Proprietor of an informational resource, an information system, a tool of their providing — a person, exercising the ownership, having at his disposal in full of the mentioned objects;
Possessor of an information resource, an information system and means of their providing — a person, exercising the disposal to the degree determined by the law;
User (consumer) of information — a person referring to an information system or an intermediary in order to receive necessary information and to use it (art.2 of the Federal Act).
received from of an information system comes into legal force upon its signing by an official according to the procedure established by the Russian Federation legislation.
However today there are no rules of the document’s authorization or a fixation which according to art.5 it must be executed according to the order established by the authorities, responsible for office work organization, standardization of docu ments, safety of the Russian Federation1.
— Part 3 art.5 of the Act on information recognizes electronic digital signature as a tool which serves as the evidence of a legal power of a document, deposited and transferred through an automatic and telecommunication systems. But this rule is not valid for current judicial practice related to Internet, because up to date the precedents are concerned the creation and the use of the informational re sources without using of electronic digital signature2.
Nevertheless, the Act on information contains an important rule, defining the conception of documented information: «Documented information (document) is the one, fixed on a material repository with the requisites allowing its identifica tion» (art.2).
Since there is no legislative regulation of rules for documents3, we can con clude, that if an information is put on a material repository (Internet server) and There is a number of subordinate legislative acts governing the problems of elec tronic documents transmission, but they are addressed to the limited group of subjects, specializing in certain fields of economy. For example, Regulations of the Central Bank of RF N20 p of 12.03.98 «On the Rules of Electronic Documents Exchange Be tween Bank of Russia, Credit Companies (Affiliated Organizations) and Other Clients Of Bank of Russia While Executing Payments Through the Network of Accounts of Bank of Russia» (amended by the Central Bank RF Direction N774 u of 11.04.2000).
State Standard N6.10.4 84 «Legalization of Documents, Drawn up on a Machine Re pository or a Machienegram and Drawn Up By Computer» (constituted on 01.07.by Decree of 09.10.84 of the USSR State Committee of standards), which «establishes the requirements to the bodies and the contents of the requisite, legalizing a docu ment, drawn up on a machinery repository or a machienegram and those drawn up by computer, as well as the procedure of their alteration» (par.1).
Concerning the electronic digital signature, there is a substantial number of acts regulating its commercial use or giving recommendations on the topic. For example, there can be mentioned Letter of the Supreme Arbitration Court of the Russian Feder ation NC1 07/op 587 of 19.08.94 «Some Recommendations, Affirmed at the Confer ence Dedicated to Legal Arbitration Practice», Letter of the Supreme Arbitration Court of the Russian Federation NC1 7/oz 316 of 07.06.95. Besides the Government submitted to State Duma of RF the draft legislation N 78684 3 «On Electronic Digital Signature», which was enacted at the first hearing on 06.07.2001.
The Standard mentions that it is «mandatory for every enterprise, company and institute (hereinafter — companies), executing an information exchange through the documents, drawn up on a machinery repository or machienegram» (par.2) and its par.1.5 and 2.1 contain the mandatory requisites and a special guiding letter as the can be synonymously identified by the addressing system, the information may be considered as a category of the documented one, in the same way, information re sources in Internet (sites, pages, servers) can be considered as the source of docu mented information.
Code of Arbitration Procedure of the Russian Federation confirms, taking into account the principle of evidence admissibility, a possibility to use data, docu ments and materials, received «by fax, electronic or another kind of communica tions» and classifies them as written evidence (part.1 art.60 CAP of RF). Besides, the Code stressed the point, that court’s ability to be sure the presented docu ments are reliable – is the basic criteria of their admissibility.
The basic rule of art.60 CAP of RF is added by Instructive Decree NE 1 4 of 29.07.1979 of the USSR State Arbitration «On the use of documents, drawn up by computer as an evidence in arbitration proceeding» (Instructive Decree) is effec tive to the present time; it clarifies that parties in the arbitration have the right to present documents prepared by a computer as an evidence before the Arbitration Court. Those documents must be considered by the Arbitration Court as a written evidence if they contain the data, material to the case (p.1).
The Instructive Decree clarifies, that data, contained in their technical reposi tory, can be introduced as evidence only after their transformation into a form, suitable for common comprehension and operation as an evidence (p.9), plus it must bear an indication on what time and what computer center they were made (p.4).1 As the Arbitrations Courts, Plenum of the USSR Supreme Court gave the similar interpretation in Resolution N3 of 03.04.1987 «About the exact adherence to the law practice in civil justice»:
«If it is necessary, the Court can admit as a written evidence documents ob tained from a computer. Taking into account opinions of persons in case the court can examine presented audio and video records. Those materials shall be ap praised along with other evidence».
Concerning the presentation of evidences received with the help of informa tion technologies and, Internet in particular, there exists one more theoretical problem: written evidence is introduced in original or in a form of a legalized copy, but, as was mentioned above, an information on the screen before eyes of user is not identical to one placed at Internet. Moreover, during printing out of the screen standards for a document, drawn up on a machinery repository or machienegram, the Standard is addressed to the owners and possessors of the information resources only («companies — the document’s creators») and documentation exchange between them, but it lacks a legal order of legalization of documents obtained from Internet.
We should take into account, that during the elaboration and enactment of the In struction Decree an access to computers and telecommunications for commercial pur poses was extremely limited that is why a resort to the computer centers was necessary.
Today everyone can receive an access to information technologies, therefore we should give a broad interpretation of p.4 about the entities referred to as computer centers.
content1 of a browser program the information on the date of printing out and the resource’s address are added.
Therefore, a copy printed on a sheet of paper and reliably indicating the con tent of an Internet page is not a copy in the full meaning of the word.
Besides that, according to p.1 of the Instructive Decree, one must present the first copy to the court, if the original is material for the case. According to literal interpretation of this rule although in conflict with common sense, a server con taining the file ought to be introduced before the Court for examination2.
It would be wrong to state, the problem described above is material for legal practice, but it’s necessary to take into account, when examining the evidence, that «copy» in such a situation has another meaning, different, for instance, from a copy of «paper document», made by copying machine.
Despite an objective difficulty of judicial investigation of facts involving use of Internet, the absence of a proper legislative regulation of electronic documenta tion exchange and actual jurisdiction of offering the evidences obtained from In ternet and their assess by parties and the court, all the mentioned problems show a certain progress in Russia.
Table 3 presents information on materials and evidences examined in the judi cial proceedings over disputes on violation of rights to objects of intellectual prop erty at Internet.
As it will be shown below in table 3, the materials received in such a way were in troduced as an evidence in all the proceedings related to the use of Internet.
There was introduced a curious, but debatable solution to the problem at issue in art.11 «Originals and copies of electronic document» of the Act «On Electronic Trade» enacted by State Duma at the first reading on 06.08.2001: «Every copy of an electronic document, signed by an electronic digital signature in order, established by the Federal legislation, are recognized as an original. An electronic document can not have any copies in an electronic form.
The copies of an electronic document can be printed as a paper document and au thorized by the signature of an authorized person. The copies of an electronic document, printed on a paper repository must meet legal requirements and the state standards».
Another solution was presented by State Standard 6.10.4 84, where the categories of original, duplicate and a copy of a document on a machine repository were introduced:
«Original of a document on a machine repository — is the first record of a docu ment on a machine repository, containing the indication of its origin.
Original of a machienegram — is the first copy printed out of a computer on a pa per repository, containing the indication of its origin.
Duplicates of a document on a machine repository — are all the further printings with synonymous content and bearing the indication that they are duplicates.
Duplicates of a machienegram — are all the further printings with synonymous contents bearing the indication that they are duplicates.
Copies of a document on a machine repository or a machienegram — are the doc uments, rewritten to another repository of information from the original or a duplicate of a document on a machine repository or a machienegram with synonymous content bearing an indication that they are the copies» (p.3.2 3.4).
Table 3. The materials and evidences examined in the judicial proceedings over disputes on violation of rights to objects of intellectual property at Internet.
№ of the case The parties The materials and the evidence examined in the judicial proceedings A40-22492/99-15323 Cinema concern "Mosfilm" An extract from the domain names data base maintained by the plaintiff as an entitled Registrar of vs. SC "RosNIIROS" Russian national domain.RU A40-25314/99-15-271 "Eastman Kodak Company" Corp. An extract from the domain names data base maintained by the third party - SC "RosNIIROS" - as vs. entrepreneur A. Grundul A., the an entitled Registrar of Russian national domain.RU, the Regulations of SC "RosNIIROS" for third Party SC "RosNIIROS".RU level domain names registration, printings of the defendant s site pages, proofs of the plaintiff s authority A40-46846/99-83-491 "Kodak O.O.O." An extract from the domain names data base maintained by SC "RosNIIROS", entitled Registrar vs. SC "RosNIIROS", the third party of Russian national domain.RU, Regulations of SC "RosNIIROS" for.RU level domain names entrepreneur A. Grundul, since registration, the printings of the defendant s site pages, proofs of the plaintiff s authority 04.10.2000, entrepreneur A. Grundul the defendant A40-20169/00-51-210 "Quelle AG" vs. "Tandem U. Ltd", An extract from the domain names data base maintained by SC "RosNIIROS", entitled Registrar "Guls. Ltd", the third party - SC of Russian national domain.RU, the printings of the defendant s site pages, the proofs of the "RosNIIROS" plaintiff s authority 2/101-2001 "Kamaz Co." vs. individual Popkov An extract from the domain names data base maintained by SC "RosNIIROS", entitled Registrar N.I., the third party - SC of Russian national domain.RU, Regulations of SC "RosNIIROS" for.RU level domain names "RosNIIROS" registration, printings of the defendant s site pages, proofs of the plaintiff s authority A40-45003/99-51-443 "Promo- RU. Ltd" vs. A printing of the plaintiff s site pages, the copyright contract, the articles, published in mass "Poznavatelnaja Kniga Plus. Ltd" media, the materials, offered by the hosting provider of the plaintiff s site, printings of the database content of searching system "Aport" (http://www.aport.ru) individual Sorokin V.G. and the Copies of the defendant s site pages, materials an expert examination, plead for by the plaintiff and Company of the Public Organization appointed by the Notary, the certificates of registration, the testimonies, a copyright contract, the "Ad marginem" vs. individual book "A blue lard" Chernov A.A.
A56-582/00 "Silmarill Ltd" vs. "Softland.Ltd" Paper copies of the defendant s site pages, the record of the visual examination of written evidence executed by the Notary at the plaintiff s request, where the content of the page of the defendant s site was included, printings of the texts of computer programs, the copyrights to which were contested, the copyright contracts, the employer s instructions to program s developers, certificates of registration, the testimonies, the certificates of the computer program s registration Окончание табл. 3.
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