by Janne Suutarinen

In the beginning of November, BBC News announced that three major Russian internet companies, Yandex, and Rambler, have teamed up with leading media production companies  to sign a memorandum combating piracy. The guarantor of the agreement’s execution will be Roskomnadzor, the Federal Service for Supervision of Communications, Information Technology, and Mass Media.

The memorandum stipulates that the media  will create a register of websites hosting pirated materials. The internet service companies oblige themselves to consult the register every five minutes and remove listed websites from their search engine results within six hours.

According to BBC News, the copyright holders that have signed the memorandum are Gazprom-Media, National Media Group, Channel One, All-Russian State Television and Radio Broadcasting Company (VGTRK), STS-Media, Association of Film and Television Producers, Internet Video Association (online cinema association), video platform Ruform, as well as Yandex-owned Other copyright holders are welcomed to join the agreement.

Russian Media Lab’s Mariëlle Wijermars (PhD), who conducts research on media and internet governance in Russia, thinks the memorandum is an interesting case because it creates a new mechanism of internet content control that operates outside of existing legal structures.

“This means that you no longer have to go to court to resolve all piracy issues. Before, the court

Mariëlle Wijermars says we need to wait and see how the memorandum starts to function in practice.

would decide whether a website is indeed involved in or enabling piracy, and whether it should be blocked. Then Roskomnadzor would add it to the ‘blacklist’ and block it.” The memorandum, instead, targets the search engines that create most of the traffic to these websites. “This is a major shift.”

The system created by the memorandum may be an improvement in tackling piracy since the traffic to websites that host pirated content can be reduced quickly, Wijermars points out. In this regard the voluntary agreement between internet services and media copyright holders can be seen as an improvement in protecting the rights and business of the cultural industry. But on the other hand, it opens up the potential for misconduct.

“Let’s think of a fictional scenario. If you would want to take down a website, you could place some copyrighted content on that page that is owned by one of the signatories. The website is then added to the register and removed from search results. When there is no court involved, it can happen very fast”, Wijermars considers the possible threat. In particular for online platforms that allow users to upload materials to their websites this would be a potential danger. More generally, the creation of a register that causes websites to disappear from search results and that is compiled by commercial companies, many of which have direct political ties, gives cause for concern.

The path of European ‘meme law’?

Wijermars finds in the news some similarities with the recent discussion in the European Union about the protection of intellectual property rights online that could affect, for example, the use of copyrighted materials for memes, mashups and such. In September, the EU passed the so-called ‘meme law’, which imposes the responsibility for copyright violations on the platforms on which they are shared or hosted. The new memorandum in Russia seems to be in line with the general trend of putting pressure on internet service providers and online platforms.

A clear consequence of the memorandum is a change in the infrastructure of information distribution as it will lead to a substantial change in what information one has easy access to. What remains to be seen is to what extent and for whom the ‘innovation’ will turn out to be a positive development and who may be negatively affected, as well as whether the internet companies will comply with what the register dictates.

“What is unclear from the current news item is what will happen if an internet company does not comply, what the repercussions will be. If for instance Yandex decides that the content on a website that has been put on the list does not meet their definition of piracy but is instead classified as fair use. This depends on their legal definitions. You could see things moving in the direction where, for instance, if you use a snippet from a Russian TV series in your, let’s say Aleksei Navalny‘s political clip, it might suddenly be considered as piracy.”

The fair use principle may be well known in Russia, but its application depends on political will, Wijermars thinks.

“I can imagine Yandex using the principle to defend a certain choice of theirs. You can also easily imagine the other way around. The signatories include huge media companies, for example Gazprom-Media, that are partially state-owned or have state-friendly owners. In some cases, they might want to interpret the limits to fair use differently.”

Wijermars emphasises that, in general, it is difficult to view the piracy memorandum in a negative light only, if one agrees that fighting piracy is a good thing for protecting cultural industries in a market economy.

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