Certain procedural aspects of the institute of interim measures in protection of copyright and related rights

Abstract

The article analyses the peculiarities of the institute of interim measures and preliminary interim measures provided by the section 144.1 of the Civil Procedural Code of the Russian Federation in the part of their taking by the court. The authors draw attention to the temporary nature of interim measures, which involves the return of the parties to the initial position in the event that the claims are recognized by the court as unfounded. However, difficulties of a technical nature arise in this part when the court takes preliminary injunctive relief under section 144.1 of the Code of Civil Procedure of the Russian Federation in the form of obliging the Federal Service for Supervision of Communications, Information Technology and Mass Communications and other persons to stop creating technical conditions for the placement, distribution and other use of the disputed musical work. As a rule, after the filing of an application for interim measures by the applicant claiming that his rights have been violated by placing an object of copyright and related rights on the Internet, either the defendant himself or the Federal Service for Supervision of Communications, Information Technology and Mass Media essentially removes the corresponding work or a link to it. After filing an action to prohibit the creation of technical conditions for the placement, distribution and other use of the disputed work, in accordance with the procedure stipulated by part 5 section 144.1 of the Civil procedural code of the Russian Federation for its consideration on the merits sometimes requires the expertise to establish the identity of the work posted on the Internet by the defendant and the work in respect of which the plaintiff claims the exclusive rights. This is particularly relevant when disputes arise regarding the posting of phonograms, since multiple phonograms are allowed and the court needs to establish the identity of the phonogram claimed by the plaintiff and the phonogram posted by the defendant and in respect of which the court has taken preliminary injunctions. Even the mere possibility for the defendant to re-post the phonogram on its website after the plaintiff’s claims have been found unfounded does not undermine the fact that the restoration of the defendant's rights to post the phonogram on its website is not through the lifting of provisional measures to resume access to the previously posted work, but through its new posting by the defendant. The foregoing contradicts the provisional nature of the interim measures.