Us Copyright Laws: Do They Apply In Russia?

Russia's complex relationship with international copyright law has been a cause for concern for many US companies, especially in light of the ongoing conflict in Ukraine. Despite US sanctions, it appears that US companies can still obtain, maintain, and enforce intellectual property rights in Russia. This is due, in part, to a General License issued on May 5, 2022, by the US Office of Foreign Asset Control, which permits US companies to protect their IP rights in Russia, despite economic sanctions. However, Russia has also taken steps to encourage and allow the use of IP by third parties without compensation to or permission from the IP owner, particularly from unfriendly countries, including the US. This has resulted in a complex and uncertain landscape for US companies trying to protect their IP in Russia.

US companies can obtain, maintain and enforce IP rights in Russia

US copyright laws do not apply in Russia. However, US companies can obtain, maintain and enforce IP rights in Russia.

Russia has been a signatory to several international copyright treaties, including the Universal Copyright Convention (UCC) and the Berne Convention. These treaties provide a framework for reciprocal copyright protection between signatory countries. Russia has also joined the Rome Convention, the World Intellectual Property Organization (WIPO) Copyright Treaty, and the WIPO Performances and Phonograms Treaty, further extending its international copyright obligations.

Despite US sanctions, US companies can obtain, maintain, and enforce IP rights in Russia. On May 5, 2022, the US Department of the Treasury Office of Foreign Asset Control (OFAC) issued a General License permitting US companies to procure, maintain, and enforce IP rights in Russia despite sanctions. This license authorises US companies to file and prosecute applications for IP protection, including patents, trademarks, and copyrights. It also allows for the renewal or maintenance of existing IP protections.

However, it is important to note that changes to Russian law and practice have impaired the IP rights of US and other "unfriendly" countries. Additionally, Russia has taken steps to encourage and allow the use of IP by third parties without compensation to or permission from the IP owner. For example, Russia has passed laws exempting the enforcement of IP rights for certain goods and permitting parallel imports, which override an IP owner's wishes.

To protect their IP in Russia, US companies should be vigilant and take proactive steps, such as registering their trademarks and monitoring the marketplace for any infringement or confusingly similar marks.

US sanctions on Russia

US copyright laws do apply in Russia, and Russia has been a signatory to several international copyright treaties. However, in response to sanctions during the 2022 invasion of Ukraine, Russia developed an unfriendly countries list, and copyright infringement by Russian citizens against any country on this list is authorised.

The US has imposed a range of sanctions on Russia, targeting individuals and entities responsible for violating the sovereignty and territorial integrity of Ukraine. These sanctions include:

• Restrictions on the travel of certain individuals and officials.
• Targeted sanctions on six of Russia's largest banks and four energy companies.
• Suspension of credit finance that encourages exports to Russia and financing for economic development projects in the country.
• Prohibition of the provision, exportation, or re-exportation of goods, services, or technology in support of exploration or production for deepwater, Arctic offshore, or shale projects that have the potential to produce oil in Russia.
• Sanctions on individuals and entities determined to be responsible for or complicit in malicious cyber-enabled activities that threaten the national security, foreign policy, economic health, or financial stability of the US.
• Sanctions on individuals involved in the poisoning of Aleksey Navalny.
• Sanctions on entities supporting Russia's malign activities in Africa.
• Sanctions on entities involved in the development of Russia's future energy, metals, and mining production and export capacity.
• Sanctions on foreign financial institutions that support Russia's war economy.
• Restrictions on the Russian military-industrial base's access to certain US software and information technology services.
• Sanctions on entities involved in Russia's liquefied natural gas projects.
• Sanctions on entities procuring sensitive and critical items such as materials for Russia's chemical and biological weapons program.
• Sanctions on entities laundering gold for a designated Russian gold producer.
• Sanctions on entities supporting Russia's production of unmanned aerial vehicles (UAVs).
• Sanctions on entities involved in sanctions evasion, circumvention, and backfill activities.
• Sanctions on entities operating in Russia's domestic war economy, including companies in the defense, manufacturing, technology, transportation, and financial services sectors.
• Sanctions on entities supplying the Russian defense industry with foreign-made electronic components and materials used in the production of UAVs.
• Sanctions on entities providing support for Kremlin-directed malign influence efforts and disinformation campaigns.
• Sanctions on individuals and entities responsible for tampering, altering, or causing the misappropriation of information with the purpose or effect of interfering with or undermining election processes or institutions.

Russia's response to sanctions

In response to sanctions during the 2022 invasion of Ukraine, Russia developed an unfriendly countries list. Copyright infringement is authorized for Russian citizens against any country on the list. The Russian Association for Electronic Communications projects that online piracy in Russia will likely double in 2023.

In May 2022, Russia changed the law to allow it to override an IP owner's wishes and permit the importation of certain designated categories of goods. This would allow the government to mitigate supply shortages of certain branded goods.

In addition, Russian President Vladimir Putin signed a decree imposing retaliatory economic measures in response to actions by "unfriendly countries." The decree prohibits state authorities at all levels, as well as organizations and individuals under Russian jurisdiction, from making transactions with sanctioned individuals and entities. It also bans the export of raw materials or products mined or produced in Russia if their end users are sanctioned entities or individuals.

The sanctions and Russia's response have caused the state's role in the Russian economy to grow stronger and accelerated efforts to shift Russia's foreign economic relations away from the West and toward Asia.

Russia's IP laws

Russia provides IP protection for copyrights, trademarks, company intellectual assets, computer programs, and databases. Copyright protection is granted for 70 years to nationals who have created literature, works of art, or scientific work. Both public and unreleased work is protected and includes oral creations, interviews, and speeches. However, laws, folklore, administrative texts, and official documents are not subject to copyright in Russia.

Russia's Patent Law protects the use of utility models and industrial property. Several types of patents can be protected, including those related to inventions, new methods with industrial applicability, products with innovative forms, and utility models with industrial applicability. Patents must be acknowledged by Rospatent, Russia's national Intellectual Property Office, and the protection duration depends on the type of patent. Inventions are protected for 20 years and can be renewed for another 5, while utility models are protected for 10 years without the option to renew.

Trademark protection in Russia is based on a first-come, first-served basis, and any sign, number, colour, or combination can be used. After registration, the owner must start using the trademark within a maximum of 3 years; otherwise, it will be revoked. The protection of a trademark is guaranteed for 10 years and can be renewed for the same duration with no limit on the number of renewals.

In response to sanctions during the 2022 Ukraine invasion, Russia took the unprecedented step of suspending IP rights from "unfriendly countries", effectively legalising intellectual piracy. This means Russian companies are no longer obliged to compensate owners of patents, utility models, and industrial designs from these countries, and affected companies cannot enforce their IP rights in Russia. This move is a reaction to Western economic sanctions and the withdrawal of many multinational companies from the Russian market.

US companies' enforcement of IP rights in Russia

US companies can obtain, maintain and enforce IP rights in Russia, despite US sanctions. However, there are several key issues facing US companies in Russia with regards to their IP rights. Firstly, while there is no US prohibition on making payments to the Russian IPO itself, there is a practical hurdle to pursuing and maintaining IP rights in Russia relating to the chain of payment. The question is whether payment of fees and costs can be made to Russian associates to do such work due to sanctions against certain banks and the removal of many Russian banks from the SWIFT global financial system.

Secondly, Russia has taken steps to encourage and allow IP to be used by third parties without compensation to or permission from the IP owner, to counter international sanctions and fill the void left by Western companies pulling out of the country. For example, in a decree on March 6, 2022, Russia announced it would allow the unpaid and unapproved use of patented inventions, utility models and industrial designs from "unfriendly" countries, including the US. On March 30, 2022, the Russian Prime Minister signed a law that made it legal to import grey market goods without proving the legitimacy of the products or obtaining the authorization of the trademark owner.

Thirdly, there has been a flurry of trademark applications filed by Russians for well-known marks, including McDonald's, Coca-Cola, and Nike. While Rospatent has indicated that these applications have only been published in the official gazette, not registered, and implied that any that are confusingly similar to previously registered marks would be refused, such pronouncements seem disingenuous in light of the Russian government's recent actions.

To protect their IP in Russia, US companies should take proactive steps including registering their trademarks with the Federal Service for Intellectual Property (Rospatent) and having patents recorded in the Russian Federal Customs Service's IP Register. It is also vital that companies understand that intellectual property is primarily a private right and that the US government generally cannot enforce rights on behalf of private individuals in Russia.

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