Exhaustion of rights and parallel import: legal assessment from the point of view of security

Agamagomedova Saniyat ORCID: 0000-0002-8265-2971 Senior Research Fellow, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 saniyat_aga@mail.ru Other publications by this author

The development of interstate commodity exchange in modern conditions is naturally based on the legal regulation of public relations related not only to the creation and use of material values, but also the results of intellectual activity and equated means of individualization. The share of goods containing an intellectual component in the total turnover of goods is growing rapidly, both in quantitative and value terms. Today it is difficult to identify goods that lack the results of intellectual labor, perhaps only raw materials can be attributed to them. In these conditions, the issues of legal regulation (at the national and supranational levels) of public relations in the field of cross-border turnover of goods containing intellectual property objects are of particular importance. The development of interstate economic integration, as well as the digitalization of the economy, which transforms traditional economic interaction between economic entities and between modern states and their associations, increases the relevance of their development. All this makes it necessary to study the issues of cross-border turnover of goods containing an intellectual component, to develop proposals for improving such turnover, taking into account modern challenges and threats.

The issues of exhaustion of exclusive rights are inextricably linked with the issues of legalization of so-called parallel imports, the latter being one of the aspects of the problem of exhaustion of rights. Leading scientists investigating the issues of exhaustion of rights and parallel imports rightly identify the development of international commodity and technological exchange, as well as the different levels of intellectual property protection in modern states as prerequisites for increasing attention to this topic ^{[1, p. 119]}.

Interest in these issues is naturally increasing in the context of interstate economic integration and digitalization of the modern economy. Thus, these issues are beginning to be actively developed in the context of Eurasian integration ^[2-3], as well as increased sanctions pressure on Russia in recent years ^[4-6]. It should be noted that in recent years there have been works combining integration and sanctions aspects ^[7].

It seems that the issues of exhaustion of rights must be considered comprehensively, both from the point of view of ensuring legal protection of exclusive intellectual property rights and security in the broadest sense, and from the point of view of respecting the interests of all parties involved in the processes under consideration ^[8]. We are talking about such participants in public relations in the field of creation, use and turnover (including cross-border) of goods containing intellectual property objects as: copyright holders, their representatives, participants in foreign economic activity, manufacturers, buyers and consumers of goods containing intellectual property objects, as well as the state itself as the main regulator in this field at the same time, the owner of exclusive rights to certain intellectual property objects. It seems that, taking into account the theory of stakeholders, we can talk about the gradual formation and step-by-step optimization of legal mechanisms for ensuring security in the field of cross-border movement of goods containing an intellectual component, security, including all kinds of understanding of security in modern science, as well as the security of all participants in this sphere of economic and related interaction.

With regard to the current situation in Russia related to the selective introduction of the international principle of exhaustion of rights, such issues acquire a relatively new sound and are particularly in demand for scientific development. Such a demand is associated with the complex nature of the institute of intellectual property itself, international standards for its protection and protection, and the combination of private law and public law elements in this institute.

First, it is necessary to determine the terminology. The classification of imports into "white", "gray", "black" and "parallel" ^[4] seems to be very conditional and not correct from a legal point of view. From a scientific point of view, there are three ways to exhaust exclusive rights to intellectual property objects (primarily trademarks): national, regional and international. In this regard, an approach seems more appropriate, in which the solution of the principle of exhaustion of exclusive rights determines the content of foreign trade transactions with goods containing an intellectual component. It is important to emphasize that international standards in the field of cross-border trade in goods containing intellectual property objects (first of all, the TRIPS Agreement) leave the right to choose the optimal (suitable for a particular economic system) model of exhaustion of rights to states ^[1].

In modern Russian conditions, we can talk about the following conditional periodization of the legal regulation of this category of public relations:

1) the beginning of the 2000s – the normative consolidation of the national principle of exhaustion of rights;

2) 2010 – the formation of the Customs Union of Russia, Belarus and Kazakhstan and the consolidation of the regional principle of exhaustion of rights at the level of integration education;

3) 2022 – partial (selective both from the point of view of the residence of copyright holders and from the point of view of the intellectual property objects themselves) implementation of the international principle of exhaustion of rights in the Russian Federation (at the national level) with subsequent optimization of the introduced mechanism.

From the point of view of streamlining the conceptual apparatus of the exhaustion mechanism in force in Russia today, we consider it possible to talk about consolidating the regional principle of exhaustion of rights at the EAEU level and at the same time establishing certain exceptions from it in terms of introducing the international principle of exhaustion in relation to certain categories of goods established at the national level (more precisely, even at the departmental level (list of goods (groups goods) is established by the order of the Ministry of Industry and Trade, the last changes to which were made on 05/08/2024)).

Secondly, it is necessary to accurately determine the safety of whom and what will be ensured through the formed and permanently developing mechanism of exhaustion of rights in modern Russian conditions. It seems that it is possible to talk about the security of at least the following categories of participants in the sphere of public relations under consideration (including both relations of an economic nature and other related economic relations):

1) copyright holders of exclusive rights;

2) consumers of goods containing intellectual property objects;

3) manufacturers of goods containing intellectual property objects;

4) national economy (the state, its economic and other interests);

5) the economics of integration education in general.

Leading scientists in the field of research on existing models of exhaustion of rights identify the interests of such subjects as the interests of authors-developers, investors, manufacturers of new products and, in general, state interests in the field of industrial policy ^{[1, p. 119]}. Other authors classify similar interests in even more detail ^[8]. At the same time, the essence of such allocation is not in the number and legal status of the selected entities, whose interests are somehow involved in the mechanism under consideration, but in the fact that these interests determine the security of various categories of participants in relations in the field of creation, use and turnover of exclusive rights in various ways. With this in mind, it should be noted that the mechanism of exhaustion of rights currently formed in Russia has deepened the existing differentiation of such participants, dividing the category of right holders into those for whom the regional principle of exhaustion of rights applies, and those for whom exemptions have been established and the international principle applies.

The issues of protection of exclusive intellectual property rights uniquely combine aspects of ensuring public law and order in this area and aspects of protecting the private interests of business entities. With regard specifically to security issues (the state of protection of relevant interests), in the current situation in Russia with the exhaustion of exclusive rights, we can talk about a certain ratio of interests of participants in these public relations, a specific hierarchy of levels provided by the partial legalization of the international principle of exhaustion of security rights. The priority levels of security here are the safety of domestic producers and consumers of goods containing intellectual property objects, as well as the interests of the national economy (public economic interest at the national level). In the list of security levels of a different (secondary) order, it is necessary to designate the security (level of security) of a certain category of foreign copyright holders of exclusive rights (copyright holders from so-called unfriendly countries). Economic interests of an integration nature (public economic interest at the supranational or integration level) can also be attributed to the security interests of this order.

It seems that the current combination of different models of exhaustion of rights during the period of countering sanctions pressure on Russia, bringing issues of national security protection to the fore, reflecting the priority of the interest of domestic copyright holders and manufacturers are quite reasonable and natural. The issues of cross-border turnover of goods containing intellectual property objects include not only a certain ratio of private and public interests of participants in these relations, private and public liability, but also aspects of national and supranational regulation, the interests of the national, international and integration order. In the context of modern challenges and threats aimed primarily at the erosion of the national public order, aspects of national regulation, issues of national security, its economic and other components naturally come to the fore. In addition, the mechanism of exhaustion of rights can highlight economic, intellectual, innovative and other aspects. And in modern conditions, purely economic aspects dominate, prevail over the factors responsible for innovation, patent and other activity. The latter is certainly important, but in the context of a crisis in international economic and other relations, it is inferior to national security issues.

Thirdly, it should be noted the dynamism of the mechanism of exhaustion of rights formed in modern conditions in Russia, the mobility of the established list of exemptions in relation to foreign copyright holders. Despite the indicated decision of the public authorities to extend the effect of parallel imports for 2025, it is planned to gradually reduce the directions and products indicated in this list. Such a reduction will be due to the readiness of the domestic economy to meet its own needs, "as Russian products of appropriate quality and in the required volumes are released, the possibilities of parallel imports will narrow" (The Government decided to extend parallel imports for 2025. An electronic resource. https://www.rbc.ru/economics/06/06/2024/6661d57c9a79477dff622841 (mod. date: 06/10/2024)). This thesis confirms the temporary nature of the measures introduced, which was indicated back in March 2022, when the mechanism was first introduced in order to protect domestic consumers of goods and support the Russian economy as a whole.

In our opinion, special attention should be paid to the specifics of the legal regulation of the turnover of certain categories of goods, for example, medicines. Such regulation naturally combines aspects of not only ensuring the safety of these categories of goods, but also ensuring consumer safety, as well as ensuring competition in the relevant commodity markets ^[9].

Thus, the statement of the fact that "parallel imports have an impact on economic security" ^{[4, pp. 69-70]} reflects a very limited approach to assessing the current situation with ensuring the interests of all participants in public relations in the field of creation, use and transfer of exclusive intellectual property rights. The range of interests, rights and freedoms of the participants in these relations, the list of levels of their security in the current situation is much more complicated and diverse. In this regard, their provision and legal protection (civil and public law ^[10]) require more differentiated and verified approaches, selective assessment, taking into account the optimal ratio of different levels of security of all parties to social interaction regarding the creation, use and turnover (national and cross-border) of intellectual property rights.

The analysis allows us to conclude that the mechanism of exhaustion of rights can be considered as a means of ensuring national security, a way to strengthen technological sovereignty, measures to protect the domestic economy in the face of internal and external threats of various genesis. At the same time, in relation to ensuring security, it is necessary to approach comprehensively, recognizing both the multilevel nature of security in the context of integration, and various possible options for the correlation of security between different participants in legal relations in the field of creation, use and turnover of exclusive rights. Of course, in the context of anti-Russian sanctions, the formed and developing model of exhaustion of rights in Russia can also be positioned as a way to counteract sanctions pressure, as well as measures to protect domestic copyright holders, producers and consumers, the formation and strengthening of technological sovereignty.