Full version of article (in Russian): http://www.garant.ru/article/1109089/

The effective civil legislation provides for several cases when legally published works can be used without the rightholder’s consent and without paying remuneration. One of them is citation for informational, educational, scientific or cultural purposes (Subclause 1 Clause 1 Article 1274 of the Russian Civil Code). But can photos used in the text being cited be used in a similar way? Let us see how courts which examined a rightholder’s claim against the defendant using the plaintiff’s photos without consent but specifying the authorship, responded to this question.

Expert opinion

The expert community gave positive assessment for a decision adopted by the Russian Supreme Court. “Courts acknowledging the possibility to cite only texts actually meant limitation on disseminating ideas expressed in any form other than verbal, which contradicts Article 29 of the Russian Constitution,” says Managing Partner of IMLEX.PRO Artur Mochalov. Such decisions contradicted the position of the European Court of Human Rights (ECHR) which repeatedly specified that freedom of expression covers all possible ways of disseminating views and ideas, including by means of photoart (ECHR’s resolution on case of News Verlags GmbH and Co. KG v. Austria and others),” the expert notes.

“The said ruling of the Russian Supreme Court is useful both for the rightholders themselves who can increase their popularity by means of their works being cited and for the Internet users,” head of group for legal support of advertising and information activity at 2GIS Elena Yanina believes. “If the court had prohibited citing photos, users would have had to read abstract comments to something that cannot be readily seen. The decision made gives them access to more useful content,” Elena explains.

“At the same time, the Court’s position is also aimed at protecting authors against uncontrolled use of their works,” head of Intellectual Property practice, Partner at international law firm CMS, Russia Anton Bankovskiy emphasizes. “In the course of examining such cases the principle of “the end justifies the means” will work. Citation will be acknowledged lawful only given the possibility to prove non-commercial purposes of publishing a work and reasonable scope of citation. Also, one should keep in mind that citation is allowed only if the photo became available to the public on lawful grounds. Therefore, in the event of failure to observe rather strict terms and conditions of citation, the author will not be left without his lawful remuneration,” the expert assures.

“At the same time, problems can arise when establishing a justified scope of citation in practice,” Senior Associate of Intellectual Property practice at Capital Legal Services Elena Berger believes. For example, it is not established whether citation is allowed in an analytical review of all images from any conditional collection of photos, or only for a part of such collection. “It’s obvious that boundaries of citation exist; however, establishing them for citing images is much more complicated than for text, and approach by analogy is likely not always applicable,” the expert believes. “This provided, until detailed rules for citation of images are established, we recommend obtaining the photo author’s consent prior to using the photo. Often, it is much easier to obtain such consent than incur the risk of litigation.”

It should be noted that disputes on legality of citing images occur not only in Russia. Managing Partner at AK Avocats Valery Kozhevnikov notes that the French law enforcement practice, for instance, proceeds from the fact that although the law does not directly provide for the possibility to cite images, this is allowed subject to observing other terms and conditions of citation.

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And still, there is no guarantee that the court practice in similar cases will become uniform due to adoption of the said ruling of the Russian Supreme Court, as sometimes not just different courts but a single court can adopt contradicting decisions. For instance, the Ninth Commercial Arbitration Court of Appeal which specified in a decision on a case being examined the possibility to cite only texts and statements, in its other decision noted the absence of legislative restrictions connected with the type of intellectual property which can be cited and did not exclude the possibility to cite photos (Resolution No.09AP-56896/15 dated January 19, 2016).