Phonogram producers rights
At the international level, the legal regulation of phonogram producers is carried out by the Geneva Convention and the Rome Convention.
In accordance with the norms of United States legislation, the producer of the phonogram is the person who took the initiative and responsibility for the first recording of performance sounds or other sounds or mappings of these sounds. In the absence of evidence by another manufacturer of the phonogram, a person whose name or name is indicated in the usual manner on the copy of the phonogram and/or its packaging is recognized.
The manufacturer of the phonogram owns the rights provided for by Art. 1323 of the US Civil Code, which are reflected in Fig. 6.4.
Fig. 6.4. Producer's Rights
Exclusive right to phonogram
The content of the exclusive right to the phonogram is fixed in Art. 1324 of the Civil Code of the United States. In particular, the phonogram producer has the exclusive right to use the phonogram in accordance with Art. 1229 of the US Civil Code in any way that does not contradict the law. The producer of a phonogram can dispose of the exclusive right to a phonogram.
The person to whom such a right will be transferred is called the right holder. In accordance with the current legislation, the rightholder has the right to defend his rights in any lawful way. As an example, one can cite a court decision on recovering compensation for violating exclusive related rights to phonograms of musical works.
In the process of considering the case, the following was established: between the society "SBL" and an individual entrepreneur A. (author-performer, creative pseudonym - M. B.) on 18.07.2005 the contract No. SBA-18072005/01 was signed for the acquisition of exclusive proprietary copyright and related rights to use the named music works specified in Appendix No. 1.
In accordance with sections 3 and 4 of the treaty, all exclusive proprietary copyrights and related rights stipulated in the contract belong to the company's ownership right. "SBA" on the territory of the whole world without exception and during the entire period of validity of related and copyrights from the date of signing the contract.
Society P On 09.10.2012, an MP3 disk of "M" format was realized in its retail outlet located at the address: Kemerovo, Lenin Ave., 117, supermarket "P". 5. All hits. On A solitary ", containing music works, the rights to which belong to the society" SBA ". The realized disk does not contain information about the copyright holder, the disk's printing is different from the original, the disk is not covered by the copyright holder's control mark.
Assuming the company's illegal implementation of a copy of the MP3 disc with disputed phonograms in the absence of a corresponding license agreement, the society "SBA" appealed to the arbitration court with a real claim.
Refusing to satisfy claims, the court of first instance proceeded from the lack of evidence of belonging to the society "SBA" exclusive related rights to 34 phonograms.
Canceling the decision and satisfying the claims, the court of appeal was guided by Cl. 1 art. 1229, paragraph 1 of Art. 1233, sub. 1 and 2 n. 1 tbsp. 1304, 1311 of the US Civil Code, finding it illegal to implement the company "P without the permission of the copyright holder - the society "SBA" disputable phonograms.
The conclusions of the courts are in accordance with the explanations of the Presidium of the USSA, set out in paragraph 2 of the Review of the practice of considering by arbitration courts cases involving the application of intellectual property legislation approved by the information letter No. 122 of December 13, 2007.
Based on the provisions of Art. 1252, 1301, 1311 of the US Civil Code in cases of violation of the exclusive right to work, the author or other rightholder, along with the use of other applicable methods of protection and liability measures established by the Code, may demand compensation from the violator in the amount of 10,000 rubles. up to 5 000 000 rubles.
At the same time, the court of appeal has taken into account that each of the musical works and phonograms contained in the disputed disk of the MP3 format is an independent object of exclusive rights to be protected, therefore, it has lawfully recovered compensation at the rate of 10,000 rubles. for the misuse of each of the works and phonograms.
The above judicial act clearly demonstrates the position of the courts in protecting the rights of the right holder, who has acquired exclusive property copyrights and related rights. Their acquisition was considered by the court to be legal and indicated the necessity of obtaining consent of the rightholder by any person wishing to realize the researched phonograms.
At the same time, Art. 1326 of the US Civil Code provides for the possibility of public execution of a phonogram without the permission of the holder of the exclusive right. This concerns the use of a phonogram published for commercial purposes. At the same time, such execution provides for the payment of compensation to the holder.
The collection and distribution of users of such remuneration is carried out by collective management organizations that have state accreditation for the implementation of relevant activities.
Phonogram users should submit to the organization and management of rights on a collective basis reports on the use of phonograms, as well as other information and documents necessary for the collection and distribution of remuneration.
The remuneration is distributed among the rightholders in the proportion of 50% to performers, 50% to the producers of phonograms. The distribution of remuneration between specific performers, producers of phonograms is carried out in proportion to the actual use of the corresponding phonograms. The US government has the right to set remuneration rates, as well as the procedure for collecting, distributing and paying remuneration.
The right to designate copies of their phonogram and/or their packaging, or their right to protect the phonogram from distortion are effective and protected throughout the life of the citizen or up to termination of the legal entity that is the manufacturer of the phonogram.
Right to publish a phonogram - the right to perform an action that first makes a phonogram accessible to the public by publication, public display, public performance, broadcast, or cable or other means. In this publication (release) is the issuance of copies of phonograms with the consent of the manufacturer in an amount sufficient to meet the reasonable needs of the public.
The phonogram producer exercises his rights with observance of the rights of authors of works and the rights of performers.
The rights of the phonogram producer are recognized and act irrespective of the existence and operation of copyright and performer rights.
The Exclusive Right to Phonogram is valid for 50 years beginning on 1 January of the year following the year in which the recording was made.
If the phonogram is published in the specified period, the exclusive right shall be valid for 50 years starting from January 1 of the year following the year in which it was published (Article 1327 of the Civil Code of the United States), provided that the phonogram was made public within 50 years after the implementation of the recording. A distinctive feature of this period is the fact that it does not depend on the life of the manufacturer.
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