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ARCHIVE FOR 2015    RUSSIAN

Ноябрь 2015

CONTENT

 

 

Interview of the issue

 

 

The Event. Comments of the Experts

 

Topic of the issue

V.O. Kalyatin. On the Prospects of the Application of the Fair Use Doctrine in Russia
The article discusses the “fair use” doctrine, its advantages and disadvantages. The author makes a general conclusion that it is inadvisable to use this doctrine in the Russian Federation.
Keywords: intellectual property, Internet, copyright, exclusive right, copyright exceptions, fair use, fair dealing
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A.I. Savelyev. Criteria of Actual and Constructive Knowledge as A Condition for Bringing an Online Intermediary To Responsibility
The article is focused on the analysis of the existing knowledge standards for online intermediaries, as provided in the Article 1253.1 of the Civil Code of Russian Federation. Having started from the comparison of foreign and Russian case law, the author explores various criteria used for the conclusion whether online intermediary actually “knows” (actual knowledge) or “should have known” (constructive knowledge) about the infringement. The article also provides critical assessment of cases, where the presence of “constructive knowledge” criterion was revealed in public discussions about the infringement. From the author’s perspective such an approach imposes on the online intermediary an atypical obligation to monitor the Internet information space, resulting in censorship.
Keywords: online intermediary, ISP, hosting provider, Internet infringement
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V.V. Arkhipov. Intellectual Property in The Video Game Industry: Problems of Theory and Practice
The article presents an overall review of legal problems related to intellectual property law within the context of video games industry and gives an analysis of the legal regime of a video game as an object of intellectual property. Having addressed two basic approaches (video game as a complex object and video game as a software), the author concludes that the classification of a video game depends on the technical features of its design and content. This means that video games could be either a software or a complex object. The author assumes the possibility of legal protection of the games which, fully or partially, do not include classic copyrightable elements or which could be regarded as a database.
Keywords: intellectual rights, intellectual property, digital age, video games, multimedia product, software, database, protectability of intellectual property
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I.V. Nevzorov. Trademarks in the Digital Age: From Joust towards Total War
The article denotes changes of strategies and tactics of parties in the dispute over means of individualisation caused by development of digital technologies. The author formulates the concept of dispute about brand and points out the importance of the key models of one’s competitor’s behavior (the so-called pattern of a right holder) for forecasting and shaping the strategy for handling a certain dispute in the present context.
Keywords: intellectual property, trademarks, IP disputes, pattern of a right holder, brand, digital research
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Judicial practice. Comments

A.P. Sergeev, T.A. Tereshchenko. New Judicial Interpretation of the Rules about Limitation On Actions: a Commentary on the Plenary Ruling of THE Supreme Court OF THE Russian Federation dated 29 September 2015 No. 43
The article presents a comparative analysis of the recent Ruling of the Plenary Session of the Supreme Court of the Russian Federation dated 29 September 2015 No. 43 “On Certain Issues Regarding the Application of the Regulations of the Civil Code of the Russian Federation on the Limitation of Actions” and its namesake dated 12/15 November 2001 No. 15/18, which is thereafter not to be applied. The authors comment on the new approaches to the law enforcement and pay attention to mistakes made in the interpretation of the rules about limitation of actions.
Keywords: limitation of actions, limitation period, commencement of limitation period, interruption of limitation period, suspension of limitation period
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Theory and practice

S.V. Mikhaylov. European and American Approaches to the Use of The Trademark under the Control of the Right Holder
The article is devoted to the comparison of the European and American theory and judicial practice approaches to the use of a trademark under the control of the trademark owner in light of the institute of the cancellation for non-use of the trademark. The author examines how these approaches are reflected in the current Russian legislation (item 2 of the Article 1486 of the Civil Code of the Russian Federation) and courts practice.
Keywords: trademark, use of a trademark, use of a trademark with the consent of the trademark owner, use of a trademark under the control of the trademark holder
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A.Yu. Braginets. Gift Cards and Certificates: Practical Problems of Legal Qualification
The article is devoted to particular legal problems arising in practice in connection with the turnover of gift certificates, cards and other similar objects. At the same time, the most significant consideration is given to the cases associated with the expiration of the respective instruments. The author examines existing law enforcement practice of Russian courts in light of the current civil legislation and regulations on consumer rights protection. The study indicates that the most reasonable approach presupposes qualifying a gift certificate as a private mean of exchange considered as an independent subject of the deal between a commercial and an acquirer of the certificate. On the author’s opinion, the circulation of such objects is subject to the regulations on consumer protection. According to the results of the research, decisions of Russian courts stay rather heterogeneous. Under such circumstances it is inferred that particular measures must be taken in order to unify the way in which the law applies. Finally, it is noted that current legislation governing the turnover of private means of exchange has a significant potential for improvement.
Keywords: gift cards, certificates, vouchers, consumer rights protection, private means of payment

 

E.V. Galkova. The Interrelation between the Principle of Capital Preservation and the Principle of Prospectus Liability of a Joint-Stock Company
The article focuses on comparative law analysis of fundamental corporate law principles: the principle of capital preservation and the principle of prospectus liability of a joint-stock company. The author analyses the issue of the interrelation between them and addresses the preference of the sole principle in cases when both of them should apply.
Keywords: comparative corporate law, fundamental principles of corporate law, firm capital principle, importance of authorised capital, issuer liability, securities prospectus, legal concept of prospectus liability
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E.M. Klyuchareva. The Business Judgment Rule in Directors’ Liability Cases: Law and Practice of Delaware (USA), Germany and the Russian Federation
The article elaborates on main elements and application of the business judgment rule in directors’ liability cases in Delaware (USA), Germany and the Russian Federation. US and German law provides that the business judgment rule is applicable if directors take a business decision while acting disinterestedly, independently, with due diligence and in good faith in best interests of the company. Though elements of Russian equivalent of the business judgment rule — actions falling within reasonable entrepreneurial risk are not explicitly described in the law, they can be extracted from court practice, especially from the presumptions stipulated in the Plenary Resolution of the Supreme Arbitrazh Court dated 30 July 2013 No. 62 on Certain Issues of Compensation of Losses by Members of a Legal Entity’s Management Board. They are similar to those recognised by foreign doctrine and include due diligence, good faith and acting in the best interests of the company. In all the three legal systems a director can claim business judgment rule defense only in duty of care cases as only duty of care is considered a “best efforts undertaking” by its legal nature. Duty of loyalty is a fundamental fiduciary duty of a director, thus, it is a prerequisite for business judgment rule, but not the sphere of its application as a director’s defense.
Keywords: directors’ liability, business judgment rule, reasonable business risk, rationality, good faith, due care
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A.V. Ilyin. Individual, the Right to Public Services and Budget Expenses
The article proposes a new approach to the determination of the content of the constitutional rights to public services. The author examines this issue in view of the interrelation of legal forms of financial activities of the state and the need to ensure the constitutional rights.
Keywords: the rights to public services, budget expenses, legal status of the individual
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M.A. Mikheyenkova. Current Issues of Revision of Judicial Acts in Criminal Cases on the Basis of New or Newly Discovered Circumstances in view of the Extension of the Number of Grounds for Revision
Revision of judicial acts in criminal cases (the so-called “revision on the basis of new or newly discovered circumstances”) in Russia has been recently extended through new legal grounds for revision: decisions of the Constitutional Court of the Russian Federation and of the European Court for Human Rights. Courts started to apply this procedure more extensively and a number of issues arose. The author starts with a brief outline of the theoretical concept and history of revision, noting that the newly introduced grounds differ considerably from the old ones. This causes ambiguity in understanding and use of this procedure. Firstly, revision is mixed up with cassation appeal and revision procedures. Secondly, due to this fact applicants have difficulties in exercising their right to access to the courts when they disagree with public prosecutor’s refusal to initiate revision proceedings. Thirdly, the Supreme Court of the Russian Federation broadly applies revision. Applicants, lawyers, law enforcement authorities and courts have to keep in mind the idea and legal grounds of revision to avoid these and other problems.
Keywords: revision, new and newly discovered circumstances, judicial review on criminal cases
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