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Is there a reason for sarcasm?

Published in New advocate newspaper. № 17 (058). September, 2009.

Natalia Gornostay, Associate of the Law firm «YUST»

Doubt that organizations for the collective management of rights required holders, does not occur

Recently in a press there was sarcastic messages concerning the activity of organizations for collective management of rights, and in particular, the Russian authors ' society (RAO). According to the authors of these publications, RAO just collects on all the money for use of copyright, takes part, and the remaining part (of course, is very low) lists the authors. Justified if this point of view?

Marvel: RAO

Russian authors ' society - non-profit public organization, created by the authors for the realization and protection of copyright in the sphere of intellectual activity.

One of the priority activities of RAO is the management of property rights of authors and other rights holders and their successors on a collective basis and copyright protection in cases when their practical realization and protection of individually difficult (public performance, including on radio and television, reproduction of works by means of mechanical, magnetic recording, reproducing, copying of works of fine and decorative-applied art, industry and other cases).

Such a control is carried out on the basis of the contract about transfer of powers of the management rights concluded by the organization for the collective management of authors ' rights with the right holder in writing.

Along with managing the rights of those rightholders with whom it has signed the relevant contracts, RAO has the right to manage the rights and remuneration for those rightholders with whom she has such agreements are not concluded as from August 15, 2008, RAO is accredited by the state organization. That is, the right holder is not obliged to ask RAO manage its rights and protect its interests in court.

If the right holder does not wish to RAO defended its interests, it must notify the organization of its decision in writing.

That is, even if the right holder has signed a contract with another organization for the administration of rights on a collective basis, RAO right to manage his rights as long as he is the copyright holder will not be asked RAO contrary.

In addition to the management rights of Russian authors, RAO has the right to represent the interests of foreign authors. Management of property rights of foreign authors in Russia is being implemented on the basis of agreements on mutual representation of interests in the field of public performance and other uses of works, prisoners RAO with foreign companies, Russian and international authors. On the basis of such agreements RAO obliged to protect the violated on the territory of the Russian Federation the rights of authors foreign organizations.

Thus, RAO represents the interests of all owners (including foreign), whose works were publicly executed on the territory of the Russian Federation and which have not been excluded from the register of RAO.

Legislation of the Russian Federation on copyright is established that any use of works lawfully only with permission of the copyright holders. Into force on the cap. 6 p. 2 item 1270 of the RF CC by use of a work is considered, among other things, its public performance, i.e. performance of a work in a live performance or with the help of technical means (radio, television and other technical means), as well as showing audiovisual work (with or without accompanying sound) in a place open for free visits, or in a place where there are a significant number of persons not belonging to the usual family circle (which is determined by the court taking into account the particular circumstances of the instant case), irrespective of perceived work in the place of its presentation or demonstration or in another place simultaneously with presentation or exhibition of a work.

The author of the work, regardless of whether he is the executor of works or not, has the right to remuneration for the public performance of works.

The claim to «South-art»

Consider a sensational case on the suit of RAO in the face of the southern branch of the limited liability company «Yug-art» about indemnity for infringement of copyright in the form of non-contractual use of the works, i.e. without payment of royalties to the authors.

LLC «Yug-art» was organized in 2008 Rostov-on-don, the concert of Deep Purple, but for a license for the public performance of works in concert in South branch of RAO not addressed. In this regard, RAO asked the court to recover from the company «Yug-art» in your favor for the further distribution and payment of compensation for each case of non-contractual use of the work in the amount of 450 000 rubles.

RAO appealed to the court on behalf and in the interests of the authors of the songs that are members of organizations that manage the rights of authors, «Pee-er-es» (PRS) and «Bi-em-AI» (BMI). RAO manages rights of the members of these organizations on the basis of an agreement on mutual representation of interests with the company «PI-er-es» and «Bi-em-AI».

But if the authors of the songs of Deep Purple are the participants of the group, which received a fee for the performance of their songs, why LLC «Yug-art» has to pay someone else?

The author and performer

From the point of view of the current legislation royalties to performers does not affect the resolution of issues relating to the payment of remuneration, which shall be paid to the authors for the use of their works.

A person exercising public performance of works (including its presentation in live performance), is a legal or physical entity that organizes public performance in a place open for free visits, or in a place where there are a significant number of persons not belonging to the usual family circle, that is the person who takes the initiative and responsibility for carrying out the respective activities.

It is the person carrying out public performance of works, shall conclude the contract about granting him the right to publicly perform the work with the copyright holder or the organization for the administration of rights on a collective basis and pay the due remuneration to the right holder. This position is set out in paragraph 32 of the Plenum of the Supreme Court of the Russian Federation № 5 of the Plenum of the RF № 29 dated 26 March 2009 «On certain issues arising in connection with introduction in action of the fourth part of the Civil code of the Russian Federation».

Based on the above we can conclude that the organizer of the public performance of the work shall be paid to the author of the works (the copyright holder), and the executor of works, artists receive royalties for the execution of actions on execution of works and authors receive remuneration for the fact that their work publicly executed. Royalty organizer of public performance of a work pays not directly to the author, and by deducting a certain amount of organization managing the rights of the author, i.e. in most cases the Russian author's society.

Even if the author and performer of a work - the same face, the concert organizers are obliged by law to conclude not only the contract with the performers, but also an agreement with UES to pay royalties.

Turning to court RAO defended the interests of the authors of the works performed by the group Deep Purple in concert (in this case - the band members themselves), from dishonesty organizer of the concert. In a literal sense, the authors of the songs of Deep Purple lost due to them by law royalties, the obligation of payment of which by law is assigned to the organizer of the concert (LLC «Yug-art»).

The scheme of work

This applies also radio stations, restaurants and other public places (hotels, health centers, hairdressing, etc.), where the public performance of works. Any such organisation (radio, restaurant, etc. lists RAO (or other organization on management of rights of authors on a collective basis with which it has concluded the contract) royalties for the use in public works.

The restaurant periodically pays a fixed amount, which is usually calculated based on the number of seats. The restaurant pays remuneration for performing not some particular work, and for the public performance of works of all authors. In the report, together with payments to an organization authorized in the field of management of rights of authors, restaurant must specify the works which authors were exercised during the reporting period. Radio station when the payment of royalties referred to the appropriate organization playlists, which show what works were used, promoters shall inform the organization that governs the rights of the authors of the participants of the concert.

As you can see, the efficient control of the activities of organizations using works of authorship, does not exist. RAO or other authorized organization for collective management of rights issues licenses for the use of works and receives payments only for works that are indicated in the report.

Received royalties RAO (or another authorized organization) distributes between authors and shall pay them compensation, net of withholding amounts to cover the costs for the collection, allocation and payment of such remuneration.

Distribution and payment of remuneration are made regularly within the terms stipulated by the Charter of the organization for the administration of rights on a collective basis, and in proportion to the actual use of copyright objects, are defined on the basis of information and documents, received from users, and also other data about the use of copyright objects, including information of a statistical nature.

Simultaneously with payment of interest organization for the administration of rights on a collective basis shall submit to the rightholder report containing information about the use of his rights, including the size of the collected remuneration and about withheld from him.

So there is a payment of author's remuneration, if between the author and RAO (or other organization) has concluded the contract about transfer of powers on management of author's rights on a collective basis. If such a contract with the author is not enclosed then location such author's remuneration is stored on Deposit RAO three years. During this time, the author may apply to the radioactive waste with the request for payment of the due remuneration for the use of his works. After three years RAO may dispose of these resources on your own.

Thus, the author may not receive remuneration for the use of his works at least in two cases: if you do not supply the product of the author in his report; if the author has the agreement with RAO and the author himself is not time addressed to RAO with a request to pay his due reward.

The struggle for the management of related rights

Likewise is the case with the payment of royalties to performers and producers of phonograms for the use of related rights.

In accordance with the Russian legislation on copyright and related rights any user (restaurant, radio, etc.) have to pay for having publicly perform the music, not only to its authors, but also musicians, singers and other right holders.

In present in the Russian Federation, management activities related rights holders mainly implemented by three organizations on the basis of contracts with owners - Russian society for the rights of performers (ROUPI), noncommercial partnership «Equal Phonographic Alliance» (NP XRF) and all-Russian public organization «Society for collective management of related rights “of all-Russian organization for intellectual property” (LLC «WIPO»).

on August 6, 2009 Rosokhrankultura has taken a decision on state accreditation of LLC «WIPO» in the areas of collective administration of rights of performers and producers of phonograms. ROPE and NP XRF believe this decision is groundless and illegal given the current violations by LLC «WIPO» and it does not match the criteria provisions for accreditation and intend to appeal this decision.

Well, apparently, this business is really brilliant: despite all the complaints and constantly emerging issues and disputes related to the activities of the organizations of this kind, doubt that organizations for the collective management of rights required holders, does not occur.

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