Who is the "concert organizer"?
From time to time the blogosphere is shaken by the same type of mini-scandals with the participation of the Russian Authors' Society . They are called by the fact that once again this “society” requires “author's deductions” for the organizers of some concert. The story with the group “Deep Purple”, which was one of the first to figure in such matters, became a common feature. There were also Samara veterans who performed military songs, as well as many others. The last case was the report of claims to the groups “Lyube” and “Scorpions”.
RAO, which has recently been closely following what is being written about it on the Internet, promptly publishes on its website press releases for “representatives of various media and the blogosphere” on such incidents. For example, there are already three messages about “Lube” and “Scorpions”: the general press release , the positions of the German society GEMA and the producer center of Igor Matvienko . This site is unpopular and few have read these messages. But this can and should not be done: the position of the RAO for such conflicts is always the same. It boils down to the fact that no one thought the artist should be forbidden to sing his (or anyone else's) songs: supposedly the organizer of the concert, to which RAO claims are sent, must pay royalties ...
Get ready, under the cut a long, but quite interesting article
')
In order to clarify the reason for such conflicts, let us start from the very beginning: the question of what constitutes a concert from the point of view of legislation. As you know, the copyright to the newly created work arise without following any formalities. It is not necessary to register it anywhere in order to start using its rights: the author can do it on his own, without consulting anyone, and without asking anyone for permission. But if he wants to give this right to someone else, you will need to enter into a licensing agreement. At the same time, the agreement should indicate the ways of using the work, which are listed in article 1270 of the Civil Code of the Russian Federation.
Singing a song at a concert is called in this article “public performance”: “ public performance of the work, that is, the presentation of the work in live performance or with the help of technical means (radio, television and other technical means), as well as the display of an audiovisual work (with or without accompaniment). sound accompaniment) in a place open to the public, or in a place where there is a significant number of persons who do not belong to the ordinary family, regardless of whether the work is perceived in its place detecting or display or in another place simultaneously with the presentation or display of the work. "
As can be seen from this wording, it includes not only “live” performances, but also playing music with the radio running, TV, and just from the disks. In addition, the author’s remuneration must also be paid for the “public performance” of the film’s music, which occurs when the film itself is shown. These are the so-called “taper” deductions, which have their origins since the days of silent films. They serve as a matter of frustration for the rest of the film’s co-authors, who don’t receive any deductions, so periodically there are calls to make such payments for the director and the scriptwriter. (Which is typical, appeals to cancel this "obsolete" payment, which is not in many foreign countries, for some reason is not distributed).
And here on the scene there are organizations for collective management of rights (they are also “collective managers”), which are authorized to collect money from users and distribute to the right holders. The Russian authors' society is engaged in collections in favor of the authors and cinema composers (the very same “taper” money). RAO is not the only such organization, it has a couple of “satellites”, it is WIPO , which deals with related rights, and “Mikhalkovskiy” RSP , collecting “money from discs”. A distinctive feature of these three organizations is that they have accreditation for fees , that is, they can raise money for all authors and rightholders, including those who did not give them that right. WIPO and RSP were created with the direct participation of RW, so that all three of them represent a kind of “copyright oligopoly”.
There are a number of other "collective managers", competitors of RAO and its entourage. Since they do not have accreditation, they can represent only those authors who have withdrawn their rights from the management of accredited organizations and transferred them to them.
Now let's go back to our "execution". Because of the wording in the Civil Code, “public performance” is both a “live concert” and an included radio in an open access establishment. If we take into account the issues of the transfer of rights to works, we can distinguish four main types of "performance".
"Collective managers" are intermediary organizations. Their main goal is assistance in fundraising, when the rights of authors and other rightholders are individually challenged. When the author and the performer can agree with each other personally - mediation, it would seem, is not required. This is where the “concert organizer” comes into play. Its task is how to receive “copyright” from the performer on the songs performed, and then to pay the deductions for radioactive waste for them. Then RAO will give the money to the performer, leaving himself a percentage. For mediation. If the organizer immediately gave the performer both the author's fee and the fee for the performance, the RAO simply would have nothing to do here. If the performer himself had agreed on the payment of remuneration with the organizer and songwriters, this would also upset the RAO. Therefore, it took the necessary measures: the standard contracts concluded with right holders contain clauses (7 b), in which the right holder undertakes not to receive remuneration directly, but to do so only through RW.
But here's the bad luck: the law does not know any “concert organizer”. And that this “organizer” must pay because they allegedly “use” works in the Civil Code, too, there is nothing. The best minds of RAO solved this problem. As you remember, “public performance” in Article 1270 of the Civil Code is called “the presentation of a work in live performance or by means of technical means”. And in article 1313, the “performer” is called “a citizen whose creative work created the performance, an artist-performer (actor, singer, musician, dancer or other person who plays a role, reads, recites, sings, plays a musical instrument or otherwise participates in the performance of works of literature, art or folk art . "
Based on the comparison of these formulations, the lawyers of RAO concluded that the “presentation” and the “performance” are two different things, and that the organizer of the concert “represents” the work, and not the performer. The fact that this conclusion does not follow from the text of the law, lawyers, of course, did not bother. Such an interpretation allows RAO inspectors not to go into such trifles as the relationship between performers and impresario, and also increases their chances of getting money without problems for the concert: the one who collects them should pay.
Like any pseudo-legal scheme, in practice, the whole design fails. A very recent example is the kite-festival “Free Wind”: its organizer Oleksandr Ischenko has received claims from the local branch of the Russian Academy of Education, according to the standard scheme : “the concert organizer pays”. Ishchenko reacted to the claims somehow lightly, did not appear at the court, and eventually received a decision, which he was obliged to pay thirty thousand rubles. However, Ischenko himself argued that RAO really approached him, but he was not going to pay anything, since the invited DJs had to play only their own compositions.
The only song, because of which the trial broke out, the artists sang " impromptu ", picking up the chords "by ear". And here the question arises: why is the organizer forced to answer for everything sung from the stage, although he does not sing? Often he cannot even determine the repertoire and dictate to the singers what to sing.
Another example from the same area is claims to the organizers of the Grushinsky Festival, at which RAO filed a lawsuit because of the author's fee. According to the RAO press release , it decided to sue for the best reasons: “The list of participants of the festival is not necessary for RAO to form complaints against them, but to clarify the question of which of them is supposed to pay the collected remuneration for using their own music. In addition, at the court hearing it was not about the list of participants as such, but about the list of musical works performed by the participants and their authors. Nowadays, RAO never claimed that claims had arisen against the festival participants themselves ... It was for listing that festival participants who played their own songs on it, RAO and took measures to collect the author’s remuneration through the courts. ”
“Bard Festivals”, as a rule, represent one or several scenes and tents around them. The songs are performed not only on the stages, but also at the tents, so the organizers, of course, cannot follow what exactly is being sung. And the paradox turns out: if the concert organizer uses songs, then why doesn’t he know exactly what he used? And this happens because nothing, in fact, he does not use. And responsibility for the actions of third parties can only be carried out in cases when it is specifically stated in the law. Whatever the best minds say about this.
As a rule, in their explanations concerning such cases, the representatives of RAO say about the “requirements of the law”, which the organizers of the company did not comply with, and because of this they suffered. But in the law, as we have already found out, there is no “concert organizer”. This concept was enshrined in one of the resolutions of the Government, which is also associated with a long history. The decree determined the minimum remuneration rates to be paid for the use of works. But not only them: the third section established who should pay such a reward.
Concerning the concerts, the following was stated there: “The payers of the author's remuneration for public performance of works are legal entities and individuals, including state, cooperative, private, small and joint ventures, associations and foundations that carry out or organize public performance of works: theaters (including theater studios, amateur amateur theaters), concert and circus associations, performing groups, philharmonic societies, circuses, clubs, houses and palaces of culture, houses of officers, Oven ensembles and orchestras, discos and dance floors, parks, gardens, stadiums, sports and cinema and concert halls, cinemas and video lounges, bars, cafes, restaurants and other catering establishments, boarding houses, rest homes and sanatoriums, public services, passenger transport and others, as well as organizations, reproducing published works of literature and art in broadcasts. "
The decree was passed in 1994, and has been applied for thirteen years. However, in 2007, the Supreme Court, at the request of the Cinema-Mir limited liability company, canceled its third section . In the opinion of the Supreme Court, the Government, pointing out who exactly should pay, has exceeded its authority. According to the Supreme Court, the obligations of the parties in such an agreement are determined on the basis of the relations between them and who owns the rights to the work. However, the entry into force of the fourth part of the Civil Code was not far off. A year after its commencement, the Supreme and Higher Arbitration Courts issued a joint ruling explaining its provisions. And in it, they actually again legalized the notion of “organizer”, which is responsible for everything:
“The person performing the public performance of the work (including when it is presented in live performance) is a legal entity or an individual who organizes a public performance in a place open to public access, or in a place where there are a significant number of persons not belonging to the usual family circle, that is, a person who takes the initiative and responsibility for holding the relevant event. It is this person who must conclude an agreement on granting him the right to publicly perform the work with the rightholder or rights management organization on a collective basis and pay the due remuneration . ”
As it is easy to see, this interpretation actually repeats what was written in the abolished third section of the provision on minimum bids. The Supreme Court, therefore, turned out to be the true master of his word, taking him back when needed.
Well, let's summarize. Indeed, when you see reports that RAO “forbade someone to sing their songs,” they are not true. Claims of RAO are directed precisely to the organizer of the event, so everything that it claims in such cases is true. But only this truth, unfortunately, hides even more sophisticated lies ...
RAO, which has recently been closely following what is being written about it on the Internet, promptly publishes on its website press releases for “representatives of various media and the blogosphere” on such incidents. For example, there are already three messages about “Lube” and “Scorpions”: the general press release , the positions of the German society GEMA and the producer center of Igor Matvienko . This site is unpopular and few have read these messages. But this can and should not be done: the position of the RAO for such conflicts is always the same. It boils down to the fact that no one thought the artist should be forbidden to sing his (or anyone else's) songs: supposedly the organizer of the concert, to which RAO claims are sent, must pay royalties ...
Get ready, under the cut a long, but quite interesting article
')
What is “public performance”?
In order to clarify the reason for such conflicts, let us start from the very beginning: the question of what constitutes a concert from the point of view of legislation. As you know, the copyright to the newly created work arise without following any formalities. It is not necessary to register it anywhere in order to start using its rights: the author can do it on his own, without consulting anyone, and without asking anyone for permission. But if he wants to give this right to someone else, you will need to enter into a licensing agreement. At the same time, the agreement should indicate the ways of using the work, which are listed in article 1270 of the Civil Code of the Russian Federation.
Singing a song at a concert is called in this article “public performance”: “ public performance of the work, that is, the presentation of the work in live performance or with the help of technical means (radio, television and other technical means), as well as the display of an audiovisual work (with or without accompaniment). sound accompaniment) in a place open to the public, or in a place where there is a significant number of persons who do not belong to the ordinary family, regardless of whether the work is perceived in its place detecting or display or in another place simultaneously with the presentation or display of the work. "
As can be seen from this wording, it includes not only “live” performances, but also playing music with the radio running, TV, and just from the disks. In addition, the author’s remuneration must also be paid for the “public performance” of the film’s music, which occurs when the film itself is shown. These are the so-called “taper” deductions, which have their origins since the days of silent films. They serve as a matter of frustration for the rest of the film’s co-authors, who don’t receive any deductions, so periodically there are calls to make such payments for the director and the scriptwriter. (Which is typical, appeals to cancel this "obsolete" payment, which is not in many foreign countries, for some reason is not distributed).
And here on the scene there are organizations for collective management of rights (they are also “collective managers”), which are authorized to collect money from users and distribute to the right holders. The Russian authors' society is engaged in collections in favor of the authors and cinema composers (the very same “taper” money). RAO is not the only such organization, it has a couple of “satellites”, it is WIPO , which deals with related rights, and “Mikhalkovskiy” RSP , collecting “money from discs”. A distinctive feature of these three organizations is that they have accreditation for fees , that is, they can raise money for all authors and rightholders, including those who did not give them that right. WIPO and RSP were created with the direct participation of RW, so that all three of them represent a kind of “copyright oligopoly”.
There are a number of other "collective managers", competitors of RAO and its entourage. Since they do not have accreditation, they can represent only those authors who have withdrawn their rights from the management of accredited organizations and transferred them to them.
Now let's go back to our "execution". Because of the wording in the Civil Code, “public performance” is both a “live concert” and an included radio in an open access establishment. If we take into account the issues of the transfer of rights to works, we can distinguish four main types of "performance".
- First of all, the same included radio (TV, CD, etc.) In this case, the owner of the institution in which it is turned on cannot independently agree with all the rights holders and obtain permission to use the songs. Therefore, it needs the mediation of “collective managers”, and two of them at once, RAO and WIPO. The first organization collects royalties for copyright holders, and the second for holders of related rights, which include performers and phonogram manufacturers.
- The second typical situation is “live music” in institutions of a higher class, when some locally famous musicians perform hits for visitors. Neither can these musicians agree with the right holders, so here the mediation of “collective managers” is also necessary. But since no phonograms are used in “live performance”, then there is no need to pay at WIPO - only at RAO.
- Situation three - the performance of a famous group or artist, who or who perform songs that are not composed by them. The situation is also widespread when some of the performers are songwriters, and some are not; this happens when songs are written by members of a musical group whose composition changes, in the case of Deep Purple it was just that. Here the situation is complicated: the performers can negotiate with the authors themselves. Everything will be determined by a specific agreement between them. From the point of view of the law, a musical group is a “collective pseudonym,” the same as, for example, Kukryniksy or Kozma Prutkov. And the law allows any of the co-authors to use the work at their discretion, unless otherwise provided by agreement between the co-authors. Therefore, in order to obtain permission to use the work, in the general case it is enough to contact any of the co-authors. In this case, the mediation of collective management organizations is necessary only if the right to collect remuneration for the use of works is given to it by contract. That is, the rightholder and the performer may not trust the CCOU mediation, but receive a fee independently. In the second paragraph of Article 1243 of the Civil Code, this is expressly provided: “If the licensing agreement with the user is entered into directly by the right holder, the collective rights management organization may collect remuneration for the use of copyright and related rights objects only under the condition that it is expressly provided for by the specified agreement.” More In addition: the author may not be entitled to receive remuneration for public performance at all, since the emergence of copyright is determined by the legislation of the country of creation oizvedeniya. This applies, for example, to the authors of the music of American films: there is simply no rewarding reward in the United States. (However, RAO collects money for them).
- And finally, the case when the performer is also the author of the songs performed. Here, in general, no one needs to negotiate with anyone, because, as we remember, he himself can use his rights. Including through the public performance of his own work. But everything is simple only in theory. It turned out that the Russian Copyright Society has its own view on the interpretation of laws.
About the dangers of mediation.
"Collective managers" are intermediary organizations. Their main goal is assistance in fundraising, when the rights of authors and other rightholders are individually challenged. When the author and the performer can agree with each other personally - mediation, it would seem, is not required. This is where the “concert organizer” comes into play. Its task is how to receive “copyright” from the performer on the songs performed, and then to pay the deductions for radioactive waste for them. Then RAO will give the money to the performer, leaving himself a percentage. For mediation. If the organizer immediately gave the performer both the author's fee and the fee for the performance, the RAO simply would have nothing to do here. If the performer himself had agreed on the payment of remuneration with the organizer and songwriters, this would also upset the RAO. Therefore, it took the necessary measures: the standard contracts concluded with right holders contain clauses (7 b), in which the right holder undertakes not to receive remuneration directly, but to do so only through RW.
But here's the bad luck: the law does not know any “concert organizer”. And that this “organizer” must pay because they allegedly “use” works in the Civil Code, too, there is nothing. The best minds of RAO solved this problem. As you remember, “public performance” in Article 1270 of the Civil Code is called “the presentation of a work in live performance or by means of technical means”. And in article 1313, the “performer” is called “a citizen whose creative work created the performance, an artist-performer (actor, singer, musician, dancer or other person who plays a role, reads, recites, sings, plays a musical instrument or otherwise participates in the performance of works of literature, art or folk art . "
Based on the comparison of these formulations, the lawyers of RAO concluded that the “presentation” and the “performance” are two different things, and that the organizer of the concert “represents” the work, and not the performer. The fact that this conclusion does not follow from the text of the law, lawyers, of course, did not bother. Such an interpretation allows RAO inspectors not to go into such trifles as the relationship between performers and impresario, and also increases their chances of getting money without problems for the concert: the one who collects them should pay.
Like any pseudo-legal scheme, in practice, the whole design fails. A very recent example is the kite-festival “Free Wind”: its organizer Oleksandr Ischenko has received claims from the local branch of the Russian Academy of Education, according to the standard scheme : “the concert organizer pays”. Ishchenko reacted to the claims somehow lightly, did not appear at the court, and eventually received a decision, which he was obliged to pay thirty thousand rubles. However, Ischenko himself argued that RAO really approached him, but he was not going to pay anything, since the invited DJs had to play only their own compositions.
The only song, because of which the trial broke out, the artists sang " impromptu ", picking up the chords "by ear". And here the question arises: why is the organizer forced to answer for everything sung from the stage, although he does not sing? Often he cannot even determine the repertoire and dictate to the singers what to sing.
Another example from the same area is claims to the organizers of the Grushinsky Festival, at which RAO filed a lawsuit because of the author's fee. According to the RAO press release , it decided to sue for the best reasons: “The list of participants of the festival is not necessary for RAO to form complaints against them, but to clarify the question of which of them is supposed to pay the collected remuneration for using their own music. In addition, at the court hearing it was not about the list of participants as such, but about the list of musical works performed by the participants and their authors. Nowadays, RAO never claimed that claims had arisen against the festival participants themselves ... It was for listing that festival participants who played their own songs on it, RAO and took measures to collect the author’s remuneration through the courts. ”
“Bard Festivals”, as a rule, represent one or several scenes and tents around them. The songs are performed not only on the stages, but also at the tents, so the organizers, of course, cannot follow what exactly is being sung. And the paradox turns out: if the concert organizer uses songs, then why doesn’t he know exactly what he used? And this happens because nothing, in fact, he does not use. And responsibility for the actions of third parties can only be carried out in cases when it is specifically stated in the law. Whatever the best minds say about this.
The most independent court in the world
As a rule, in their explanations concerning such cases, the representatives of RAO say about the “requirements of the law”, which the organizers of the company did not comply with, and because of this they suffered. But in the law, as we have already found out, there is no “concert organizer”. This concept was enshrined in one of the resolutions of the Government, which is also associated with a long history. The decree determined the minimum remuneration rates to be paid for the use of works. But not only them: the third section established who should pay such a reward.
Concerning the concerts, the following was stated there: “The payers of the author's remuneration for public performance of works are legal entities and individuals, including state, cooperative, private, small and joint ventures, associations and foundations that carry out or organize public performance of works: theaters (including theater studios, amateur amateur theaters), concert and circus associations, performing groups, philharmonic societies, circuses, clubs, houses and palaces of culture, houses of officers, Oven ensembles and orchestras, discos and dance floors, parks, gardens, stadiums, sports and cinema and concert halls, cinemas and video lounges, bars, cafes, restaurants and other catering establishments, boarding houses, rest homes and sanatoriums, public services, passenger transport and others, as well as organizations, reproducing published works of literature and art in broadcasts. "
The decree was passed in 1994, and has been applied for thirteen years. However, in 2007, the Supreme Court, at the request of the Cinema-Mir limited liability company, canceled its third section . In the opinion of the Supreme Court, the Government, pointing out who exactly should pay, has exceeded its authority. According to the Supreme Court, the obligations of the parties in such an agreement are determined on the basis of the relations between them and who owns the rights to the work. However, the entry into force of the fourth part of the Civil Code was not far off. A year after its commencement, the Supreme and Higher Arbitration Courts issued a joint ruling explaining its provisions. And in it, they actually again legalized the notion of “organizer”, which is responsible for everything:
“The person performing the public performance of the work (including when it is presented in live performance) is a legal entity or an individual who organizes a public performance in a place open to public access, or in a place where there are a significant number of persons not belonging to the usual family circle, that is, a person who takes the initiative and responsibility for holding the relevant event. It is this person who must conclude an agreement on granting him the right to publicly perform the work with the rightholder or rights management organization on a collective basis and pay the due remuneration . ”
As it is easy to see, this interpretation actually repeats what was written in the abolished third section of the provision on minimum bids. The Supreme Court, therefore, turned out to be the true master of his word, taking him back when needed.
Well, let's summarize. Indeed, when you see reports that RAO “forbade someone to sing their songs,” they are not true. Claims of RAO are directed precisely to the organizer of the event, so everything that it claims in such cases is true. But only this truth, unfortunately, hides even more sophisticated lies ...
Source: https://habr.com/ru/post/120886/
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