A number of provisions of the Civil Code of the Russian Federation relating to the protection of exclusive rights have been declared incompatible with the Constitution of the Russian Federation

In accordance with paragraph 3 of Article 1252 of the Civil Code of the Russian Federation, in case of violation of exclusive rights to certain types of results of intellectual activity or means of individualization, the right holder has the right to demand compensation from the infringer instead of compensation for damages. In this case, the right holder is exempted from proving the amount of losses caused to him. The amount of compensation is determined at the discretion of the court depending on the nature of the violation and other circumstances of the case, taking into account the requirements of reasonableness and fairness within the limits established by law.

The Civil Code of the Russian Federation establishes a minimum (10 thousand rubles) and a maximum (5 million rubles) amount of compensation for violation of the exclusive rights to a work of art (sub-clause 1 of Art. 1301), the object of related rights (sub-clause 1 of Art. 1311) and the trademark (sub-clause 1 of clause 4 of Art. 1515).

At the same time, according to paragraph 3 of paragraph 3 of Article 1252 of the Civil Code of the Russian Federation, if one action violates the rights to several results of intellectual activity or means of individualization, the amount of compensation is determined by the court for each illegally used result of intellectual activity or means of individualization. Thus, if the infringer sells counterfeit CDs containing several dozen musical works, the compensation established by law is subject to recovery for each musical work, since each such work is an independent result of intellectual activity. Thus, the amount of compensation may be disproportionate to the consequences of the infringement.

It should be noted that the Civil Code of the Russian Federation provides for the possibility of reducing the total amount of compensation below the established limits, but not less than 50% of the minimum amount of all compensation for violations committed, but only if the rights to the results of intellectual activity or means of individualization, violated by one action, belong to one right holder. Even as a result of this reduction, the amount of compensation may be disproportionate to the consequences of the infringement.

Based on these considerations, the Constitutional Court of the Russian Federation has recognized the provisions of the Civil Code of the Russian Federation establishing a minimum limit of compensation (sub-clause 1 of Art. 1301, sub-clause 1 of Art. 1311 and sub-clause 1 of para. 4 of Art. 1515) do not correspond to the Constitution of the Russian Federation to the extent that they do not allow the court, taking into account the actual circumstances of a particular case, to determine the total amount of compensation below the established minimum limit.

Until appropriate amendments are made to the civil legislation, the courts shall apply these provisions of the law, guided by the explanations given by the Constitutional Court of the Russian Federation, when considering lawsuits submitted in the order of subparagraph 1 of Article 1301, subparagraph 1 of Article 1311 or subparagraph 1 of paragraph 4 of Article 1515 of the Civil Code of the Russian Federation.

That is, the courts are entitled to lower the established minimum limit of compensation, if
1) the amount of compensation to be paid, calculated in accordance with the established rules, taking into account the possibility of its reduction, exceeds the amount of losses caused to the right holder many times (provided that these losses can be calculated with a reasonable degree of reliability, and their excess must be proved by the defendant) and

2) violation of exclusive rights:

• committed by an individual entrepreneur in the course of his entrepreneurial activity;
• was committed by one action on several objects of intellectual activity;
• was committed for the first time;
• was not of a rude nature;
• was not an essential part of entrepreneurial activity.

See: Resolution of the Constitutional Court of the Russian Federation of 13.12.2016 No. 28-P on the verification of the constitutionality of subparagraph 1 of Article 1301, subparagraph 1 of Article 1311 and subparagraph 1 of paragraph 4 of Article 1515 of the Civil Code of the Russian Federation in connection with the requests of the Arbitration Court of Altai Territory