Article 146 of the Criminal Code of the Russian Federation, old code

Article 146. Infringement of copyright and related rights

ST 146 of the Criminal Code of the Russian Federation.
1. Assignment of authorship (plagiarism), if this act caused major damage to the author or other copyright holder, is punishable by a fine in the amount of up to two hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by compulsory labor for a term of up to four hundred eighty hours, or correctional labor for up to one year, or arrest for up to six months. 2. Illegal use of objects of copyright or related rights, as well as the acquisition, storage, transportation of counterfeit copies of works or phonograms for the purpose of sale, committed on a large scale, is punishable by 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 a period of up to eighteen months, or by compulsory labor for a term of up to four hundred eighty hours, or by correctional labor for a term of up to two years, or by forced labor for a term of up to two years, or by imprisonment for the same term. 3. The acts provided for in part two of this article, if they are committed: a) have become invalid; b) by a group of persons by prior conspiracy or an organized group; c) on an especially large scale; d) by a person using his official position - shall be punishable by forced labor for a term of up to five years, or by imprisonment 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 wages or other income of the convicted person for a period of up to three years. such. Note. The acts provided for in this article are recognized as committed on a large scale if the cost of copies of works or phonograms or the value of the rights to use objects of copyright and related rights exceeds one hundred thousand rubles, and in an especially large amount - one million rubles. 1. Most of the elements of this crime are disclosed in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 26, 2007.

So, after all, is it a counterfeit or a trophy? (Part 2 of Article 146 of the Criminal Code of the Russian Federation)

From the speech in the debate: About the charge brought under Part 2 of Art. 146 of the Criminal Code of the Russian Federation The charge is absurd, not subject to unambiguous interpretation and, due to its uncertainty, initially violates the defendant’s right to defense, since it does not allow one to object to it using the laws of logic and common sense.

During the preliminary investigation and during the trial, the defense repeatedly stated that the charges were incomprehensible to them and required clarifications, but the prosecution avoided them without clear argumentation.

Taking as an axiom the rationality of the system of Russian criminal law and process, the defense proceeds from the fact that the norms in the Criminal Code are not located chaotically and unsystematically, but are clearly structured according to the main object of the attack, which determines the location of the norm in a certain section and chapter of the Criminal Code of the Russian Federation.

Literal or semantic interpretation of Part 2 of Art. 146 of the Criminal Code of the Russian Federation, as well as its positioning in the structure of the Special Part of the Criminal Code of the Russian Federation, allows us to unambiguously draw the following conclusions:

- it refers to Chapter 19. Crimes against the constitutional rights and freedoms of man and citizen because it is located in it.

Why is it important?

Because the position of the victims is based on the assertion that ownership of objects of copyright - computer programs - is protected as the author’s right to a literary work. (Article 1259 of the Civil Code of the Russian Federation Objects of copyright.)

How is the author's right to a literary work protected?

Article 1257 of the Civil Code of the Russian Federation. Author of the work

The author of a work of science , literature or art is recognized as the citizen whose creative work created it. The person indicated as the author on the original or copy of the work or otherwise in accordance with paragraph 1 of Article 1300 of this Code is considered its author, unless otherwise proven. Who is this citizen, whose intellectual work created this computer program, which is protected as literary work and whose constitutional rights are violated?

No answer!

To the reasoning of the representatives of the victims that at the location of the legal entities - the victims, some foreign laws are in force, which somehow regulate the relations between the exploiters and the exploited and the results of the labor of the latter become the property of the former, I can object with a quote, demonstrating, at the same time, work are protected: “- All this is fiction, there is no Rio de Janeiro , and there is no America , and there Europe , there is nothing. And in general, the last city is Shepetivka, on which the waves of the Atlantic Ocean crash.” © Ilf and Petrov I believe that references to laws or treaties that result in the transfer of rights to objects of intellectual activity should be specified, since they may contradict international treaties and the national legislation of the Russian Federation.

This is required at least in order to protect the author of the computer program, whose intellect created the object of copyright, as a literary work, since the author of such is presumed to be the individual indicated on the cover (copy) of the material carrier of the object of copyright.

On the distribution kits of computer programs examined during the judicial investigation, the names, surnames, and pseudonyms of the authors - citizens - were not found.

We can only speculate about the content of the law, the terms of the contract, the scope of transferred rights, conditions of use and other aspects of the so-called. copyright holder.

Further more.

Foreign corporations that have identified themselves as copyright holders are not registered on the territory of the Russian Federation as business entities and, therefore, independently, in their own name, cannot sell goods on the Russian market.

Federal Law N 160-FZ “On Foreign Investments in the Russian Federation” dated July 9, 1999 For the purposes of this Federal Law, the following basic concepts are used:

foreign investor - a foreign legal entity whose civil legal capacity is determined in accordance with the legislation of the state in which it is established and which has the right, in accordance with the legislation of the said state, to make investments on the territory of the Russian Federation...

foreign investment - the investment of foreign capital in an object of entrepreneurial activity on the territory of the Russian Federation in the form of objects of civil rights owned by a foreign investor, if such objects of civil rights are not withdrawn from circulation or are not limited in circulation in the Russian Federation in accordance with federal laws, including ... having a monetary value of exclusive rights to the results of intellectual activity (intellectual property), ...

total tax burden - the estimated total amount of money payable in the form of federal taxes (except for excise taxes, value added tax on goods produced on the territory of the Russian Federation) and contributions to state extra-budgetary funds (except for contributions to the Pension Fund of the Russian Federation) a foreign investor and a commercial organization with foreign investments implementing an investment project at the expense of foreign investments, at the time of the start of financing the investment project.

Article 4. Legal regime for the activities of foreign investors and commercial organizations with foreign investments

3. A foreign legal entity, the purpose of creation and (or) whose activities are of a commercial nature and which bears property liability for the obligations assumed by it in connection with the implementation of the specified activities on the territory of the Russian Federation (hereinafter referred to as the foreign legal entity), has the right to carry out activities on the territory of the Russian Federation through a branch or representative office from the date of their accreditation, unless otherwise established by federal laws. A foreign legal entity ceases to operate on the territory of the Russian Federation through a branch or representative office from the date of termination of the accreditation of the branch or representative office.

The day of accreditation of a branch, representative office of a foreign legal entity or making changes to the information contained in the state register of accredited branches, representative offices of foreign legal entities, which is an information system (hereinafter also referred to as the register), or termination of the accreditation of a branch, representative office of a foreign legal entity is the day of entry of the corresponding entries in the registry. Representatives of the victims Microsoft, AutoDeck and Korel testified that his clients are not engaged in retail trade and the cost they declared for a “boxed” copy of the program distribution kit is approximate.

The product is sold through a network of authorized distributors, who, in the form of “boxed” copies, sell small wholesale to any trading enterprise, and those, in turn, to the end consumer.

I believe that such an interpretation is banal and does not reveal the essence of actions that have legal significance.

Since the object of copyright is separated from the material medium, inspiration is not for sale, but you can sell the manuscript. © A.S. Pushkin (Article 1227 of the Civil Code of the Russian Federation Intellectual rights and property rights)

Retail trade in “boxed” copies of programs has two aspects:

1. The right to the copyrighted object must pass to the retailer, because only the copyright holder has the right to use it;

2. Materials, overhead costs and margins belong to the retailer and only he has the right to set retail prices.

This axiom gives rise to two legally significant questions:

1. Who is the copyright holder in controversial legal relations and the victim in a criminal case?

2. What is the price in national monetary units of a copy of the program on a tangible medium in the Ural region, taking into account that representatives of the victims provided recommended prices for the products.

Thus, no direct (real) material damage was caused to the victims, since they received money from distributors, and those from small wholesale sellers. clause 24 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 26, 2007 N 14 (for example, from the presence and amount of actual damage, the amount of lost profits, the amount of income received by a person as a result of violation of rights to the results of intellectual activity or to means of individualization). However, given the absence on the territory of the Russian Federation of victims, their branches and representative offices accredited in accordance with Federal Law dated 07/09/1999 N 160-FZ (as amended on 05/05/2014) “On foreign investments in the Russian Federation”, and as a consequence, their inability to legally to sell goods at retail in material form, it can be argued that the copyright holders are certain Russian legal entities that have become copyright holders on the basis of licensing agreements (licensees) or in another way.

Thus, the victims ceded their right to use the copyrighted object to distributors, and they, in turn, to retailers, as well as the author (authors) - individuals ceded it to them, since, within the meaning of Art. 146 of the Criminal Code of the Russian Federation and Article 1228 of the Civil Code of the Russian Federation, only the latter are the authors: Author of the result of intellectual activity

1. The author of the result of intellectual activity is the citizen whose creative work created such a result. The charge brought against the defendant, as far as can be judged from the text that insults the Great and Mighty Russian language, allows us to conclude that the charge qualifies his actions under Part 2 of Art. 146 of the Criminal Code of the Russian Federation.

The second part contains two independent compositions:

Illegal use of copyright or related rights,

a equal and - (conjunction) Used when attaching a homogeneous member of a sentence or part of a sentence, compared with the previous ones as equivalent, equivalent (sometimes strengthening or delimiting each of them from the other), corresponding in meaning to the words: as and, just as and. (The modern explanatory dictionary of the Russian language, edited by T.F. Efremova, is the most complete among existing explanatory dictionaries in terms of the volume of the dictionary.)

acquisition, storage, transportation of counterfeit copies of works or phonograms for sales purposes, committed on a large scale, —

If the illegal use of copyrighted objects clearly requires an examination of its value, since the amount of copyright cannot be directly assessed in ruble equivalent, because is intangible, then the acquisition and storage of counterfeit copies of works is the only thing that can be “stretched by the ears” to the situation under study and is subject to such an assessment.

Determination of the size of the committed act, which is a constituent element, since criminal liability is provided only for large and especially large amounts.

Note. The acts provided for in this article are recognized as committed on a large scale if the cost of copies of works or phonograms or the value of the rights to use objects of copyright and related rights exceeds one hundred thousand rubles, and in an especially large amount - one million rubles.

The practice of the Supreme Court of the Russian Federation proceeds from the fact that the acquisition and storage of counterfeit copies of works for sales purposes, committed on a large scale, can be established based on

from the retail value of original (licensed) copies of works or phonograms at the time of the commission of the crime, based on their quantity, including copies of works or phonograms belonging to different copyright holders. (PVS of the Russian Federation dated April 26, 2007 N 14)

A computer program, as an object of copyright (a means of individualization), is intangible, but, being presented in the material form of a “boxed version”, it is a product with a very specific retail price, which the representatives of the victim call as “damage”.

The materials of the criminal case do not contain information about the retail cost of a copy of the computer programs mentioned in the indictment and, given that the final copyright holder of the copyright object has not been documented, I believe that the large size of the “violated right” cannot be considered proven, especially since the only Autodesk AutoCAD 2011 program. The Russian version is completely absent from the presented price list and on the official website of the corporation. Its cost was determined by representative Zorin by analogy with the 2015 programs...

At the same time, he stated that the cost of a copy of the program includes updating it and training the end user to use it.

The assertion that an old program, like old wine, retains its value, requires additional justification from a specialist - a marketer, which the representative of the victim is not.

Thus, it is not possible to establish in the indictment what “large size” refers to – the value of the copyrighted object or the cost of the copy in retail trade and whether it is large.

About the charge brought under Part 1 of Art. 273 of the Criminal Code of the Russian Federation

The open date of the period in which the crime was committed, according to the indictment, makes it absurd, since it includes the period of validity of the previous edition of the Criminal Code of the Russian Federation and does not include means of neutralizing means of protecting computer information. Article 273. Creation, use and distribution of malicious computer programs

1. Creation, distribution or use of computer programs or other computer information, knowingly intended for unauthorized destruction, blocking, modification, copying of computer information or neutralization of computer information protection means, -

shall be punishable by restriction of liberty for a term of up to four years, or forced labor for a term of up to four years, or imprisonment for the same term with a fine in the amount of up to two hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to eighteen months.

2. Acts provided for in part one of this article, committed by a group of persons by prior conspiracy or by an organized group or by a person using their official position, as well as those that caused major damage or were committed out of selfish interest, -

shall be punishable by restriction of freedom for a term of up to four years, or forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to five years with a fine of one hundred thousand to two hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of two to three years or without it and with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

3. Acts provided for in parts one or two of this article, if they entailed grave consequences or created a threat of their occurrence - Article 273. Creation, use and distribution of malicious computer programs

1. Creating computer programs or making changes to existing programs, knowingly leading to unauthorized destruction, blocking, modification or copying of information, disruption of the operation of a computer, computer system or their network, as well as the use or distribution of such programs or computer media with such programs -

shall be punishable by imprisonment for a term of up to three years with a fine in the amount of up to two hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to eighteen months.

(as amended by Federal Law dated December 8, 2003 N 162-FZ)

On approval of the Criminal Code of the RSFSR

(SZ RF, 1996, No. 1, Art. 54);_________________________________________________________________________ The Criminal Code of the RSFSR has the task of protecting the social system of the USSR, its political and economic systems, personality, rights and freedoms of citizens, all forms of property and the entire socialist legal order from criminal attacks (as amended .).To achieve this task, the Criminal Code of the RSFSR determines which socially dangerous acts are criminal and establishes penalties to be applied to persons who have committed crimes (as amended by the Decree of the Presidium of the Supreme Council of the RSFSR of December 3, 1982

- Gazette of the Supreme Soviet of the RSFSR. 1982, N 49, art. 1821).The Criminal Code of the RSFSR is based on the principles and general provisions established by the Fundamentals of the Criminal Legislation of the USSR and Union Republics. All-Union laws on criminal liability for state crimes and military crimes, as well as all-Union laws defining liability for other crimes directed against the interests of the USSR are included in this Code. Until all-Union criminal laws are included in the Criminal Code of the RSFSR, they are applied directly on the territory of the RSFSR. The general part of the Code applies both to the acts specified in this Code and to acts for which liability is provided for by all-Union laws that have not yet been included in this Code. Criminal liability and only a person guilty of committing a crime is subject to punishment, that is, who has intentionally or through negligence committed a socially dangerous act provided for by criminal law. No one can be found guilty of committing a crime, or subjected to criminal punishment except by a court verdict and in accordance with the law (edited)

Decree of the Presidium of the Supreme Soviet of the RSFSR of December 3, 1982

Another comment on Art. 148 of the Criminal Code of the Russian Federation

1. The objective side of the crime is characterized by alternatively provided actions.

Obstruction of the activities of religious organizations should be understood as restriction of the activities of religious organizations in any form (for example, refusal to register a religious organization, closure of places and facilities intended for worship); “obstruction of religious rites” means depriving citizens of the opportunity to perform rituals dictated by their faith in any form. Use of violence or threat of its use, destruction or damage to property, etc. Criminal actions during the commission of the crime in question are qualified in conjunction with Art. 148 of the Criminal Code of the Russian Federation.

2. The specified actions must be illegal, i.e. be committed in violation of the procedure established by law (i.e. Federal Law of September 26, 1997 N 125-FZ “On Freedom of Conscience and Religious Associations”) of the procedure for state regulation of the activities of religious associations.

Article 145.1 of the Criminal Code of the Russian Federation. Non-payment of wages, pensions, scholarships, benefits and other payments

New edition of Art. 145.1 of the Criminal Code of the Russian Federation

1. Partial non-payment of wages, pensions, scholarships, allowances and other payments established by law for more than three months, committed out of mercenary or other personal interest by the head of an organization, an employer - an individual, the head of a branch, representative office or other separate structural unit of an organization -

shall be punishable by a fine in the amount of up to one hundred twenty thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to one year, or by deprivation of the right to hold certain positions or engage in certain activities for a term of up to one year, or by forced labor for a term of up to two years, or imprisonment for up to one year.

2. Complete non-payment of wages, pensions, scholarships, allowances and other payments established by law for more than two months, or payment of wages for more than two months in an amount below the minimum wage established by federal law, committed out of selfish or other personal interest by the head of the organization, the employer - an individual, head of a branch, representative office or other separate structural unit of an organization, -

shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to three years, or by forced labor for a period of up to three years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or without it, or imprisonment for a term of up to three years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without it.

Article 228 part 4 of the Criminal Code of the Russian Federation

Punishment under Art. 228, part 4 Art. 228 part 4 consists of two parts, which define liability for illegal transactions with precursors of psychotropic and narcotic drugs, committed on a large and especially large scale.

imprisonment for up to five years with a fine in the amount of 200 to 300 thousand rubles or in the amount of the income of the offender for a period of up to 9 months or without it.
restriction of freedom for up to four years;

The same acts, committed on an especially large scale or with the presence of aggravating circumstances, entail punishment:

up to five years of imprisonment with a fine of 200 to 500 thousand rubles, or in the amount of the offender’s income for a period of up to 9 months or without it, or with restriction of freedom for up to two years or without it.
up to four years of restriction of freedom;

Sources

Conformity assessment methods No. 8 2013; Standards and quality - M., 2013. - 671 p.
You are a land user. Rights, obligations, conditions, benefits. - M.: AST, 2004. - 352 p.
Georgy Borisovich Romanovsky Biomedical law in Russia and abroad; Prospect - M., 2002. - 280 p.
Khabrieva, T. Ya. Migration law of Russia. Theory and practice: monograph. / T.Ya. Khabrieva. - M.: Jurisprudence, 2008. - 206 p.
A set of reviews from departments... to legitimize changes to the Code of Laws / Absent. - Moscow: Lights, 2002. - 139 p.

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