"Russian gaming: Resources of self-regulation of the industry " - September, the 8th. Chamber of Commerce and Industry.
The statement of a Gaming Business Association.
A" Russian Gaming : Resources of self-regulation of the industry” conference is to be held in Moscow on September, 8th, 2005. Organizers of the given action have declared the program which, in our opinion, should unite big operators and manufacturers of gaming equipment in struggle for "cleanliness of the industry ". A number of the theses which have been put forward by organizers of the conference, seems to us rather disputable and requires separate comments. According to a normative document of the Federal Law from 27.12.2002 ¹ 184-FL" About technical regulation " which sphere of action is directed on acceptance, application and execution, both obligatory, and voluntary requirements to production, processes of manufacture, operation, realization, performance of works or rendering of the services, one of mechanisms of regulation is a mode of certification, both voluntary, and obligatory.
Section 20 of the Law 184-FL, dedicated to forms of endorsement of conformity in part 2 defines, that voluntary endorsement of conformity is carried out in the form of voluntary certification. In turn part 3 page 20 establishes, that obligatory endorsement of conformity is carried out in forms: acceptances of the declaration on conformity (declaring of conformity); obligatory certification.
The order of application of forms of obligatory endorsement of conformity is established by the Federal law "About technical regulation ". Proceeding from declared by organizers of conference purposes of carrying "the program of voluntary certification ", the given program, most likely, meet criteria of the standardization established by the given Law. So, under the page 12 standardization is carried out in particular according to principles of voluntary application of standards; the maximal account of development of standards of legitimate interests of persons concerned, maintenance of conditions for equal application of standards. Standards of the organizations, including the commercial, public, self-regulating organizations, associations of legal persons which are developed and affirm on their own, proceeding from necessity of application of these standards for perfection of manufacture and maintenance of quality of production, performance of works, rendering of services (page 13, 17) fall under documents in the field of standardization having a legal force in territory of the Russian Federation.
The project of the standard of the organization can be represented by the developer to technical committee on standardization which will organize carrying out an examination of the given project. According to results of examination of the given project the technical committee on standardization prepares the conformance which is further sent to the developer of the project of the standard.
A message declared by initiators of conference (representatives of large business in the majority) is not correct enough whereas the policy of last years carried by the state, in the opposite is directed on the introduction of the Russian Federation into WTO.
It is necessary to note, that the problem of manufacture and realization of counterfeit production has the international character as the great number of counterfeit is imported from abroad., for example, lately a number of measures on strengthening the legal responsibility for given sorts of an offence - from high penalties to imprisonment was accepted the European union. The problem of counterfeit is also burning and in connection with integration of the CIS countries and the Eurasian union, and also in connection with entering of the Russian Federation to WTO. Presence of such unstable situation in sphere of protection of intellectual property slows down a process of integration of Russia world economic. The solving of a counterfeit problem should be considered not only through a plane of the right, but also through a prism of economic attitudes. The priorities directions of activity of the state should be perfection of the current legislation, customs, in particular, as a whole – strengthening of the legal responsibility for manufacture and realization of counterfeit production, and also increase in a level of incomes of the population
Businessmen should provide protection of original production against a fake developing and perfecting of technologies, system elements of protection, identification, design of packing, etñ in their turn.
It is necessary to divide well activity of bona fide purchasers of slot machines from manufacturers of counterfeit production. So, the legal concept "the bona fide purchaser" is established by section 302 SC defining the bona fide purchaser as the person which did not know and could not know, that the purchased property has left lawful possession of the proprietor. Now the operators working on slot machines with "piracy" game programs, a priori rank to offenders while the civil legislation (section 135 SC ) presumes conscientiousness of the purchaser where the accessory (the game program) has the same fate as the main thing (slot machine), i.e. in the case when the slot machine is bought legitimately on the basis of the contract, the program established in a slot machine, by itself will not be considered counterfeit, until it is not falsified.
In the conclusion it is necessary to stress the following fact:
Now the mechanism of protection of the author's and adjacent rights is regulated by the current legislation as a whole – SC he Russian Federation, the Law of the Russian Federation from 09.07.1993 ¹ 5351-1 " About the copyright and the adjacent rights ", the law of the Russian Federation from 23.09.1992 ¹ 3520-1 " About trade marks, service marks and names of places of an origin of the goods ", the law of the Russian Federation from 23.09.1992 ¹ 3523-1 " About a right protection of programs for electronic computers and databases ". The law of the Russian Federation from 23.09.1992 ¹ 3526-1 "About a right protection of topology of integrated microchips ", CC of the Russian Federation (secction146, section 180).
At the same time, as it has noted been earlier, it is necessary to strengthen the legal responsibility for illegal use of the author's and adjacent rights, that just it is not declared by participants of conference.
Thus, the purposes of carrying out of the given action are not connected with comprehensive investigation and the solving of problems, appearing in application of the legislation on the author's and adjacent rights and directed on creation of the new mechanism of monopolization of the operators and manufacturers of the game equipment market and, allowing to supersede small and average subjects of economic activities from the market.
Legal department of ADIB