Prospects for changes in criminal liability for copyright infringement: decriminalization or toughening?
The State Duma is considering draft law No. 532911-8 "On Amending the Criminal Code of the Russian Federation", prepared by the Government of the Russian Federation, which provides for the mitigation of criminal liability for infringement of copyright and related rights.[1]. Работы над проектом велись на протяжении достаточно длительного времени[2], предстоит его рассмотрение в первом чтении.
It is planned to amend the note to Article 146 of the Criminal Code of the Russian Federation, which defines the threshold values of large and especially large size of a crime, upon reaching which a criminal case may be initiated. At present, such thresholds are one hundred thousand rubles (large size) and one million rubles (especially large size). It is envisaged to increase them, respectively, to five hundred thousand rubles and two million rubles.
In the case of illegal use of works or objects of related rights, acquisition, storage, transportation of counterfeit copies of works or phonograms for the purpose of sale, committed on a large scale, paragraph 2 of Article 146 of the Criminal Code of the Russian Federation provides for a penalty of up to 2 years of imprisonment. The preservation of a relatively low "entry threshold" led to the fact that even a single infringement of rights could formally be considered a crime, for example, the illegal installation of a computer program, the cost of a license to use which is more than one hundred thousand rubles.
In addition, when the above acts are committed on a particularly large scale (over one million rubles), article 146, paragraph 3, of the Criminal Code of the Russian Federation, which provides for imprisonment for up to six years as the maximum penalty, is applicable, and therefore the acts falling under it are regarded as serious crimes.
Apparently, the authors of the draft Criminal Code of the Russian Federation, when developing the relevant norms, assumed that the majority of violators of copyright and related rights will stop at the first line and as a private prevention get a conviction for a crime of minor gravity. But in practice the situation turned out to be diametrically opposite. Thus, according to the data of the Judicial Department under the Supreme Court of the Russian Federation, given in the Explanatory Note to the draft law, a total of 342 persons were convicted under Article 146 of the Criminal Code of the Russian Federation for the period from 2020 to 2022, of whom only 68 (20%) were convicted under Part 2 of Article 146 of the Criminal Code of the Russian Federation and 274 (80%) were convicted of committing a serious crime under Part 3 of Article 146 of the Criminal Code of the Russian Federation.
Raising the thresholds for major and especially major damage is expected to make a difference by decriminalizing about 26% of crimes[3]By transferring them into the category of administrative offenses and mitigating liability for some of the persons currently prosecuted under Part 3 of Article 146 of the Criminal Code of the Russian Federation. At the same time, some representatives of Russian software developers are concerned that the proposed measures may contribute to further growth of "piracy".
It is interesting to recall that this approach has already been applied in practice. Thus, the current thresholds were set in 2011, replacing the levels of fifty and two hundred and fifty thousand rubles introduced in 2003. Depending on the accumulated inflation rate, the current increased "entry" thresholds may also become obsolete within a few years or a decade.
It may make sense to switch to indexation of this kind of formal thresholds, for example, taking into account the consumer price index, as provided for in Article 134 of the Labor Code of the Russian Federation, or to return to the principle of calculations based on the minimum wage, as was the case before 2003.
In addition, it is important to take into account that the liability provided for in Part 3 of Article 146 of the Criminal Code of the Russian Federation is not in all cases related to the commission of a criminal act on a particularly large scale. "Especially large size" is one of the three possible qualifying features used in the paragraph in question, along with the commission of a crime by "a group of persons by prior conspiracy or an organized group of persons" and the commission of a crime by "a person using his official position".
For example, the head of a company who has committed an infringement of copyright or related rights under Part 2 of Article 146 of the Criminal Code of the Russian Federation will be liable under Part 3 of the said Article due to the presence of the above qualifying feature, as an official. Similarly, the commission by several persons of an infringement for which they individually would be liable under Part 2 of Article 146 of the Criminal Code of the Russian Federation, if the links between them are proved, will lead to their prosecution for a serious crime, even if the "especially large size" has not been reached.
It is still too early to predict exactly what consequences the proposed changes will lead to in practice. At present, the establishment of substantial punishment at a relatively low threshold of criminal liability leads to the fact that when considering cases of criminal liability under paragraph 2 of Article 146 of the Criminal Code of the Russian Federation, the courts often limited themselves to awarding suspended sentences or replacing them with alternative sentences. Only time will show whether this trend will continue after the introduction of amendments.
At the same time, for the majority of right holders a much more important issue in comparison with bringing to criminal liability of guilty persons is to ensure the restoration of the property sphere of the injured party, which is carried out according to completely different rules in comparison with bringing to criminal liability, since the composition of a civil law tort itself is fundamentally different from the composition of the crime provided for by Article 146 of the Criminal Code of the Russian Federation.
[1] https://sozd.duma.gov.ru/bill/532911-8
[2] https://iz.ru/1626975/2023-12-27/pravitelstvo-odobrilo-smiagchenie-otvetstvennosti-za-narushenie-avtorskikh-prav
