Who said Russia doesn’t enforce IP rights?

Alexander Ponosov is a teacher in a small Russian village who was prosecuted for violating Microsoft’s intellectual property rights by installing illegal versions of Windows operating system and Word software (see Balazs Bodo’s post here). Ponosov claimed to his defense that the 12 new computers at issue were delivered already with the unlicensed software installed.

The case had stirred some public debate which enticed former and present Russian leaders to comment and take sides. President Vladimir Putin has called the trial “utter nonsense” and former leader Mikhail Gorbachev urged Bill Gates to leave the teacher alone. In the end, a lower court has acquitted Ponosov, calling the charges “trivial.” But this was not the really the end, apparently. As the BBC reports, the prosecution’s successful appeal to a higher court has brought the case back to life.

One interesting aspect is the position of Microsoft. Smartly enough, the company has distanced itself from the proceedings against Ponosov, realizing the likelihood to receive a lot of bad press. Supporting the teacher openly would be out of the question, but applauding the zealous Russian prosecutors would be equally unwise, as it would depict Microsoft in a rather unattractive light. So Redmond keeps a low profile and doesn’t even consider bringing civil claims against the guy.

This dynamic is strange and quite troublesome. Enforcing copyright against an educator working for a school with 380 pupils located in the village of Sepych deep in the Urals is not in the best interest of the rightholder. Nor is it in the best interest of the public, especially the school and its pupils that might not be able to afford purchasing licenses for multiple computers. So why do the Russian authorities insist on further hassling the teacher? Perhaps the answer should be sought far away from the Ural mountains. The U.S. Government has recently threatened Russia with trade sanctions and meager chances to join the WTO if the country did not reform its copyright enforcement policy. The impetus for pursuing the teacher in a highly publicized criminal proceeding signals to the world that Russia does not deserve its ranking at the top of the black list of world piracy nations. This could be one possible reaction to exercising political pressure driving countries to formally adopt strong IP laws that might not fit their level of technological and economic development via bilateral, regional and multinational agreements. It equally applies to political pressure backed with threats of “informal” trade sanctions.

In the case of Ponosov, if the international pressure born fruits and copyright were rigorously enforced, everyone would stand to lose. But if Russia had the equivalent of fair use defense in its copyright law, would it excuse the infringement charges? I am not an expert on fair use law, but it seems to me that the teacher might have a chance there. The purpose of the use should fall somewhere under “teaching (including multiple copies for classroom use), scholarship, or research.” As to the first fair use factor, the purpose and character of use is educational and noncommercial. As to the second factor, the nature of the work (i.e., computer program) is, at least to a significant degree, functional rather than original. As to the third factor, the works are copied in whole (which is the only factor that clearly weights against the teacher). Fourth, the effect of the use on the market to Windows OS and Word software seems negligent. Could fair use analysis save Ponosov from spending time in Siberia?

This reminds me of a post I’ve read a while ago on the Patry Copyright Blog concerning the forthcoming overhaul in Israel’s copyright law. The bill of July 2005 articulates a provision that is very similar to Section 107 of the U.S. Copyright Act. Actually, the proposed Section 19(b) looks very much like a translation of the four-factor of fair use to Hebrew. But the International Intellectual Property Alliance did not like it. The IIPA, despite it’s somewhat misleading name, is a U.S. trade-oriented body that monitors the behavior of foreign states with respect IP protection. It “works closely with the U.S. Trade Representative in the annual ‘Special 301’ reviews on whether acts, policies or practices of any foreign country deny adequate and effective protection of intellectual property rights or fair and equitable market access for U.S. persons relying on intellectual property protection.”

So the IIPA was not happy, not even flattered by the Israeli fair use provision in its current form. The interesting part is its reasoning:

We understand there may already be agreement to adopt the draft, and we register our concern that the result of this change could result in considerable case law interpretation in Israel on “fair dealing” being thrown out in favor of as yet undeveloped factors in Section 19(b). By contrast, in markets like the U.S., which employ very similar factors to those set out in proposed Section 19(b), many years of jurisprudence have provided society with considerable clarity on the boundaries of “fair use.” There is a significant risk that in Israel the adoption of these factors at this time might be viewed by the community as a free ticket to copy. This would have disastrous consequences, and thus we urge the Israeli government to re-examine the introduction of these factors, rather than relying on Section 19(a), which sets out the long-established “fair dealing” principle...

In other words, foreign courts in a jurisdiction which lacks fair use tradition are likely not to be able to provide society with the “considerable clarity on the boundaries of ‘fair use’” as U.S. courts so very often do. William Patry seems to think this is rather silly, and I humbly join his observation.