Legislative initiatives that strengthen the control over information circulation on the Internet rarely leave the public indifferent. Usually, two forces immediately appear, namely, supporters of strict regulation and observance of rights (subjects of personal data and copyright holders) and their opponents who believe that total control and severe measures will not lead to a positive outcome.

Recently, one such battle has come to a closure, about which Elena Berger and Vladislav Scherbatykh, the IP practice lawyers of Capital Legal Services, are telling in the first summer issue of the  Intellectual Environment column. On June 8, Russian President Vladimir Putin signed a draft law allowing Roskomnadzor to restrict access to applications that provide access to copyright-infringing content (https://sozd.duma.gov.ru/bill/386109-7 ).

What are the amendments about? The draft law amends the Federal Law “On information ...” as concerns restricting access to information being disseminated in violation of copyright regulations. Currently, the law establishes a procedure for restricting access to an “information resource” on which such information is disseminated. However, it is unclear whether an application can be classified as an “information resource” or if this term refers only to web sites. According to the explanatory note, the draft law was required to eliminate this ambiguity. Starting from October 1 of this year, when the amendments take effect, the law will directly establish the procedure for restricting access to “software applications” that provide access to copyright-infringing content.

In general, such a procedure will be similar to the current one used for restricting access to web sites with “pirated” content. We will analyze it in the most general terms. First, copyright holders apply to the Moscow City Court for preliminary interim measures. In this application, they need to prove two aspects: their exclusive rights to the work and the fact that the violator used this work. If these facts are established, the court will issue a decision on interim measures, after which copyright holders can file a request with Roskomnadzor for restricting access to the application. Moreover, the rightholder must file a lawsuit against the violator within 15 days from the date of the decision; otherwise, interim measures will be canceled.

Then Roskomnadzor gets to work, and from this moment, it is the start of the procedure which caused the most disputes at the stage of discussion of the draft. Within three business days from the date the copyright holder’s request is received, Roskomnadzor sends a notice to the owner of the web site or other resource that posted the application (for example, AppStore or GooglePlay) to take measures to restrict access to the content that violates the law. Further, the owner of the relevant web site has one business day to request that the application owner restrict access to “pirated” content on their own. Application owners, in their turn, must also comply with such a request within one business day. If they don’t, the web site owner will be obliged to restrict access to the application within three business days from the date it received the first notice from Roskomnadzor (moreover, judging by the language of the draft law, the entire application, rather than its part with the illegal content, is to be blocked). If the web site owner does nothing, the communications provider will restrict access to the application.

The opponents of the draft law were dissatisfied with, first of all, extremely tight deadlines for complying with the request (see https://www.kommersant.ru/doc/4356461). The maximum period provided for the entire procedure is only three business days, and the application owner is obliged to delete completely the disputed content within one day. Moreover, business representatives believed that “punishment” of the application owner for not responding to the request on time, is disproportional, since it blocks access to the entire application, and not just to the illegal content, although in some cases it is technically possible to restrict access only to certain content. Nevertheless, the draft law was after all adopted in the original edition, with a three-day deadline for complying with the request and a complete blocking of applications, which, of course, was an unpleasant surprise for those who sought to liberalize it.

Moreover, the financial risks for application owners might be quite significant. Let’s suppose that someone filed an application for interim measures, an application to Roskomnadzor and a lawsuit against the application owner claiming that their work was illegally placed in the application. If the application owner is unable to eliminate the violation by the deadline (which is quite likely), access to the application will be blocked. Subsequently, the court may establish that there was no violation, for example, there was a lawful citation, and the block will be canceled. However, the case could be in litigation for quite a long time (for example, a year), and all this time access to the application will be blocked. Obviously, for some application owners this can result in major losses, while for others it could even cause them to leave the market.

The situation, of course, is not completely hopeless, because one should keep in mind that the provisions of the Russian Civil Procedural Code (Part 9 Article 144.1 and Article 146) allow the defendant to recover losses caused by interim measures if the plaintiff’s claim was denied. In this case, the affected application owner will apparently be faced with all the problems related to proving the amount of losses and their causal connection with the measures taken; though there will still be a chance to recover losses.

We are unable to assess the impact that the draft law will have on business, and can only hope that it will be used against real violators, rather than as a means of making trouble for competitors.