Delineation of illegal export of scientific-technical information and criminal intellectual rights infringement

Titov Sergei Nikolaevich PhD in Law Docent, the department of Law, Ulyanovsk State Pedagogical University 432071, Russia, Ul'yanovskaya oblast', g. Ul'yanovsk, pl. Lenina, 4/5 s.n.titov@yandex.ru Other publications by this author

Illegal export of technologies (article 189 of the criminal code of the Russian Federation) is often associated with violation of intellectual property rights. In this regard, it is important to distinguish the relevant elements of crimes.

R., being the General Director of JSC "TSNIIMASH-Export", concluded two contracts with the "all-China import-export company of precision engineering" for the performance of numerical modeling, the results of which could be used in the creation of weapons of mass destruction.

At the end of a certain stage of work, scientific and technical reports and certificates were compiled, which, bypassing export control, that is, without issuing one-time export licenses, were passed to the Chinese side.

Between June 1998 and June 2003, the Chinese customer transferred more than three million US dollars to the contractor's transit currency account.

Some of these funds were legalized through fictitious firms and appropriated to R.

The latter was convicted under article 33 part 3, 189, article 189 part 3, article 33 part 3, 188 part 4, article 174 part 3, article 1741 part 4, article 160 part 3 of the criminal code of the Russian Federation (resolution of the Presidium of the Moscow city court of 24.07.2009 in case no. 44u-197/09).

The subject of illegal export in this case was the results of intellectual activity in the form of scientific and technical reports. Meanwhile, none of the elements of crimes in the field of intellectual property are included in the resolution. From the point of view of the current criminal legislation, this decision may be called into question.

In accordance with the Federal law of 18.07.1999 No. 183-FZ "on export control", export control is a set of measures that ensure the implementation of the procedure established by the current legislation for carrying out foreign economic activities in respect of goods, information, works, services, results of intellectual activity which can be used in the creation of weapons of mass destruction, their delivery systems, other types of weapons and military equipment, or in the preparation and (or) Commission of terrorist acts.

According to article 1 of this law, controlled goods and technologies include raw materials, materials, equipment, scientific and technical information, work, and servants, results of intellectual activity (rights to them) which, due to their characteristics and properties, can make a significant contribution to the creation of weapons of mass destruction, their means of delivery, other types of weapons and military equipment, as well as products that are particularly dangerous in the preparation and (or) Commission of terrorist acts.

Therefore, intellectual property may be subject to illegal export under article 189 of the criminal code of the Russian Federation. An example is software specially developed or modified for the use of guidance systems (item 2.4.3 of the list of equipment, materials and technologies that can be used in the creation of missile weapons and for which export control is established, approved by presidential decree No. 1005 of 08.08.2001).

The transfer of raw materials, equipment, technologies, scientific and technical information is understood as any actions that result in a foreign organization or its representatives becoming owners of these items. In contrast to exports, the transfer of these items is carried out on the territory of Russia ^[1].

Compare this with the treatment of the illegal use of the result of creativity in the resolution of Plenum of the Supreme Court of the Russian Federation dated 26.04.2007 No. 14 «About practice of consideration by courts of criminal cases about infringement author's, adjacent, inventive and patent rights and about illegal use of the trademark”: "reproduction (production of one or more copies of a work or part of it in any material form, including recording of a work or phonogram in computer memory, on a computer hard disk), sale, rental of copies of works or phonograms, public display or public performance of the work, publication of works, phonograms, performances, productions for public information by means of their transmission on radio or television (broadcast), distribution on the Internet, translation of the work, its processing, processing of the phonogram, modification of a computer program or database, and other actions performed without registration in accordance with the law of the contract or agreement.

At least in terms of transferring to a foreign person an object of intellectual property that can be used in the production of weapons of mass destruction, these crimes overlap.

Let's consider the question of whether there is competition (conflict) between these norms.

The scientific literature substantiates that the conflict and competition of criminal law norms are identical concepts that reflect the problem of choosing a norm from among several that regulate the same actual relationship ^{[2, p. 33]}.

The concept and classification of competition norms in criminal law cause discussion: whether there is competition of special rules, privileged structures ^[3] and even whether there is competition of criminal law norms in General ^{[4, p.361]}.

The scientific literature examines the competition of criminal law norms and norms of other branches: criminal Executive, civil, etc. We will focus on the issue of competition of norms within the field of criminal law. In General, we can distinguish the following types of such competition ^[5]:

informative,

temporal (chronological),

spatial,

hierarchical.

The last three types of competition are not relevant to this case, because:

a) the norms entered into force simultaneously in the original version of the criminal code of the Russian Federation, that is, on January 1, 1997;

b) the rules apply on the same territory – on the territory of the Russian criminal law;

C) all norms are included in a Special part of the criminal code of the Russian Federation, the priority between them is not fixed, therefore, they have equal legal force.

Types of meaningful competition are:

a) competition between General and special rules;

b) competition of part and whole;

C) repeated competition of General and special norms, as well as norms-part and norms-whole;

d) competition between General (special, part-norm or whole-norm) and exclusive norms.

The latter two types cannot take place between the articles on crimes in the field of intellectual property and article 189 of the criminal code of the Russian Federation, since:

a) the ratio of pairs of compositions is considered: Art. 146 and 189, 147 and 189, 180 and 189, 183 and 189 of the criminal code of the Russian Federation. Only one-stage competition is possible in each pair. The case where a person simultaneously commits several intellectual property crimes in combination with illegal exports does not apply to the subject of analysis;

b) none of the rules is exclusive.

An exceptional rule establishes an exception to the General rule. Exceptional rules can be divided into three types. The first type is characterized by regulating relations when there is no actual crime as such. The committed acts are either socially useful, or do not pose a public danger, or do not have a subject, a subjective side of the crime, so there is no crime. These include the norms of the criminal code provided for part 2 of article 14, part 3 of article 20, part 2 and 4 of article 31, article 37-42; notes to article 308, 316, 322.

The second type of exceptional rules differs in that the guilty person commits a crime, but due to certain circumstances provided for by law, is released from criminal liability. These include General types of exemption from liability established by articles 75-78, 90 of the criminal code; special types of exemption from liability provided for in the notes to article. 122, 126, 127.1, 184, 198, 199, 204, 205, 206, 208, 210, 222, 223, 228, 275, 291, 307, 337, 338 UK, etc.

The third type of exceptional rules is characterized by the fact that a person is brought to criminal responsibility, but is released from serving the entire sentence or from its unserved part, or the punishment is replaced by another type, or the punishment is imposed according to "special" rules according to articles of the General part of the criminal code. These include criminal code provisions enshrined CC 1, 4, 5, article 56, part 2 of article 57, part 2, 2.1 article 59; article 64; p. 1 and 2 of article 65, part 4, article 66; article 68, part 3; articles 73, 79 - 85, 92 - 94 of the criminal code, etc. ^[5]

Thus, the question of whether there is competition between General and special rules and between part and whole should be considered.

It is necessary to outline the zone of possible overlap of the objective side and the subject of the crime in these compositions.

Article 1 of the Federal law "on export control" refers to controlled goods and technologies raw materials, materials, equipment, scientific and technical information, works, services, results of intellectual activity (rights to them), which due to their characteristics and properties can make a significant contribution to the creation of weapons of mass destruction, their means of delivery, other types of weapons and military equipment, as well as products that are particularly dangerous in the preparation and (or) Commission of terrorist acts.

The objects of intellectual property crimes are the objects of intellectual property themselves.

The model law on scientific and technical information ^[6] (adopted in Saint Petersburg on 13.06.2000 by Resolution 15-10 at the 15th plenary session of the Interparliamentary Assembly of CIS member States) defines scientific and technical information as information about documents and facts obtained in the course of scientific, scientific and technical, innovative and public activities. At the same time, the author (co-authors) of scientific and technical information is the person (s) whose creative work created scientific and technical information as a result of intellectual activity.

The interpretation is very broad and fully includes the results of intellectual activity. That is, the subjects of crimes under article 146 and 147 of the criminal code.

According to clause 1 of article 1465 of the civil code of the Russian Federation, information of any nature (industrial, technical, economic, organizational and other) about the results of intellectual activity in the scientific and technical sphere and about the methods of performing professional activities that have actual or potential commercial value due to their unknown to third parties, if such information is not freely available to third parties on a legal basis and the owner of such information takes reasonable measures to maintain their confidentiality, including by introducing a commercial secret regime.

The article names two areas of know-how: the scientific and technical sphere and the sphere of professional activity. Mandatory signs of a secret of production are unknown to third parties, commercial value and the regime of trade secrets.

It can be stated that the items of article 183 and 189 of the criminal code coincide in the part of scientific and technical information of limited access that have a commercial value for which a regime of trade secrets, which by virtue of their characteristics and properties can make a significant contribution to the creation of weapons of mass destruction.

So, in the zone of imposition of elements of crimes on the basis of the subject fall:

article 183: scientific and technical information of limited access that has commercial value, in respect of which a commercial secret regime has been introduced, which, due to its features and properties, can make a significant contribution to the creation of weapons of mass destruction.

article 146 and 147: the works of science, literature and art, including computer programs and databases in the part of the selection and arrangement of materials, performance, phonogram, broadcast or cable radio or television broadcasting, the database in terms of their protection from unauthorized extraction and reuse of its content, works of science, literature and the arts published after their transition in the public domain, in terms of protection of the rights of publishers of such works, invention, utility model, industrial design, which, because of its characteristics and properties can make a significant contribution to the creation of weapons of mass destruction.

Now we will outline the zone of overlap of the elements in the criminal act. Article 189 of the criminal code provides for two possible actions: illegal export and illegal transfer. The difference between them is that the transfer is made on the territory of Russia. Export involves bringing scientific and technical information to the recipient outside the Russian Federation.

According to paragraph 4 Of the resolution of the Plenum of the Supreme Court of the Russian Federation of 26.04.2007 No. 14 "on the practice of consideration by courts of criminal cases on violation of copyright, related, inventive and patent rights, as well as on the illegal use of a trademark", illegal use of copyright objects may include reproduction (production of one or more copies of a work or part of it in any material form, including recording of a work or phonogram in computer memory, on a computer hard disk), sale, rental of copies of works or phonograms, public display or public performance of the work, publication of works, phonograms, performances, productions for public information by means of their transmission on radio or television (broadcast), distribution on the Internet, translation of the work, its processing, processing of the phonogram, modification of computer programs or databases, as well as other actions performed without registration in accordance with the law of the contract or agreement.

According to paragraph 9 of this resolution, the illegal use of objects of inventive and patent rights can be attributed to their import into the territory of the Russian Federation, manufacture, use, offer for sale, sale , other introduction into civil circulation or possession for these purposes of a product, which used a patented invention or utility model or product, which used a patented industrial design and also committing the mentioned actions in respect of a product obtained directly by the patented process; committing the same actions against the device when functioning (operation) of which, in accordance with its purpose automatically carried out by the patented method; the implementation of the method, which uses the patented invention.

Illegal export and illegal transfer are quite consistent with illegal use and are special cases of it.

Article 183 of the criminal code provides for three possible criminal acts:

1) illegal collection of information;

2) illegal disclosure of information;

3) illegal use of information.

In accordance with clause 9 of article 3 of the Federal law of 29.07.2004 No. 98-FZ "on commercial secret", disclosure of information constituting a commercial secret is an act or omission that results in information constituting a commercial secret becoming known to third parties in any possible form (oral, written, or other form, including the use of technical means) without the consent of the owner of such information, or contrary to an employment or civil law contract.

In the literature, it is noted that disclosure can be considered completed at the time of transfer of information to at least one person ^{[7, p.11]}.

This means that illegal export and illegal transfer of objects correspond to the objective side of articles 146, 147, 183, 189 of the criminal code of the Russian Federation.

So, we see the coincidence of certain elements of the crime under article 189 of the criminal code and the articles on crimes against intellectual property, both in terms of the subject and in terms of the objective side, which may indicate competition.

In such a situation, possible variants of competition is a competition of General and special norms on the grounds of the facility and the characteristics of the objective side and the competition of part and whole on the grounds of the facility and the characteristics of the objective side.

The General theory of these types of competition looks like this. In the first of these types of competition, a special rule describes a particular case of crimes provided for by the General rule. A special norm details the act and describes it in more detail, while the General norm indicates generalized signs of the crime.

Thus, the General norm contains a larger scope of the concept (the number of crimes that fall under the norm), but a smaller content (fewer signs of a crime). The special rule contains a smaller amount of concepts (the number of crimes subject to rules less), but larger concept (norm finds more evidence of a crime at the expense of detail in the description of the crime).

The General rule is “reserve”, the abolition of special rules regulating the relations covered by the earlier special, will be the General rule ^{[8, p. 243]}.

The question can be put this way: when you cancel articles about crimes in the sphere of intellectual property will continue to act criminally-legal prohibition contained in them, by article 189 of the criminal code? And vice versa: if article 189 of the criminal code of the Russian Federation is canceled, will articles 146, 147, 180 and 183 of the criminal code cover the corresponding acts?

In the competition of General and special rules on the characteristics of the object, the compositions are usually located in different chapters of the Special part of the criminal code, while one of the crimes must be multi-object (article 316 and article 175 of the criminal code). Competition between General and special rules on the grounds of an objective side is possible when encroaching on the same direct object (art.285 and art. 290 of the criminal code of the Russian Federation).

In the competition between the norm-part and the norm-whole, preference is given to the latter. It more fully reflects the signs of the act, describes it all. While the norm-part corresponds only to some signs of what was done. So, if the offender intentionally causes serious bodily injury to another person, and recklessly causes death, part 4 of article 111 of the criminal code is an integer, and article 109 of the criminal code of Russian Federation – part.

When a part and a whole compete on the basis of an object, one of the crimes must have an additional object that is the main one in the other crime. This case is an example of such a conflict.

When a part and a whole compete on the grounds of the objective side, the encroachment is carried out on the same object. There is an absorption of the part by the whole. One of the acts assumes as one of its elements the Commission of another. For example, beatings (article 1161 of the criminal code) can be absorbed by torture (article 117 of the criminal code) ^[9].

It turns out that in any of the above variants of competition, the question of the danger of the act is fundamental. Competition takes place only in cases where the nature and nature of the harmful impact of the act are taken into account simultaneously by several norms. Article 105 of the criminal code of the Russian Federation is caused by the danger of depriving a person of life. Article 317 of the criminal code of the Russian Federation is primarily due to the danger of undermining the foundations of governance. But the last article takes into account the danger of human death, too. This is confirmed by the size of the sanction – up to capital punishment. The partial coincidence of the nature of the danger of crime causes competition between General and special rules. This competition shall be resolved in favor of special rules – article 317 of the criminal code (p. 48 overview of the judicial practice of the Supreme Court of the Russian Federation No. 5 (2017), approved. By the Presidium of the Supreme Court of the Russian Federation on 27.12.2017).

Intellectual property crimes infringe on a very specific object – the interests of the copyright holder. The latter have both economic and non-material content.

But even in the current version of the rules on crimes in the field of intellectual property, half (articles 146 and 147 of the criminal code) are not located in the same section as article 189 of the criminal code.

Export controls apply to items used in the production of weapons and the preparation of terrorist acts. Article 189 of the criminal code of the Russian Federation is aimed at protecting national security in foreign economic activity.

Based on this, it should be noted that there is no competition between the rules on intellectual property crimes and illegal exports.

If the perpetrator simultaneously violated the rules on export control and intellectual property rights, the act must be qualified as a set of crimes under article 189 of the criminal code of the Russian Federation and one of the articles on crimes in the field of intellectual property.