Kukel Vladislav Valentinovich,
candidate of legal sciences,
lead Counsel
LLC "Legal Company"
"Your Legal Assistant"
Administrative (Article 7.12, 14.33 of the Code of Administrative Offenses of the Russian Federation)
Criminal (Article 146 of the Criminal Code of the Russian Federation)
Civil law (Art. 12, 1252, 1301 of the Civil Code of the Russian Federation)
IMPORTANT! The cost of counterfeit copies of programs is determined by the cost of their licensed copies in retail.
Administrative responsibility:
Punishable act: importation, sale, rental or other illegal use of copies of works in order to generate income in cases where copies of works or phonograms are counterfeit, as well as other violation of copyright and related rights in order to generate income (Article 7.12 of the Code of Administrative Offenses of the Russian Federation) The use of counterfeit software in the daily work of an organization is tantamount to the illegal use of works for the purpose of generating income.
The cost of counterfeit copies of works: up to 50,000 rubles
Punishment:
For citizens: the imposition of an administrative fine in the amount of one thousand five hundred to two thousand rubles;
For officials - a fine of ten thousand to twenty thousand rubles;
For legal entities - a fine of thirty thousand to forty thousand rubles.
In all cases, confiscation of counterfeit copies of works, as well as materials and equipment used to reproduce them, and other instruments of committing an administrative offense are applied.
Criminal Liability:
Punishable act: Article 146 part 2 of the Criminal Code of the Russian Federation: illegal use of objects of copyright, committed on a large scale;
Article 146 part 3 of the Criminal Code of the Russian Federation: the acts provided for by part two of this article, if they are committed:
b) by a group of persons by prior agreement or by an organized group;
c) on an especially large scale;
d) by a person using his official position
Cost of counterfeit copies
from 50,000 to 250,000 rubles (large size)
more than 250,000 rubles (especially large size)
Punishment:
Part 2: a fine in the amount of up to two hundred thousand rubles or in the amount wages or other income of the convicted person for a period of up to eighteen months, or by compulsory labor for a term of one hundred and eighty to two hundred and forty hours, or by deprivation of liberty for a term of up to two years.
Part 3: deprivation of liberty for a term of up to six years with or without a fine in the amount of up to five hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to three years.
Civil Liability:
Punishable act: violation of exclusive rights
The cost of counterfeit copies: does not matter
Punishment:
compensation in the amount
From ten thousand rubles to five million rubles, determined at the discretion of the court;
Double the cost of copies of the work
For repeated or gross violation of exclusive rights, liquidation of a legal entity is possible
Features of bringing to responsibility different types
The presence of guilt is a prerequisite for bringing to criminal and administrative responsibility. Fault is not required for civil liability. Simultaneous bringing to administrative and criminal liability is impossible. Only criminal liability individual(head or system administrator); legal entities cannot be held criminally liable.
Grounds and procedure for inspections
Departments conducting copyright inspections:
OBEP (UBEP)
Department (Department) "K" (subdivisions for combating crimes in the field of high technologies)
Procedural grounds for conducting an audit:
Separate order
Decree on the production of operational-search measures
Regulations regulating the actions of inspectors:
Law of the Russian Federation "On the Police"
Code of Criminal Procedure of the Russian Federation
Law of the Russian Federation "On operational-search activity".
Code of the Russian Federation on Administrative and Legal Violations
Order of the Ministry of Internal Affairs of the Russian Federation No. 636 of August 02, 2005 "On approval of instructions on the procedure for conducting inspections and audits of financial, economic, entrepreneurial and trading activities by police officers"
Approximate algorithm of actions of inspectors
Present a certificate
Submit a decision to conduct an operational-search activity (inspection)
Invite a specialist (if present)
They ask to provide documents confirming the legality of using the software
An external examination of computers is carried out in order to establish the presence of stickers, hardware keys and other evidence of the legality (or illegality) of using programs
Product keys (copy serial numbers) on each computer are examined
The structure of directories and files is being investigated (the goal is to establish a list of programs used, to identify malware)
Investigation of documents and accessories confirming the legality of using software found on computers
Making a decision on the need to seize computers for research and resolving the issue of initiating a criminal case
Approximate algorithm of actions of the checked
Check documents with inspectors, it is advisable to rewrite the data for each
Check for a resolution to conduct an audit (necessarily approved by the head and must include the composition of the participants)
Provide as many documents as possible confirming the legality of using the software
Convince inspectors of the legality of using the software to avoid seizure of computers
In case of committing illegal actions prepare a “bridgehead” for appealing against the actions of inspectors, record their actions in as much detail as possible, if necessary, write comments on the inspection report (minutes)
Conduct an audit of the software used at the enterprise, and this should be done not by your system administrators, but by employees of third-party organizations who specialize in this. The purpose of the audit is to understand what software is used, whether there is unlicensed software among it, so that in the event of an audit by law enforcement agencies, there will be no surprises.
In the case of a large number of used computers, implement a license management system at the enterprise.
When purchasing software, keep all documents about it and even correspondence with the software seller.
Solve the issue of setting up the purchased software for accounting.
AT separate subdivisions(branches, representative offices) or affiliates to have notarized documents confirming the legality of the acquisition and use of the software.
Have a set of documents already prepared at the enterprise confirming the legality of using the software, so that in the event of an inspection, immediately provide documents to the inspectors in order to avoid the seizure of computers.
In the event that any documents confirming the legality of the use of the software are drawn up on foreign language, it is necessary to make a translation of such documents in advance, and its notarization will not be superfluous.
Types of liability for copyright infringement: Administrative (Article 7.12, Code of Administrative Offenses of the Russian Federation) Criminal (Article 146 of the Criminal Code of the Russian Federation) Civil law (Articles 12, 1252, 1301 of the Civil Code of the Russian Federation) NB! The cost of counterfeit copies of programs is determined by the cost of their licensed copies in retail sales 2008 © UK VPP LLC
Administrative liability Punishable act: importation, sale, rental or other illegal use of copies of works in order to generate income in cases where copies of works or phonograms are counterfeit, as well as other violation of copyright and related rights in order to generate income (Article 7.12 of the Code of Administrative Offenses RF) The use of counterfeit programs in the daily work of an organization is equated to the illegal use of works for the purpose of generating income. Cost of counterfeit copies of works: up to rubles Punishment: For citizens: imposition of an administrative fine in the amount of one thousand five hundred to two thousand rubles; For officials - a fine of ten thousand to twenty thousand rubles; For legal entities - a fine of thirty thousand to forty thousand rubles. In all cases, confiscation of counterfeit copies of works, as well as materials and equipment used to reproduce them, and other instruments of committing an administrative offense
Criminal liability Punishable act: Art. 146 part 2 of the Criminal Code of the Russian Federation: illegal use of objects of copyright committed on a large scale Art. by prior agreement or by an organized group; c) on an especially large scale; d) by a person using his official position Cost of counterfeit copies from up to rubles (large amount) more than rubles (especially large amount) Punishment: Part 2: a fine in the amount of up to two hundred thousand rubles or in the amount of wages or other income of the convicted person for the eighteen months, or by compulsory works for a term of one hundred and eighty to two hundred and forty hours, or by deprivation of liberty for a term of up to two years. Part 3: deprivation of liberty for a term of up to six years with or without a fine in the amount of up to five hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to three years
Civil liability Punishable act: violation of exclusive rights Cost of counterfeit copies: does not matter Punishment: compensation in the amount of ten thousand rubles to five million rubles, determined at the discretion of the court; in double the cost of copies of the work For repeated or gross violation of exclusive rights, liquidation of a legal entity is possible 2008 © UC VPP LLC
Features of bringing to responsibility of different types The presence of guilt is a prerequisite for bringing to criminal and administrative responsibility. Fault is not required for civil liability. Simultaneous bringing to administrative and criminal liability is impossible. Only an individual (manager or system administrator) is subject to criminal liability; legal entities cannot be held criminally liable © UK VPP LLC
Grounds and procedure for inspections Subdivisions conducting inspections of copyright compliance: - OBEP (UBEP) - Department (Department) "K" (divisions for combating crimes in the field of high technologies) investigative activities Normative acts regulating the actions of inspectors: - Law of the Russian Federation "On the Police" - Code of Criminal Procedure of the Russian Federation - Law of the Russian Federation "On Investigative Activities". - Code of the Russian Federation on Administrative and Legal Violations - Order of the Ministry of Internal Affairs of the Russian Federation 636 dated August 02, 2005 "On approval of instructions on the procedure for conducting inspections and audits of financial, economic, entrepreneurial and trading activities by police officers" 2008 © UC VPP LLC
An approximate algorithm of actions of inspectors Present a certificate Present a decision to conduct an operational-search activity (inspection) Invite a specialist (if present) Ask to provide documents confirming the legality of using the software An external examination of computers is carried out in order to establish the presence of stickers, hardware keys and other evidence of legality ( or illegality) of the use of programs Examine the product keys (serial numbers of copies) on each computer Examine the structure of directories and files (the goal is to establish a list of programs used, identify malware) Examine documents and accessories confirming the legality of using the software found on computers Decide on the need confiscation of computers for investigation and resolution of the issue of initiating a criminal case 2008 © UC VPP LLC
Approximate algorithm of actions of the verifiers - Check the documents of the inspectors, it is advisable to copy the data for each - Check for a resolution to conduct an audit (necessarily approved by the head and must include the composition of the participants) - Provide as many documents as possible confirming the legality of using the software - Convince the inspectors of legality use of software to avoid seizure of computers - In case of illegal actions, prepare a "bridgehead" for appealing against the actions of inspectors, record their actions as detailed as possible, if necessary, writing comments on the inspection report (minutes) 2008 © UC VPP LLC
Recommendations The main recommendation is to use licensed software in enterprises. Conduct an audit of the software used at the enterprise, and this should be done not by your system administrators, but by employees of third-party organizations who specialize in this. The purpose of the audit is to understand what software is used, whether there is unlicensed software among it, so that in the event of an audit by law enforcement agencies, there will be no surprises. In the case of a large number of used computers, implement a license management system at the enterprise. When purchasing software, keep all documents about it and even correspondence with the software seller. Resolve the issue of setting up the purchased software for accounting. In separate subdivisions (branches, representative offices) or affiliates, have notarized documents confirming the legality of the acquisition and use of the software. Have a set of documents already prepared at the enterprise confirming the legality of using the software, so that in the event of an inspection, immediately provide documents to the inspectors in order to avoid the seizure of computers. If any documents confirming the legality of using the software are drawn up in a foreign language, it is necessary to make a translation of such documents in advance, and its notarization will not be superfluous © UC VPP LLC
Useful links - Non-commercial partnership suppliers software products or belegal.ru - Microsoft Corporation ukvpp.ru - Law Firm "Your Legal Assistant" LLC Email for questions: 2008 © UK VPP LLC
work experience
5 years 5 months
Lead Counsel
LLC "Legal company "Your legal assistant" in
Jurisprudence
Responsibilities:
Protection of consumer rights in courts of general jurisdiction and government agencies, cooperation with the territorial departments of the Rospotrebnadzor of Moscow, the Economic Crime Department, Department "K" in terms of holding sellers accountable (Article 7.12 of the Code of Administrative Offenses of the Russian Federation, Article 146 of the Criminal Code of the Russian Federation).
Arbitration disputes (the subject matter and grounds for claims are diverse (collection of funds under civil law contracts, obligation to perform certain actions, appeal against normative and non-normative acts of bodies state power and local government and etc.).
Divorce proceedings of varying degrees of complexity.
accidents at various stages.
Registration of legal entities and amendments to founding documents legal entities
Conducting business seminars (groups of up to 100 people) for managers of small and medium-sized businesses on liability issues in the implementation of trading activities, including counterfeit software, CDs and DVDs.
Support of execution proceedings.
Lawyer (claims settlement)
OOO "AltTelecom" in
Jurisprudence
Responsibilities:
Arbitration disputes (collection of losses under contracts for work, supply, insurance).
T ore disputes with workers.
At the head cases (Articles 158, 167 of the Criminal Code of the Russian Federation as a representative of the victim and the civil plaintiff).
Civil cases in courts of general jurisdiction and global divisions (consumer protection disputes).
Property insurance (maintenance of the register of insurance contracts, registration of insurance payments).
legal adviser
CJSC "Sprut" in
Jurisprudence
Responsibilities:
Conclusion, modification, termination of contracts (supply, research and development and design work, storage, transportation, rent).
Legal support of the company's activities in terms of the functioning of titles of title (patents), assignment of titles of title to third parties.
Claim and lawsuit work in the areas of protection business reputation companies, recovering lost profits from third parties, challenging non-normative and regulatory acts of state authorities.
Representing the interests of the company in the courts of second and supervisory instances, law enforcement agencies Moscow and regions of the Russian Federation.
Head of the legal department
Jurisprudence
Responsibilities:
Management of the legal department (2 people).
Advising company management on legal matters.
legal adviser
JSC "9th Taxi Park" in
Jurisprudence
Responsibilities:
Change and termination of contracts in court
(leasing agreements, real estate lease, transportation, supply of goods, contracts,
real estate mortgage). Recovery from unscrupulous partners for
civil law contracts of debt obligations, their forced
execution, as well as bringing to responsibility (civil law,
administrative, criminal). court order contesting and recovering damages from an accident, in
including and causing harm to the health of the victims. Support of enforcement proceedings, including
appeal against actions / inaction of bailiffs - performers and their involvement
to administrative responsibility; Representing the interests of the company in criminal cases (art.
158, 159, 167 of the Criminal Code, etc.). Arbitration proceedings of an intangible nature (prohibition
take actions, invalidate normative/non-normative acts
public authorities and local governments, protection
business reputation). Appeal against decisions of courts of first instance (appeal and
cassation proceedings), resumption of consideration of cases on newly opened
circumstances. Besides, in official duties included: development
draft agreements (rent, leasing, transportation, supply, mortgage of real estate),
preparation of supporting documentation for draft contracts and claims against
partners.
Achievements:
Collected debts (rent) from partners of previous years. Allowed in favor of (or at minimal cost to
companies) 23 cases (judicial proceedings) about road accidents, 3 criminal cases. Prosecuted 2 officials(from the FSSP to
Moscow).
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