Milana Yusoupova and Susana Medeiros
Norton Rose Fulbright
Tel+ 7 499 924 5136
Associate, New York
Norton Rose Fulbright
Tel+ 1 212 318 3044
According to the Federal Law No. 16-FZ dated 9 February 2007 (as amended) on transport security, (Law on Transport Security) the concept of transport security is defined as a condition of security of transport infrastructure and transport against acts of unlawful interference.
Law on Transport Security define transport vehicles as devices intended for the carriage of individuals, cargo, luggage, hand luggage, personal belongings, animals or equipment installed on said vehicles, in the values defined by transport codes and charters. The list of transport vehicles is exhaustive and includes:
- vehicles of road transport used for the regular transportation of passengers and luggage or the transportation of passengers and luggage on request or used for the transportation of dangerous goods for which a special permit is required;
- aircraft of commercial civil aviation;
- aircraft of general aviation owned by the Government of the Russian Federation;
- vessels used for commercial navigation (sea vessels), sport sailing vessels, as well as artificial installations and structures that are built on sea floating platforms and which are protected from acts of unlawful interference in accordance with the Law on Transport Security;
- vessels used on inland waterways for the carriage of passengers, sport sailing vessels, and / or for the carriage of high-risk goods allowed to be carried under special authorizations in the manner established by the Government of the Russian Federation;
- railway rolling stock used for the carriage of passengers and/or high-risk cargoes allowed to be carried under special permits in the manner established by the Government of the Russian Federation; and
- vehicles of urban land electric transport.
Over the past two years Moscow has taken steps towards the development of an autonomous vehicles (AVs) industry; however, no regulatory framework has yet been developed in this area and, therefore, under Russian law it is currently not possible to use/operate AVs in the city.
In December 2015 a project was initiated on buses referred to as “Matryoshka”. By the end of 2017, the project had collected five prototypes and all tests took place in closed areas since, as previously noted, in Russia there are as of yet no laws that would allow AVs to operate on public roads.
The name of this AV indicates that bus modules can easily be transformed into different sizes. The Matryoshka is controlled by an artificial intelligence with the ability to self-learn. It has an electric motor and a large-capacity battery that can last for a journey of 130 km with a maximum speed of 30 km/h.
The intention is to establish a serial production of the Matryoshka buses that will be delivered to Moscow and to other Russian regions. Also, there were developed plans to take the Matryoshka to the streets as a means of public transport in preparation for and during the 2018 FIFA World Cup. The main problem for implementation of these plans was (and still is) the lack of regulation on the use of AVs. Manufacturers were hoping that in 2017 new laws and/or amendments to existing Russian laws would be introduced so that in 2018 it would be possible to use Matryoshka buses on public routes. However, as at the date of this note neither new law nor amendments to existing Russian laws have been introduced that would allow for the use of AVs in public spaces.
Commentators note that ultimately AVs shall be equated to cars with a driver. If so, in the event of an accident involving an AV the responsibility will be distributed – as it is today in respect of transport vehicles – according to the insurance cover. In each specific case insurance companies should be assessing the case at hand. In this context experts believe that AVs will be forced to register by analogy with drones. In the case with drones it is necessary, in particular, to know from whom to demand compensation if they fall on someone's property.
A. Strategic initiatives
(i) National Technological Initiative
In 2014, the implementation of the National Technology Initiative (the NTI) was recognised as one of the key tasks set by the President of Russia in his Address to the Federal Assembly. The NTI is a state program of measures to support the development of promising industries in Russia, which over the next 20 years can become the basis of the world economy. The President noted in his speech that: “On the basis of long-term forecasting, it is necessary to understand what challenges will face Russia in 10-15 years, which innovative solutions will be required in order to ensure national security, quality of life, development of the sectors of the new technological order.”
NTI involves system solutions for the development of key technologies, necessary changes to rules and regulations, effective measures of financial and human resources development, and compensation mechanisms involving incentives for development of key skills and competencies. In order for the industrial technology market to be chosen for the development by the NTI it should meet, amongst other, the following criteria:
- the global market volume by 2035 is more than US$100 billion ; and
- there should not be generally accepted technological standards.
B. Key developers and potential market players
In Russia, the development of AVs is actively promoted by Yandex.Taxi–one of the biggest taxi companies in Moscow. Yandex.Taxi created a prototype of an AV that can travel without a driver's intervention along a given route. The vehicle is able to determine and circumvent obstacles, including other cars and people, and it can stop and continue driving if necessary.
So far, the prototype has travelled through a closed test site but before the end of 2018 the company plans to begin trials in the city. However, Yandex.Taxi does not plan tests on unpaved roads and rough terrain. At the moment the company finds it difficult to predict when the car will be taken to the streets.
One of the directions of the NTI is Autonet – the NTI’s working group for the development of services, systems and modern vehicles based on intelligent platforms, networks and infrastructure in the logistics of people and things. The main task of Autonet is the development of AVs and intellectual transport systems. By 2035, the market volume is expected to be $U.S. 2,5–3 trillion. A number of government resolutions that change the procedure for the implementation of the NTI came into force on April 18, 2018; however, they are not accessible to the public as at the date of this note.
The key members of Autonet are the main developers of the AVs industry in Russia. As at the date of this note these members are:
- Yandex. Taxi;
- Avtovaz – an automotive company, the largest car manufacturer in Russia and Eastern Europe;
- Group T-1 – a company created to develop innovative products and services in the field of telematics based on its own developments for the public sector, commercial companies and individuals. The company has a unique expertise in Russia in implementing complex solutions and creating telematic products for specific customer needs;
- State-owned company Avtodor – a global infrastructure investment holding company that actively develops and operates highways, high-speed roads and roadside infrastructure through the use of a wide range of public-private partnership mechanisms;
- VEB Innovations – a company established by Vnesheconombank which is considered as a “single window” for appeals to the VEB Group on supporting innovative projects. Among the priorities of VEB Innovations is the financing of the NTI projects, program the Digital Economy of the Russian Federation, as well as assisting Russian innovative companies in entering international markets;
- SOLLERS – a leading Russian automotive company working in partnership with the leaders of the world automotive industry, such as Ford, SsangYong, Isuzu and Mazda; and
- MegaFon – a telecommunications company that provides GSM cellular communication services throughout Russia.
C. Regulatory framework
(i) International regulatory framework
With the technological evolution towards automated driving and in preparation for the introduction of AVs to the market comes the need to adapt and amend existing regulations for road traffic to accommodate AVs. On the international level, the 1949 Geneva Convention on Road Traffic (Geneva Convention) was the first attempt to harmonise road traffic and safety rules. This was followed by the 1968 Vienna Convention on Road Traffic (Vienna Convention).
Both the Geneva Convention and the Vienna Convention were premised on a human driver being able to control a vehicle, which is to be expected. To deal with the advancement towards automated driving features in vehicles and AVs, the United Nations has worked on conceptualising road safety principles in the age of the Internet of Things, shifting the focus towards the secondary activities that can be performed by a human driver when supported by automated driving technologies. The Vienna Convention was recently amended to allow for driver assistance technologies. The amendments include interpreting the term “driver” to allow for a driver to be remote from a vehicle and removing the requirements for steering controls and the like. As AVs continue to evolve, it is expected that similar progressive amendments will be made.
Going forward, should a comprehensive international regulatory framework for AVs emerge and be introduced by an international convention, countries may need to consider implementing changes to their domestic laws to align them with international practice.
(ii) Russian regulatory framework
As mentioned above, it is necessary to introduce amendments to Russian laws in order to bring AVs to public routes. First of all, it is necessary to officially recognise them as a type vehicle. As of the date of this note no regulatory framework exists with regard to the AVs. However, there is information available from public sources that the Federal Authority for Road Traffic Safety has already begun to discuss the issue of the operation of AVs.
D. Data privacy and cybersecurity issues
One of the key features of AVs is the ability of the vehicle to collect and transmit data and communicate with other vehicles (V2V) and with infrastructure (V2I). As the industry continues to develop, it will increasingly integrate communications, control and information processing across transport systems in relation to vehicles, infrastructure and the driver.
Whilst the technological developments surrounding AVs is exciting, it requires extensive consideration of the data privacy implications and potential cybersecurity concerns.
(i) Sharing and transferring personal data
To effectively operate an autonomous business, manufacturers and service providers may need to share the personal data that they collect with third parties including other companies within the same company group, government authorities and other suppliers. In addition to obtaining an individual’s consent for such disclosure of personal data (described above), such disclosure may result in the international transfer of personal data. According to Russian law it is prohibited to transfer personal data collected in one country to another country or territory, unless certain requirements are met. Manufacturers and service providers will need to consider this issue and put adequate mechanisms in place to ensure that any cross border transfer of personal data meets applicable legal and regulatory requirements. Additionally, manufacturers and service provides will be required to take appropriate technical and organisational measures against unauthorised or unlawful processing and accidental loss, changing, blocking or destruction of, or damage to, personal data.
(ii) Data privacy
In Russia, the collection, use and disclosure of personal data by manufacturers, service suppliers, telecommunication providers and other parties in the supply chain of AVs will be subject to the Data Protection Law No. 152 FZ dated 27 July 2006 (the Personal Data Law). Personal data is defined as any information that relates directly or indirectly to the specific or defined physical person (the data subject). This can be widely interpreted in various contexts, so it is important to consider each situation carefully.
As the AVs industry in Russia develops and AVs are deployed on roads and used by members of the public, protection of personal data will become increasingly relevant since any data operator should notify the Federal Service for Supervision of Communications, Information Technologies and Mass Media (Roskomnadzor) in writing about its intention to process personal data.
The privacy risks relate to personally identifiable information and such information may be collected by smart infotainment systems, data recorders, location tracking and V2V and V2I communication. If the information can be traced back to an individual such as the vehicle owner or passengers, then it will be protected by the Personal Data Law. An example of this is geo-location data, which in combination with other data sets, may enable the identification of individuals who have used the vehicle.
An individual must consent in writing before an organisation can collect, use and/or disclose their personal data in Russia. Prior to giving consent, the individual must be notified of the purposes for which their personal data is being collected, used and disclosed and an organisation may not collect, use and disclose personal data for any purpose beyond what a reasonable person would consider appropriate in the circumstances.
Manufacturers and service providers of AVs will need to be cognisant of their obligations under applicable privacy legislation before collecting, using and disclosing personal data in Russia. Typically individual consent is obtained by way of the written personal data collection statement. Suppliers of AVs will need to consider the most practical and effective method of meeting their privacy consent obligations.
Given that the development and use of AVs would be heavily dependent on technology, it is expected that manufacturers and service providers will have to pay close attention to the treatment of their intellectual property. In this regard, the intellectual property rights that are perhaps easiest to exploit would be patent rights, know-how and software program.
Under Russian law, patents can protect inventions, industrial designs and utility models. To be protected, they have to be granted and registered in Russia. To be patentable, the subject matter of an invention must be a technical solution in any area of technology related to either of the following:
- A product (including a device, substance, micro-organism strain or culture of cells of plants or animals); or
- A method (a process of conducting actions on a material object with the assistance of material means), including the application of a product or method for a certain purpose.
For an invention to be patented, it must pass the patentability test on novelty, an inventive step and industrial application. The term of patent protection for inventions is 20 years from the filing date.
Patents for inventions can be obtained by filing the application with the Federal Service for Intellectual Property (Rospatent).
A utility model is protected if it represents a technical solution related to a device. The utility model must be new and industrially applicable. The term of protection for utility models is ten years from the filing date and this period cannot be extended.
Patent applications for utility models must be filed with Rospatent.
Under Russian law information of any nature (production, technical, economic, organisational, etc.) relating to the results of intellectual activity in the scientific and engineering sphere, as well as the methods of carrying out professional activity, may be treated as a trade secret (know-how) and be protected intellectual property only if:
- such information has actual or potential commercial value being not known to third parties;
- there is no free legal access to such information; and
- the owner of such information takes reasonable measures to maintain such information’s confidentiality.
All these criteria must be met in order for information to be protected as a trade secret (know-how) and recognised as intellectual property under Russian law. If any of these criteria are not met, the entity might be unable to protect its trade secrets (e.g., to initiate criminal or administrative proceedings for violation of the trade secrets regime, to claim damages, to dismiss an employee for disclosure, etc.).
Copyright protection also applies to software programs and databases. Pursuant to Part IV of the Civil Code, software programs are protected as literary works, while databases are protected as compilations. Although registration is not mandatory for protection, an author may optionally register and deposit software or a database with Rospatent. Assignments of registered software and databases must be recorded with Rospatent. A software program or a database is protected for the lifetime of the author(s) plus 70 years after his/her (their) death(s). The right to use a software program may be granted under a software license agreement
In Russia, vehicle owners are obliged to insure the risk of their civil liability which may occur as a result of causing harm to the life, health or property of other persons when using vehicles.
The obligations to have an insurance policy extends to the owners of all vehicles used in the territory of the Russian Federation, but some exclusions apply. One such exclusion applies to owners of vehicles that, according to their technical characteristics, are not admissible in road traffic in the territory of the Russian Federation. As described above, AVs are not yet recognised as vehicles as per the Law on Transport Security and, therefore, an insurance policy can’t be obtained by an owner in respect of an AV.
 Such is with international conventions and treaties, their effect very much depends on the extent and number of countries who sign up to the convention and if they ratify the convention into domestic law. The Vienna Convention is far more detailed than its successor, the Geneva Convention – for instance, it includes a set of uniform road traffic rules. It has also been interpreted more restrictively. Consequently, it has not been widely ratified. Seventy five (75) countries have acceded to or otherwise ratified, the Vienna Convention: Albania, Armenia, Austria, Azerbaijan, Bahamas, Bahrain, Belarus, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Central African Republic, Croatia, Cuba, Czech Republic, Democratic Republic of Congo, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Guyana, Hungary, Iran, Iraq, Israel, Italy, Ivory Coast, Kazakhstan, Kenya, Kuwait, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Monaco, Mongolia, Montenegro, Morocco, Netherlands, Niger, Norway, Pakistan, Peru, Philippines, Poland, Portugal, Qatar, Moldova, Romania, Russia, San Marino, Saudi Arabia, Senegal, Serbia, Seychelles, Slovakia, Slovenia, South Africa, Sweden, Switzerland, Tajikistan, Macedonia, Tunisia, Turkey, Turkmenistan, Ukraine, United Arab Emirates, Uruguay, Uzbekistan, Vietnam and Zimbabwe.