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2. Standards concerning availability, scope and use of intellectual property rights
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- Participation in international treaties
  1. The representative of the Russian Federation further noted that his country had been a Member of the World Intellectual Property Organization (WIPO) since 1970 and was a party to most international treaties on protection of intellectual property. He confirmed that the Russian Federation was a party to, inter alia, the Paris Convention for the Protection of Industrial Property (Stockholm Act of 14 July 1967) (the "Paris Convention"); the Berne Convention for the Protection of Literary and Artistic Works (the "Berne Convention"); the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (the "Rome Convention); the Madrid Agreement Concerning the International Registration of Marks (Stockholm Act); the Patent Cooperation Treaty (PCT); and the Singapore Trademark Law Treaty (2006). The representative of the Russian Federation stated that the Russian Federation had acceded to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) in February 2009, even though Article 1 of the WTO TRIPS Agreement did not require WTO Members to join these treaties. He further noted that when the Russian Federation became a party to the Berne Convention, it did so with a reservation on the application of Article 18 of the Convention. Further, when the Russian Federation became a party to the Rome Convention on 26 May 2003, it did so with the following reservations: non-application of the phonogram criteria (in accordance with paragraph 1(b) of Article 5 of the Convention); protection of broadcasting in accordance with paragraph 2 of Article 6 of the Convention; and non-application and limitation of protection under Article 12 of the Convention with regard to phonograms. A more complete list of treaties to which the Russian Federation was a party was provided in documents WT/ACC/RUS/29 of 13 November 1998, WT/ACC/RUS/29/Rev.1 and WT/ACC/RUS/41 of 26 October 2000, and WT/ACC/RUS/64 of 3 October 2011.
  2. He added that despite the fact that the Russian Federation>
  3. The representative of the Russian Federation confirmed that the Russian Federation would lift its reservation to the Berne Convention by the time of its accession to the WTO. The Working Party took note of this commitment.
  4. The representative of the Russian Federation stated that fees and charges for the patenting of inventions, utility models and industrial designs, the registration of trademarks, service marks, and designation of place of origin, the granting of rights to use designations of origin, and the official registration of computer programmes, databases, and layout designs of integrated circuits were collected in accordance with Council of Ministers/Government Regulation No. 793 of 12 August 1993, (as last amended on 26 January 2007). Legal entities and individuals of the Russian Federation and of countries that were party to international Agreements on mutual payments in rubles (RUB) with the Russian Federation, paid duties and fees in Russian ruble. Legal entities and individuals of other countries paid duties and registration fees in US dollars.
  5. Responding to the question of a Member of the Working Party, the representative of the Russian Federation informed Members of the Working Party that there were differences between fees applying to individuals permanently residing in the Russian Federation and Russian legal entities and fees applying to individuals permanently residing outside the Russian Federation and foreign legal entities. He confirmed that from the date of the accession of the Russian Federation to the WTO, the provisions of Article 3 of the WTO TRIPS Agreement would be implemented without recourse to a transition period and in full scope. Therefore, the above-mentioned difference in fees would be eliminated. The Working Party took note of this commitment.

2. Standards concerning availability, scope and use of intellectual property rights

- Copyright and Related Rights
  1. The representative of the Russian Federation said that copyright and related rights were protected under the provisions of chapters 69, 70 and 71 of the Civil Code. Chapter 70 "Copyright" was based on traditional principles and provisions, referring to such general terms of copyright as objects, subjects, their authorities and warrants, terms of validity of the rights of the author, etc. The Chapter included provisions on software and databases that earlier, being the objects of copyright, were dealt with under the Law of the Russian Federation No. 3523-1 of 23 September 1992 "On the Protection of Computer Programs and Databases".
  2. He further informed Members of the Working Party that, in his view, the provisions of Chapter 70 were in compliance with the WCT. He noted that the Civil Code addressed several issues of particular concern to Members and right-holders, e.g., that making a copy of a recording of a computer program to PC-memory was considered as the use of the work; the possibility of application of technical means of protection of copyright; bringing to the public knowledge (making available) was considered to be an exclusive right, and considered trends in international legal regulation in this field. A number of provisions strengthened the protection of rights of authors and their heirs. The provisions of the Chapter determined and regulated personal non-property and property rights of authors and other right-holders, and also means of disposal of the above-mentioned rights in details. Furthermore, the provisions of the Chapter established different measures that could apply while litigation was ongoing (for example, prohibition of performance of particular activities, seizure of copies of a work, equipment and materials).
  3. Some Members expressed concerns regarding the provision in Article 1299, which also applied to Article 1309 relating to "Technical Protection Measures." In their view, these measures needed refinement to eliminate the possibility that commercial services would develop to assist individuals with circumvention; and to provide certainty and clarity to the consumer electronics, telecommunications, and computer industries that these provisions would not unnecessarily affect the products these industries sell. Members noted that paragraph 3 of Article 1299 referred to the remedies in paragraph 1301 and requested information on whether injunctive/preventive remedies were available to address violations of paragraph 2 of Article 1299.
  4. In response, the representative of the Russian Federation explained that the reference to Article 1301 in Article 1299 was necessary to provide a right to compensation to the author or other right-holder for violations of the provisions of paragraph 2 as engaging in the activities specified in paragraph 2>
  5. As regards the concerns of some Members of the Working Party that the provisions of Articles 1299/1309 of the Civil Code relating to technical protection measures and rights management information would not provide the level of protection that the WCT and WPPT required, the representative of the Russian Federation informed Members of the Working Party that Article 1299.1 of the Civil Code defined the term "technical means of protection of copyrights" as any technology, technical devices or their components controlling access to work, preventing, or limiting the conduct of activities, including reproduction, that were not permitted by the author or other right-holder with respect to the work. The actions that were prohibited with respect to works were listed in point 2 of the same Article. These actions included, in particular, those that were directed at eliminating the limitations on use of the work, which were established by application of technical means of protection of copyrights, and also the preparation, distribution, renting out, providing for temporary uncompensated use, import, advertising of any technical device or its components, and use of such "technical means of protection" for the purpose of obtaining a profit, or providing corresponding services, if as a result of such actions the use of the "technical means of protection" becomes impossible or these technical means cannot ensure proper protection of the aforesaid rights. Thus, "technical means" under Article 1299.1 of the Civil Code meant "any" technologies, and the ban on "distribution" of those means in point 2 of same Article covered "any" cases of granting of access to the "technical means", including such access as a result of sale and purchase. The inclusion of the provisions on the technical protection measures into the Civil Code, in his view, quite corresponded with the general requirements of Article 11 of the WCT and Article 18 of the WPPT.
  6. He further explained that there were no exceptions from Article 1299.2 of the Civil Code and certainly it did not "cut into protection of the technology". In response to the concerns about the scope of Article 1299.2 (2), the representative of the Russian Federation confirmed that, as of the date of the accession of the Russian Federation to the WTO, the Russian Federation would ensure that this provision would be interpreted and applied in a reasonable manner in respect of technical means that were directed to circumvent technical protection measures based on criteria such as whether the device or service was promoted, advertised or marketed for the purpose of circumvention, whether the device or service had a purpose or use that was of limited commercial significance other than to circumvent technical means of protection, and whether the device or service was primarily designed, produced, adapted or performed for the purpose of permitting or facilitating circumvention of technical protection. The Working Party took note of this commitment.
  7. Members continued to have concerns regarding the provisions of the Civil Code on technical protection measures. The language in paragraph 3 of Article 1299, for example, would preclude a remedy against a commercial service that provided assistance and means to circumvent a technological protection measure. In these Members' view, violations of Article 1299 were separate from infringement of exclusive right in copyright or related rights and a right-holder needed to be able to seek a remedy against an individual or commercial service for circumvention of technical protection measures even if no copyright was infringed.
  8. The representative of the Russian Federation confirmed that the exception provided in paragraph 3 of Article 1299 had been eliminated and no other exception had been provided.
  9. Recalling the statements of the Russian Federation regarding limitations on exclusive rights in copyright and related rights, some Members questioned whether several of the specific limitations
    set-out in Chapters 70 and 71 exceeded those permitted under the WTO TRIPS Agreement and Berne Convention. In particular, Article 1273 created a general exception that allowed reproduction by "citizens exclusively for personal purposes of a work lawfully made public … without the consent of the author or other right-holder … and without compensation". Article 1306 features a similar provision making this and other "free use" copyright exceptions applicable in the context of related rights. While Article 1273 specified six categories of works that were not subject to this generalized exception, the exception was otherwise applicable to any work "lawfully made public," and therefore>
  10. Responding to the concerns of these Members of the Working Party on the term "personal needs" in Article 1273 of the Civil Code, the representative of the Russian Federation informed Members of the Working Party that this term covered the use which>
  11. Members continued to express concerns regarding this limitation on exclusive rights in copyright and neighbouring rights. Actions such as posting a cinematographic work on the internet, without requiring payment to use the work, would cause considerable prejudice to the legitimate interests of the right-holder. Members requested further clarification of what was considered to be used for "personal needs" and assurances regarding the availability of compensation for these reproductions.
  12. In response to Members' concerns and questions, the representative of the Russian Federation explained that Article 1273 covered reproduction of a work only by a natural person and not by any form of juridical person. There could be no distribution for payment. The work must have been made public lawfully prior to the reproduction. He confirmed that Article 1273 had been amended to clarify that any copy must be necessary and exclusively for the personal (private) use of the copier and that the necessity requirement would be applied in a manner that would not undermine this limitation. The copy or reproduction could not be used in connection with entrepreneurial or commercial activities or circulated beyond the immediate use of the individual making the copy. Finally, he confirmed that Article 1273 had been amended to refer to Article 1245 of the Civil Code as applicable in cases of free reproduction under Article 1273.
  13. Continuing his description of the Civil Code, the representative of the Russian Federation explained that Chapter 71 "Related rights" consisted of provisions dealing with the protection of the rights of performers, directors of plays, and conductors on the results of performances; the rights of producers of phonograms and video recordings; and also the rights of on-air and cable broadcasting organizations in their programmes. In his view, the provisions of the Civil Code relating to these three separate categories of exclusive rights was based on and fully complied with provisions of the Rome Convention and the WPPT (1996). In addition, for the first time Russian legislation prescribed protection of the exclusive right of a database producer in the contents of such databases. Although the provisions in the Civil Code in this field were based on international norms for the legal protection of databases, these rights were treated as a related right under the Civil Code.
  14. The representative of the Russian Federation also stressed that the Civil Code, for the first time in the Russian Federation, provided an exclusive right for a publisher under the category of related rights. The Civil Code provided a right to the person, who had first made public a work of literature, science or arts, which met the requirements provided in the Civil Code regarding objects of copyright, but which had not been published within the period of validity of copyright and thus was in the public domain. These provisions were based on the norms of the WTO TRIPS Agreement, Berne Convention, and Rome Convention. In his view, the provisions of the Russian legislation on copyright (including those relating to the protection of computer programs and databases) were in conformity with the provisions of the WCT, the WPPT, the Berne Convention (including Article 6bis), and the relevant provisions of the WTO Agreement on TRIPS.
  15. The representative of the Russian Federation informed Members of the Working Party that, in particular, the Russian legislation protected not only personal non-proprietary rights of authors, such as authorship rights, right to name, publication right, right to protect the reputation of the author, but also property rights of authors which could be inherited. In accordance with Article 1281 of the Civil Code, copyright protection was provided for a work from the date it was created. In general, copyrights were valid during the life of the author and for 70 years after his/her death. In certain cases stipulated by the law, the term of protection was calculated on the basis of other dates (for instance from the date of latest death of a co-author where a work had been created by joint authors). The related rights of performers were protected for 50 years from the date of first performance; in the case of phonograms producers, protection was provided for 50 years from the date of first publication or, should the phonogram not have been made public within 50 years of fixation, protection was provided for 50 years from fixation; rights of television and radio broadcasting organizations remained valid for 50 years from the date of first broadcast, and the rights of cable television organizations remained valid for 50 years from the date of first cable transmission.
  16. He added that Article 1256 of the Civil Code had introduced national treatment in respect of protection of copyright and retroactive protection of works. Previously, under Article 28 of the 1993 Law "On Copyright and Related Rights", works which had never been protected on the territory of the Russian Federation were considered as public domain and not subject to protection. Thus, all foreign works published before 23 May 1973 (the date at which the Russian Federation had joined the Universal Copyright Convention of September 1952) were not protected. However, with the adoption of Federal Law No. 72-FZ "On Amending the Law on Copyright and Related Rights" in 2004, this was remedied. In accordance with this law and after 1 January 2008, Article 1256.4 of the Civil Code, the Russian Federation provided protection to pre-existing foreign works in the territory of the Russian Federation, according to international treaties of the Russian Federation. Such protection was provided for works that had not fallen into the public domain in the country of origin due to the expiration of the term of protection established in that country, and that were not in the public domain in the Russian Federation in consequence of expiration of the term of protection established in Federal Law No. 72-FZ "On Amending the Law on Copyright and Related Rights". Right-holders in such works would be accorded all rights in the field of copyright and related rights as provided for in Article 1256. 4 of the Civil Code.
  17. Some Members of the Working Party expressed further concerns regarding the treatment of temporary copies in a number of Articles in the Civil Code (Articles 1270, 1317, 1324 and 1330). These articles did not adequately provide that temporary reproductions of works fall within the exclusive right of reproduction of the copyright owner. Article 9(1) of the Berne Convention provides that the exclusive right of reproduction extends to reproduction "in any manner or form." The "Agreed statements" on Article 1(4) of the WCT and Article 7 of the WPPT provide that the reproduction right "fully applies in the digital environment." In these Members' view, providing that temporary reproductions were within the reproduction right was an important aspect of copyright in the digital environment, as the ways in which copyrighted works were being exploited and enjoyed now more often than ever involve temporary reproductions.
  18. The representative of the Russian Federation responded that the term "reproduction">
  19. He further explained that the concept of reproduction was specified in sub-item 1 of Article 1270.2 of the Civil Code in such a way that along with the record of a product in a computer memory, product recorded on any electronic carrier was also considered as a reproduction. At the same time, during the modern technology process, temporary copies of products could be created. In his view, this situation should be excluded from the list of the cases requiring receiving of the sanction from the right-holder. The same solution was made concerning the temporary copies arising during reproduction (Article 1275.2 of the Civil Code). He considered that it was just one of those "special cases" which were stipulated in Article 9.2 of the Berne Convention. Factually, in this case, one had not made a full scale reproduction of a protected product, but had taken only one of technologically necessary stages of such reproduction.
  20. Members continued to express concerns regarding the protection of temporary copies under the Civil Code. In their view, the Civil Code needed to clearly state that the reproduction right includes the "direct or indirect" preparation of "temporary or permanent" copies. If a limitation or exception to this right was deemed necessary, it should be set-out as a limitation in specific articles of the Civil Code.
  21. In response, the Representative of the Russian Federation explained that sub-paragraph 1 of Article 1270.2 of the Civil Code reflected the directive of the European Union. He explained that the last clause of this sub-paragraph was a limited exception to the exclusive right to use a work as stipulated in the other provisions of Article 1270.2. Of key importance was the requirement that the temporary copy must be for the sole purpose of lawful use or lawfully making the work available to the public. The exception involved technological processes and not economic use of the work or copy. Thus, the temporary copy could not have independent economic value.