RIGHTS PROTECTION ON THE INTERNET – 2017: RISKS AND BENEFITS

Changes appeared in the rights protection on the Internet. It is reported by Upmp.news with the reference to the material of Irina Abdulina, the editor-in-chief of the “Intellectual Property in Ukraine” magazine.

The year of 2017 is over and it have brought us many changes and innovations in the field of Internet rights protection. Among those changes there are: adoption of the Law of Ukraine “On State Support to Cinematography in Ukraine”, which amended the Law of Ukraine “On Copyright and Related Rights”, the introduction of the decision of the National Security and Defense Council on the application of personal special economic and other restrictive measures (sanctions) in accordance with the Decree of the President of Ukraine No. 133/2017 of May 15, 2017, the adoption of three procedural codes in a new edition.

Thus, last April the amendments to the Law of Ukraine “On Copyright and Related Rights” came into force, according to which the procedure for termination of infringements of copyright and (or) related rights with the use of the Internet was fixed. The law specifies who is the owner of a website, whose data must be posted to the WHOIS service in order to be able to file a claim about the fact of misplacing the content in the future.

We asked Alexander Riabchenko, a lawer and an expert in this field, how effective in practice this law:

In practice, the placement of reliable information about the website owner on the websites themselves is more likely to be an exception than a rule, and the rights holders remain unprotected, since it is often not possible to find out to who exactly the claim is supposed to be submitted. It doesn`t make sense to send the claim to email address indicated on the websites because it does not meet the requirements of the Law of Ukraine “On Copyright and Related Rights”. The application for termination of the offence must contain relevant information about the applicant’s possession of the intellectual property rights to the copyright object and / or related rights indicated in the relevant application. This paragraph disregards one of the main principles of copyright, namely: “copyright exists since the creation of the relevant object and its registration is not mandatory” and provides a platform for abuses and manipulations, refusals by website owners, etc. So, according to the lawyer, for more effective fight against illegal content authors will be forced to implement formal procedures for the registration of copyright. Unfortunately, at the moment, the term of such a procedure needed for the Ministry of Economic Development and Trade is very rarely compliant with the norms established. In addition, this procedure requires additional expenses for the payment of administrative fees and services of patent attorneys, lawyers or lawyers. Although a patent attorney and a lawyer can help the author with the registration, he can do it on his own, but according to the procedure currently approved by the law, the applicant applies for termination of the violation solely through the representation (mediation) of the lawyer.

On the one hand, this increases the level of author`s rights protection, and on the other hand, it raises the cost of this procedure and in turn it becomes less accessible to the authors.

According to the new edition of the Commercial Procedural Code of Ukraine (Article 20), the High Court on Intellectual Property considers the cases as a court of first instance in disputes concerning copyright and related rights, including disputes concerning the collective management of these rights. According to Alexander Ryabts, the work of this court will bring both pros and cons. Undoubtedly, the main advantage will be unique jurisprudence and efficiency in solving disputes related to violation of intellectual property rights by highly skilled judges.

However, the disadvantage is that the court is territorially located in the capital, which makes it far and expensive for the citizens to get to it. As of today, cases on intellectual property issues may be considered by economic, district and appellate courts, which is a significant advantage for ordinary citizens. In fact, the transfer of jurisdiction to the High Court on Intellectual Property in Kyiv is an obstacle to access to justice and it will result in rising the cost of litigation.

We can say that this aspect could be solved by means of videoconference. But in practice, in half of the cases the courts refuse to hear the case without the party’s personal participation. Other thing is that in 30% of cases the quality of videoconference is not good enough.

Oleksandr Ryabets notes that until December 15, 2017, information from the Internet and correspondence received by e-mails were judged by the judges rather ambiguously; various practices of courts of different jurisdictions regarding the recognition of electronic evidence as proper and admissible were developed.

However, with the making changes to procedural codes, the situation has changed. Now, the term “electronic evidence” means information in electronic (digital) form, which contains the circumstances relevant to the case, in particular, electronic documents (including text documents, graphic images, plans, photographs, video and audio recordings, etc.), web sites (pages), text, multimedia and voice messages, metadata, databases, and other data in electronic form. Such data may be stored, on portable devices (memory cards, mobile phones, etc.), servers, back-up systems, and other places of data storage in electronic form (including the Internet).

Therefore, it can be predicted that in the nearest future the protection of intellectual property rights from violations in the Internet will go up, as now the websites (pages) are considered to be an evidence and judges have to take them into account. However, electronic evidence shall be provided in the original or in electronic form, certified by an electronic digital signature, which is the equivalent to a personal signature in accordance with the Law of Ukraine «On Electronic Digital Signature». Electronic evidence may also be given as paper copy, certified in accordance with the law. The participant of the case, who submits a copy of the electronic evidence, must indicate that he or the other person has the original electronic evidence.

If a copy (paper) of electronic evidence is filed, the judge may, at the request of the participant of the case or on his own initiative, request an original electronic evidence. If the original of the electronic evidence is not filed, and the participant or the judge doubts the conformity of the submitted copy (paper) of the original, such evidence is not taken into account. Originals or copies of electronic evidence are kept by the court together with the rest of the materials of the case.

But there is the cloud in the silver lining – at the moment the requirement to provide the original electronic proof is rather unclear. How can the claimant be able to provide the original web page? Oleksandr Ryabets hopes that in practice these provisions will be clarified by the Supreme Intellectual Property Court. It is clear that the judges are empowered, at the request of a participant in the case or on their own initiative, to revisit the website on the Internet in order to establish its content in the course of the court session, but it is highly doubtful that before the court the defendant will not remove illegal content from his website. Consequently, it is reasonable to hold the fixation of web pages in expert institutions, at the “Center of expertise” of the Consortium “Ukrainian Center for Supporting Numbers and Addresses” (the “Center of Competence”), before filing claims and lodging lawsuits.

If we proceed from the requirements of the resolution of the Plenum of the Supreme Economic Council № 12 dated 17.10.2012 “On some issues of the practice of resolving disputes related to the protection of intellectual property rights” awithout mentioning the electronic evidence, then there are two possible ways to stop violations on the Internet. The first one is to make a video fixation of a web page. The second is to provide relevant documents issued or certified by the institution or specially authorized person within their competence (in fact, the findings of expert institutions or the Center of expertise).

Oleksandr Ryabets noted that in practice of his company all possible options for fixations defined by the resolution of the Plenum of the HCGU have been provided as evidence. Regarding the video or audio recording the website – the judges did not provide them with a legal assessment in any of their decisions and substantiated their decision with other evidence, despite the fact that they investigated and reviewed such video fixations.

Concerning the conclusions of the expert institutions or the Center of expertise the situation is fundamentally opposite: the judges gladly adopted their conclusions while making decisions and referred to them as evidence of an infringement of intellectual property rights in the Internet.

What innovations do we need to effectively protect the rights on the Internet?

This question was addressed to Yuri Goncharuk, the director of the Ukrainian Network Information Center (UANIC). According to the order of the Cabinet of Ministers of Ukraine dated July 22, 2003, No. 447-p “On Administration of the .UA domain” and Article 56 the Law of Ukraine “On Telecommunications” he is authorized to administer the address space of the Ukrainian segment of the Internet.

Yuriy Goncharuk said that on his initiative, in April 2016, a Center of expertise was created within the Consortium “Ukrainian Center for Numbers and Addresses Support” (UTSPL). He accredited the Center and confirmed his competence in the implementation of the functions of the Center of expertise of the address space of the Ukrainian the Internet network segment.

Basicly, the work of the Center of expertise was initiated by the so-called “trust model” in order to promote the comprehensive protection of intellectual property rights and the rights of individuals from violations in the Internet. The launch of this project is an alternative to the practice of other countries (Russia, Byelorussia) with notarization of web-site review protocols, which has a number of significant shortcomings, confirmed by the judicial practice.

An important role is played by the members of the trust model, including those whose rights have been violated on the Internet, registrants, registrars and registers, hosts, operators and ISPs, dns providers, lawyers, and judges. The list of participants is very wide and this means that the proposed model is based on the principle of “multistakeholder approach” (joint decision-making). The functions of the Center of expertise is fixing and researching the contents of web pages on the Internet with the issuance of expert opinions and issuing certificates for the establishment of the owner of the website.

If UANIC receives requests for information about the owner of the website, the registrant and / or the registrar of the domain name, the hosting provider, requests for confirmation of content on the Internet and other requests related to the need for protection of the rights on the Internet coming from either courts and lawyers or persons, whose rights require protection from violation on the Internet, the UANIC recommends you to contact the Center of expertise.

We asked the Director of the Center of expertise Natalia Razigraeva about the services the Center of expertise provides and how does it practically work so far:

The center of expertise provides services using the online service “WEB-FIX”. The fixation and analysis of the contents of web pages is free of charge and is available in unlimited amount. The issuance of expert opinion is the only thing to be paid for. This helps the person to provide himself with evidence of the placement of the relevant content at a certain point of the time, enabling the protection of the infringed rights in case of modification or deletion of such content in the future.

This toolkit can also be useful for owners of websites that are concerned about the exclusivity of the content, since the fixation of the newly created (updated) website content can further serve as proof of authorship.

During the period of the Center’s work, there has already been a positive practice of resolving disputes using the documents issued by the Center as evidence both in pre-trial and in court. At the same time, the judicial practice of resolving disputes with the use of such documents indicates a reduction in the time frame for resolving such disputes. On the website of the Center of expertise, you can get acquainted with such court decisions.

A positive change is also the experience of issuing certificates of the owner of websites that contain information in reverse mode. Such certificates help to establish the proper defendant in case of changing the information about registrant and / or registrar in the WHOIS service if the offense in the Internet took place (for example, the decision of the Commercial Court of the Kyiv region dated June 20, 2017 in case No. 911/3460/15).

Concerning the expert conclusions on the results of the fixation and analysis of the content of web pages on the Internet, the latter are accepted by the courts as proper and sufficient evidence (for example, the decision of the Commercial Court of the Odessa region dated August 07, 2017, on case No. 916/1366/17; the ruling Dnipropetrovsk Commercial Court of Appeal from August 31, 2017, on case number 904/3150/17; decision of Kramatorsk City Court of Donetsk region from September 08, 2017, in case number 234/18700/16-ts).

Natalia Razygraeva provided statistics on customer appeals to the Center of expertise: 80% – regarding the dissemination of inadequate information and the protection of honor, dignity and business reputation; 15% – regarding violation of intellectual property rights; 3% – concerning domain disputes; 2% – concerning counterfeit products.

Do we need any other changes of legislation that should support the rights protection on the Internet?

Yuriy Goncharuk notes that even in the Concept of the development of telecommunications in Ukraine, approved by the Cabinet of Ministers of Ukraine from June 7, 2006, No. 316-r, it was envisaged that the regulation of the registration, administration and use of addresses and names in the Ukrainian segment of the Internet should be regulated at the legislative level. However, it has not been done yet.

The main issue concerning defining website owners is the disclosure of personal data domain names registrars and hosting services users and interpretation of the Law of Ukraine “On Protection of Personal Data” by the owners / administrators (domain name registrars, hosting providers) of such information. The data of legal entities a priori do not fall within the scope of this Law, since personal data can only be received from individuals.

To resolve this issue, it is necessary to stipulate at the legislative level, the adoption of the Rules for registration and use of domain names in the Ukrainian segment of the Internet, but, as of today, they are absent. These Rules should contain a single terminology; the terms and conditions of service provision; procedure for suspending the delegation of a domain name – as a mechanism for protecting the subjects whose rights are violated; determine the status of the data on the domain name registrar, the procedure for their confirmation, concealment / disclosure; to consolidate the procedure for pre-trial settlement of domain disputes, etc.

Without a comprehensive approach to addressing the identified problem issues, we will only get new ones.

UANIC has done a great work to implement such changes. As early as 2015, a working group was set up on the basis of the State Intellectual Property Service of Ukraine (SSIV), which was working on the drafting of a bill on the protection of intellectual property rights on the Internet and the legitimization of the pre-trial settlement of domain disputes. As a result, the draft Law of Ukraine “On Amendments to Certain Legislative Acts on the Protection of Copyright and Related Rights in the Internet” was worked out. Due to this draft law, it became possible to solve the complex of urgent issues, in particular by introducing the work of the Center of expertise.

However, this draft law, the development of the final version of which was implemented by the Ministry of Economic Development, was registered in the Verkhovna Rada of Ukraine (registration number 3353 of October 23, 2015), without number of substantive provisions initiated by UANIC.

It should be noted that in December this year, US President Donald Trump decided to suspend the duty-free importing for Ukrainian goods introduced within the framework of the General System of Preferences due to the insufficient efforts of the Ukrainian authorities to ensure adequate and effective protection of intellectual property rights. There is something to think about …

Yuriy Goncharuk strongly supports the functioning of the Center of expertise as a framework for facilitating the work of human rights defenders and judges, as well as developing a positive judicial practice for the effective protection of intellectual property rights and the rights of individuals from violations on the Internet. However, without adopting legislative changes, law-enforcement practice will have many issues and different approaches.

We asked Oleg Zhukhevych, an attorney, what kinds of disputes on the Internet he faced most often.

He said that the most often in his practice on the Internet there are disputes related to the violation of rights to trademarks and commercial names, including domain disputes, as well as a large number of disputes arises related with copyright infringement. The number of such disputes has continued to increase in recent years. In this case, about 80% of such disputes are resolved pre-trial.

What technical aspects hinder or promote the effective protection of the rights on the Internet? 

We came up with this question to Yuriy Kargapolov, General Director of “Ukrainian Number and Address Operation Center” (UNAOC).

He noted that the blocking of content as it is implemented today is not an effective way of protecting the rights on the Internet.

A very interesting analysis of the application and the prospects for blocking Internet resources was presented at a specialized discussion panel during the ENOG’14 conference in Minsk. In 2017, it was one of the most highly professional discussions of the problem. The results are published on https://habrahabr.ru/company/qrator/blog/342846/.

It is necessary to understand that the Internet is on the eve of a large-scale technological revolution. This is due to blockchain technologies, expanding the practice of using encryption protocols for any custom traffic, countering cyber threats, expanding the spectrum of services, using identifiers, and also with the inevitable transition to internationalized identifiers.

Today the increase of the amount of domains of the highest level have an influence on the intellectual property protection. Today we already have 1232gTLDs (such as .com and .org domains) and 312 ccTLDs (these are “.UA”, “.UKP” type domains).

New challenges encourage awareness of the need for new approaches to work, since the old ones are no longer effective. Technologically, today the transition to data storage in distributed databases has started, instead of centralized ones.

All these factors will inevitably lead to a revision of the principles, methods, procedures, which we now used to apply for the fixation, collection and investigation of electronic evidence.

Yuriy Kargopolov noted in an effective way the practice of applying modern systems for fixing offenses and bringing the perpetrators to justice.

All these factors will inevitably lead to a revision of the principles, methods, procedures, which we now used to apply for the fixation, collection and investigation of electronic evidence.

Yuriy Kargopolov considers practice of applying modern systems for fixing offenses and bringing the perpetrators to justice very effective.

When using the WHOIS data (which includes, in particular, registrar and domain name registrar information) one can face difficulties while identifying the owner of the web-site because this service was originally created not for the purpose of publicly displaying data to resolve possible legal issues (establishing appropriate defendants). It was created in order to display the information about the contact persons in case administrative or technical issues regarding the domain name appear. This service shows available data only at the current time, without being able to return time mode.

In addition, the position of some registrars regarding the disclosure of registrants data only on request of the court does not facilitate the identification of the website owner for the possible pre-trial settlement of a dispute or filing a statement of claim to a court. This position poses a great risk of impossibility to identify a website owner, since the domain name registrar may at any time change his or her own data, and moreover, change the registrar of the domain name. The person who finds out about the violation of her rights on the Internet has to identify the owner of the website at the time of the violation. But he will not have such an opportunity if the defendant takes care of it in advance.

Yuriy Kargopolov emphasized that in order to regulate the issue of the identification of website owners, there should be a concerted effort among all the “stakeholders” of the Internet market, and only in this case there will be a positive effect.

Then appears a question: Doesn`t the rejection of the “trust model” by individual participants ruin it? As the experience shows, Yuri Kargapolov emphasized – the level of trust is increasing, as “stakeholders” are beginning to realize the existing problems and the benefits of coherent work. The process of working out an experience is ongoing, which will help to draw conclusions, make informed decisions about the effectiveness of the implemented model and develop effective approaches.

Director of the State Scientific-Technical Library of Ukraine, Doctor of Economic Sciences, Alla Zharinova devoted a lot of time to the development of the state system of intellectual property and we asked her about what should a person who wants to protect his rights on the Internet do?

Global development of science and technology accelerates economic processes in society, causes widespread use of electronic communication and information technologies, among which the information on the Internet is being rapidly spread.

Using Internet in everyday life by most of the users has transformed it into a field for doing business and increased the trust to services provided through the network. However, the massive use of the Internet creates the possibility of disseminating inaccurate information, plagiarism, unlawful use of unique copyrighted content, and other types of violations.

To be able to protect your rights on the Internet, it’s important to learn about existing tools, which lawyers always talk about.

Speaking of possibility to protect intellectual property rights, it is important to take care of obtaining security documents in advance. At the same time, copyright does not require formalities (mandatory state registration), but the author has the opportunity to use the copy of copyright © in the Internet, thereby preventing everybody that his intellectual property is protected and to notify users about the terms of use of the content.

You can also use the services of SSTL of Ukraine for fast and convenient deposit of the results of their intellectual activity (in particular, the publication), which will allow the author to preserve it for descendants, and to use the certificate of deposit as proof of authorship if necessary (in particular, in case of a dispute). This service is available as for the owner of the site and the author of the content.

Violation of rights can undo all the efforts of the website owner to promote the resource on the network, lead to financial, moral and image losses. To prevent this, it is necessary to apply a comprehensive approach to protection of intellectual property rights in the network, which should include several aspects: technical – use of software that prevents unauthorized copying of texts and photos; informational – to bring to the attention of the site visitors the conditions under which using site materials is possible; legal – the most important and significant, since it involves the formation and collection of evidence of the fact of your authorship, the existence of property rights to use the object of intellectual property rights, the fact of placing relevant content on the Internet at a certain point in time.

So, 2017 was full of legislative changes, the results of which we will be able to evaluate in law enforcement activities, and the new challenges of technological development predict the inevitable changes in approaches to protecting the rights on the Internet.