Information intermediary as a subject of information law Ph.D. What is an information broker responsible for? Publications that present the main results

Applicant:	Nurullaev Ruslan Timurovich
Supervisor:	Bogdanovskaya Irina Yurievna ( other work under the supervision)
Committee members:	Tereshchenko Lyudmila Konstantinovna (FSRI "Institute of Legislation and Comparative Law under the Government Russian Federation”, Doctor of Law, Associate Professor, Chairman of the Committee) , Gaetano Dimita (PhD, Queen Mary University of London, member of the committee) , Kalyatin Vitaly Olegovich (OOO Management Company RUSNANO, PhD in Law, member of the committee) , Savelyev Alexander Ivanovich (LLC "IBM Eastern Europe/Asia", Ph.D. in Law, Associate Professor, Member of the Committee), Sergo Anton Gennadievich (FGBOU VO "Russian State Academy of Intellectual Property", Doctor of Law, Professor, Member of the Committee)
The dissertation is accepted for preliminary consideration:	20.09.2018
The thesis was accepted for defense:	8.10.2018
Diss. advice:	Council of Law
Protection date:	29.11.2018

This thesis research proposes an analysis of the status of information intermediaries and examines the law of the United States, the EU and the Russian Federation. The subject of the study is the rights, obligations and responsibilities of information intermediaries in connection with the use of their services by third parties to disseminate illegal information. The essence and content of the concept " information intermediary" and the classification of information intermediaries, the activities of information intermediaries to ensure and restrict access to information, as well as the responsibility of information intermediaries in connection with the use of their services to disseminate illegal information are investigated. As a result of a comparative legal study, the dissertation proposes a new approach to the classification of information intermediaries, measures are proposed to ensure the proportionality of the restriction of access to information by information intermediaries, models are identified legal regulation responsibility of information intermediaries when using their services to disseminate information that violates the right to honor, dignity and business reputation.

Publications that present the main results of the dissertation

Nurullaev R. The Right to Be Forgotten in the European Union and Russia: Comparison and Criticism / NRU Higher School of Economics. Series LAW "Law". 2015. No. WP BRP 54/LAW/2015. ()

Nurullaev R.T. Rationale for the need to regulate copyright on the Internet // Proceedings of the Institute of State and Law of the Russian Academy of Sciences. 2013. No. 5. S. 91-101. ()

Nurullaev R. T. Restriction of access to Internet resources as a new way to counteract copyright infringement // Proceedings of the Institute of State and Law of the Russian Academy of Sciences. 2015. No. 2. S. 171-181. ()

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The concept of "information intermediary" appeared in Russian legislation August 1, 2013 as a result of the entry into force of the so-called "anti-piracy law". The law caused discussions in society, the practice of its application began to take shape instantly.

Who is an information intermediary?

The law says this: "a person who transmits material in an information and telecommunications network, including on the Internet, a person who provides the opportunity to post material or information necessary to obtain it using an information and telecommunications network, a person who provides access to material in this networks".

Cumbersome? We simplify. So, an information intermediary is one who:

• transmits information;
• provides an opportunity to post materials;
• provides an opportunity to post information to receive materials;
• provides access to the material.

All this, of course, takes place on the Internet. Of course, there are other information and telecommunication networks, but we are interested in the Internet.

If “person” is written, this means that both a citizen and a citizen can be an information intermediary. entity. It's obvious, but just in case.

Particularity of the responsibility of the information intermediary

Roughly speaking, the information intermediary is liable for copyright infringement in the same way as the direct infringer - the one who posted someone else's material on the Internet. But on one condition: there must be guilt in his actions (in the form of intent or negligence). What does it mean? To explain, let's make a small digression.

In civil law relations, a citizen is individual Or no commercial organization- are liable only if there is fault. If the violation is fixed for a commercial organization, then it does not matter whether the fault is contained in its actions or not. Responsibility comes regardless.

So, if a commercial organization posts content in violation of copyright, it will be liable regardless of whether there is a fault in its actions, or it happened by accident. But, if an information intermediary contributed to the placement of the content, he will only be responsible if he is directly to blame for this.

How to protect yourself?

If an information intermediary transmitted illegal content, he will not be liable for this, provided that he:

• is not an initiator and does not specify a recipient;
• does not change the content (except for changes within technological process transfers);
• did not know and should not have known about the illegality of the content.

If the information intermediary itself did not transmit, but only provided the opportunity to post content, it will not respond under the following conditions:

• did not know and should not have known about the illegality of the content;
• in case of receiving a letter from the copyright holder, he immediately took measures to stop the violation of the rights of the copyright holder.

If the information intermediary is to blame

As already mentioned, in such cases, he will respond in the same way as the main copyright infringer. The options are as follows (selected by the copyright holder):

1. Recovery of damages. The amount is not limited, but the copyright holder must prove the amount of damages caused. In practice, this is not easy.
2. Payment of compensation. The dimensions are as follows:

• from 10 000 rub. up to 5 million rubles at the discretion of the court and based on the nature of the violation;
• in double the cost of counterfeit copies of the work;
• at twice the cost of the right to use the work, determined on the basis of the price that, under comparable circumstances, is usually charged for the legitimate use of the work.

What other measures can be taken?

Regardless of whether the information intermediary is guilty of copyright infringement or not, in any case, claims can be made against him that are not related to the application of liability. For example, delete information, recognize the right of the author, restrict access to information, publish a court decision, etc.

What's in practice?

Within the framework of this topic, it is interesting to highlight two cases that have reached the Court for Intellectual Property Rights.

The first case (No. A40-150413/2014) is related to the claim of the Komsomolskaya Pravda Publishing House against the Creative Media company. The latter posted on its website a photograph and fifteen literary works, the rights to which belong to the Komsomolskaya Pravda publishing house.

The company "Creativ-Media" built its defense on the fact that it is only the site administrator and in accordance with Art. 1253.1 of the Civil Code of the Russian Federation acts as an information intermediary. During the proceedings, it turned out that the site was registered with Roskomnadzor as an electronic periodical and is a mass media outlet. Being the founder of the media, the company "Creative-Media" is obliged to respect the rights to intellectual property. As a result, the court found the Creative-Media company guilty of copyright infringement and decided to recover the entire amount of compensation.

Conclusion: an Internet site registered as a mass media cannot be recognized as an information intermediary.

The second case (No. A40-66554/2014) was considered on the lawsuit filed by Video-Content against Ello-Networks and YouTube to pay compensation for the illegal placement of several songs on video hosting, the rights to which belong to the plaintiff.

However, in the course of the proceedings, the plaintiff failed to prove the fact that the songs were placed by the Ello Networks company, so the court had no difficulty in rejecting this part of the claim.

With respect to YouTube's liability, it was determined that the defendant blocked access to the content as soon as it received notice from the copyright holder. Considering also the fact that YouTube meets all the signs of an information intermediary that the law contains, the plaintiff's claims in this part were also rejected.

Interestingly, the plaintiff in the course of the dispute put forward the following argument: the blocking of audiovisual works is temporary and nothing prevents YouTube from unblocking access in the future, so he does not believe that his rights are properly protected. The court indicated that this argument was speculative and reassured the plaintiff that now YouTube knows about the copyright holder of the content, and unblocking will bring new claims against him.

Conclusion: if a commercial organization meets the characteristics of an information intermediary, there is no fault in its actions. If, upon receiving a letter from the copyright holder about copyright infringement, employees block the content, the company does not face liability for copyright infringement.

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Solution

Civil Code of the Russian Federation
Article 1253.1. Features of the responsibility of the information intermediary

1. A person who transmits material on an information and telecommunications network, including on the Internet, a person who provides the opportunity to post material or information necessary to receive it using an information and telecommunications network, a person who provides access to material on this network , - information intermediary - is responsible for the violation of intellectual property rights in the information and telecommunication network on the general grounds provided for by this Code, if there is fault, taking into account the specifics established by paragraphs 2 and 3 of this article.
2. The information intermediary that transmits material in the information and telecommunications network is not responsible for the violation of intellectual rights that occurred as a result of this transfer, while meeting the following conditions:

1) he is not the initiator of this transfer and does not determine the recipient of the specified material;
2) he does not change the specified material during the provision of communication services, with the exception of changes carried out to ensure the technological process of transferring the material;
3) he did not know and should not have known that the use of the corresponding result of intellectual activity or means of individualization by the person who initiated the transfer of material containing the corresponding result of intellectual activity or means of individualization is unlawful.

1. The information intermediary that provides the opportunity to place material in the information and telecommunication network is not responsible for the violation of intellectual rights that occurred as a result of the placement of material in the information and telecommunication network by a third party or at his direction, while the information intermediary complies with the following conditions:

1) he did not know and should not have known that the use of the corresponding result of intellectual activity or means of individualization contained in such material is unlawful;
2) he in case of receipt in writing statements of the copyright holder about the infringement of intellectual rights, indicating the page of the site and (or) the network address on the Internet, on which such material is posted, took the necessary and sufficient measures in a timely manner to stop the infringement of intellectual rights. The list of necessary and sufficient measures and the procedure for their implementation may be established by law.

1. An information intermediary who, in accordance with this article, is not responsible for the violation of intellectual property rights, may be subject to claims for the protection of intellectual property rights (paragraph 1 of Article 1250, paragraph 1 of Article 1251, paragraph 1 of Article 1252 of this Code), not related to the application of measures civil liability, including the removal of information that violates exclusive rights, or the restriction of access to it.
2. The rules of this article apply to persons who provide access to the material or information necessary to obtain it using the information and telecommunications network.

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Article 1253.1. Features of the responsibility of the information intermediary

1. A person who transmits material in an information and telecommunications network, including on the Internet, a person who provides the opportunity to post material or information necessary to obtain it using an information and telecommunications network, a person who provides access to material in this network, - the information intermediary - is liable for the violation of intellectual property rights in the information and telecommunication network on the general grounds provided for by this Code, if there is fault, taking into account the specifics established by paragraphs 2 and this article.

2. An information intermediary that transmits material in an information and telecommunications network shall not be liable for the violation of intellectual rights that occurred as a result of this transfer, while meeting the following conditions:

1) he is not the initiator of this transfer and does not determine the recipient of the specified material;

2) he does not change the specified material during the provision of communication services, with the exception of changes carried out to ensure the technological process of transferring the material;

3) he did not know and should not have known that the use of the corresponding result of intellectual activity or means of individualization by the person who initiated the transfer of material containing the corresponding result of intellectual activity or means of individualization is unlawful.

3. The information intermediary that provides the opportunity to post material in the information and telecommunication network shall not be liable for the infringement of intellectual rights resulting from the placement of material in the information and telecommunication network by a third party or at his direction, while the information intermediary complies with the following conditions:

1) he did not know and should not have known that the use of the corresponding result of intellectual activity or means of individualization contained in such material is unlawful;

2) if he receives a written statement from the copyright holder about the infringement of intellectual rights indicating the page of the site and (or) the network address on the Internet on which such material is posted, he promptly took the necessary and sufficient measures to stop the infringement of intellectual rights. The list of necessary and sufficient measures and the procedure for their implementation may be established by law.

4. An information intermediary who, in accordance with this article, is not responsible for the violation of intellectual property rights, may be subject to claims for the protection of intellectual rights (paragraph 1 of Article 1250, paragraph 1 of Article 1251, paragraph 1 of Article 1252 of this Code), not related to the application of measures of civil liability, including the removal of information that violates exclusive rights, or the restriction of access to it.

5. The rules of this article apply to persons who provide access to the material or information necessary to obtain it using the information and telecommunications network.

Civil Code of the Russian Federation:

Article 1253.1 of the Civil Code of the Russian Federation. Features of the responsibility of the information intermediary

1. A person who transmits material in an information and telecommunications network, including on the Internet, a person who provides the opportunity to post material or information necessary to obtain it using an information and telecommunications network, a person who provides access to material in this network, - the information intermediary - is liable for the violation of intellectual property rights in the information and telecommunications network on the general grounds provided for by this Code, if there is fault, taking into account the specifics established by paragraphs 2 and 3 of this article.

2. An information intermediary that transmits material in an information and telecommunications network shall not be liable for the violation of intellectual rights that occurred as a result of this transfer, while meeting the following conditions:

1) he is not the initiator of this transfer and does not determine the recipient of the specified material;

2) he does not change the specified material during the provision of communication services, with the exception of changes carried out to ensure the technological process of transferring the material;

3) he did not know and should not have known that the use of the corresponding result of intellectual activity or means of individualization by the person who initiated the transfer of material containing the corresponding result of intellectual activity or means of individualization is unlawful.

3. The information intermediary that provides the opportunity to post material in the information and telecommunication network shall not be liable for the infringement of intellectual rights resulting from the placement of material in the information and telecommunication network by a third party or at his direction, while the information intermediary complies with the following conditions:

1) he did not know and should not have known that the use of the corresponding result of intellectual activity or means of individualization contained in such material is unlawful;

2) if he receives a written statement from the copyright holder about the infringement of intellectual rights indicating the page of the site and (or) the network address on the Internet on which such material is posted, he promptly took the necessary and sufficient measures to stop the infringement of intellectual rights. The list of necessary and sufficient measures and the procedure for their implementation may be established by law.

4. An information intermediary who, in accordance with this article, is not responsible for the violation of intellectual property rights, may be subject to claims for the protection of intellectual rights (paragraph 1 of Article 1250, paragraph 1 of Article 1251, paragraph 1 of Article 1252 of this Code), not related to the application of measures of civil liability, including the removal of information that violates exclusive rights, or the restriction of access to it.

5. The rules of this article apply to persons who provide access to the material or information necessary to obtain it using the information and telecommunications network.

Return to document table of contents: Civil Code of the Russian Federation Part 4 in the current edition

Comments on article 1253.1 of the Civil Code of the Russian Federation, judicial practice of application

Is the owner of the site an information intermediary?

The site owner independently determines the procedure for using the site (paragraph 17 of Article 2 federal law dated July 27, 2006 N 149-FZ "On information, information technology and on Information Protection", hereinafter referred to as the Federal Law "On Information, Information Technologies and Information Protection"), therefore, the burden of proving that the material, including the results of intellectual activity or means of individualization, is posted on the site by third parties, and not by the owner of the site and , respectively, the latter is an information intermediary, lies with the site owner.In the absence of such evidence, it is presumed that the site owner is a person directly using the relevant results of intellectual activity or means of individualization.

If the site owner makes changes to the material posted by third parties on the site that contains the results of intellectual activity or means of individualization, the resolution of the issue of classifying him as an information intermediary depends on how active he played in the formation of the posted material and (or) whether he received income directly from the misplacement of material. Significant processing of the material and (or) receipt of the specified income by the site owner may indicate that he is not an information intermediary, but a person directly using the relevant results of intellectual activity or means of individualization.

Unless otherwise follows from the circumstances of the case and the evidence presented, in particular from the information posted on the site (Part 2 of Article 10 of the Federal Law "On Information, Information Technologies and Information Protection"), it is presumed that the owner of the site is the administrator of the domain name addressing corresponding site.