterprises in the Russian Federation know the benefits of creating intellectual property and how to commercialise their intellectual property; examining and forwarding to the Government of the Russian Federation and the President of the Russian Federation, suggestions concerning increasing international cooperation of the Russian Federation in the field of counteraction of infringement through improvements in enforcement of intellectual property laws, its legal protection and use, as well as suggestions on participation of the Russian Federation in the appropriate international Agreements; assisting in the control of implementation of Decisions of the President of the Russian Federation and of the Government of the Russian Federation within the jurisdiction of the Sub-commission; determining the measures concerning regulation of the transfer abroad of the results of the intellectual property created at expense of the Federal budget; and, examining suggestions concerning regulation of the procedures of registration of results of the intellectual property created at expense of the Federal budget.