Russian online music market awaiting X hours
On September 1, as is known, several amendments to the RF Law “On Copyright and Related Rights” come into force. From now on, the Runet music stores will be in an even more ambiguous position than they are now. But two days before hour X, there are only hypotheses about how to be an online seller in practice. Is it possible to legalize a business without cutting off most of the “goods” of copyright music content? Where and how can this be done? What are the terms and conditions? There are a lot of questions, and all of them are unanswered.
Unity in the vision of the situation is not even among experts in the field of copyright. This became clear after the Internet press conference "Copyright and Business", held by RBC on August 28. Anyway, the public heard opinions about the problem of Igor Pozhitkov, Head of the Russian Representative Office of the International Federation of Phonogram Manufacturers (IFPI), Mikhail Fedotov, Ambassador Extraordinary and Plenipotentiary of Russia to UNESCO, Igor Mamatov, Chairman of the Board of NP FAIR and Stanislav Petrovsky, Head of the Expert Group of the Committee on e-commerce NAUET.
In his opening remarks, Mikhail Fedotov noted that the fateful amendments were adopted back in 2004. The legislator has given a fairly long time to prepare for the new conditions, and this fact suggests that the amendments are serious. “By adopting these amendments, our legislator, I hope, radically dissociates himself from those ideas that are quite often found on the Internet,” said Mikhail. - According to them, any work that has fallen into the Internet becomes public domain, and all rights to it disappear somewhere. In my opinion, this position is wrong, since it exactly corresponds to the old Bolshevik formula “art belongs to the people”. I believe this formula undermines the foundation of intellectual creativity. Because the creator - whether the author or the performer - should be able to earn their creativity, and not ask for alms from the state or from anyone else. ”
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Igor Pozhitkov (IFPI), taking the floor, drew the attention of the audience to the opinion of the right holders, according to which even the current law partly regulates the use of phonograms on the Internet. “Any reproduction of phonograms without the consent of the copyright holders is impossible,” he noted, adding that the IFPI considers the “cover” scheme as licenses of societies for collective management of rights to cheat. “Why do I say so confidently that even the current law protects the rights of phonogram producers? - Because it was a resolution of the plenum of the Supreme Court of the Russian Federation, which clearly stated and deciphered: sites engaged in reproducing objects of protection without a license of the copyright holders, violate the law "On Copyright and Related Rights."
Responding to questions raised during the conference, Igor Pozhitkov elaborated on the concept of a "society for collective management of rights." According to him, the law provides a clear set of criteria to which these structures must comply: “The organization must be created directly by the right holders and act on the basis of contracts with these right holders.”
“We don’t need to consider collective management as a panacea,” he said and cited the example of a Western problem solving mechanism. - All over the world, in addition to copyright societies, at the business level, all issues are fairly simply resolved between individual members of the Internet community and recording companies ... You come and get a direct contract with the producers of phonograms, which closes all issues in relations with authors and performers. ”
Then Igor Pozhitkov emphasized that the balance of interests of national and transnational companies in the field of intellectual property is directly in the law, which “treats the same to both of them”, and also in judicial practice that is beginning to emerge, and in criminal cases, open with respect to sites dealing with the illegal distribution of phonograms.
The position of the head of the IFPI office during the discussion was for the most part opposed to the opinion of Stanislav Petrovsky from NAUET. Stanislav said that the development of the market is impossible without clear rules for legalization, while at the same time emphasizing the need for collective rights management organizations. “The situation when each store will contact tens of thousands of rightholders and try to conclude an agreement with them will technically nullify the entire business,” he noted. “Therefore, we believe that some adjustments are necessary.”
To Igor Pozhitkov's remark on foreign practice of resolving issues of law with record companies, Stanislav Petrovsky replied: “In Russia, as we see, a serious conflict has arisen between right holders and owners of online stores, for several reasons they cannot agree. But the conflict must somehow be resolved. It appears that collective rights management organizations and professional associations that would represent the interests of the two parties could play a significant role in this matter. Because we should not forget that, in addition to the interests of rights holders, there are interests of society. ” Further judgments of Stanislav Petrovsky concerned the formation of a “single information space” and the dissemination of current cultural objects throughout the country, the path of which can be blocked if the amendments are implemented according to IFPI schemes. Stanislav also noted that the Western recording industry should understand that the Russian market has its own realities, and its prices cannot be at the usual level for this industry.
Igor Pozhitkov called this point of view on the problem “demagogy mixed with a number of principles contrary to the current law, the logic of man and business”: “In fact, there are legal sites and stores in the Internet space of Russia that work under direct agreements with copyright holders . That is, a part of your esteemed online community has managed to obtain such rights. The volume of phonograms on these sites is another question. ” Unfortunately, Igor did not touch him.
Perhaps the most important question of the conference came closer to its end - “What can you advise business on the eve of September 1?”
Igor Pozytkov, responding to him, said that “representatives of Russian business should be contacted, first of all, with domestic copyright holders - the Russian Authors' Society or the National Federation of Phonogram Producers. “In fact, the range of copyright holders is not as large as it might seem,” he said. “In these organizations they will give advice on where to go and with whom to conclude an agreement on the use of phonograms on the Internet.”
Stanislav Petrovsky noted the following: “From September 1, of course, it is necessary to conclude licensing agreements for the entire repertoire provided on the Internet.” He also said that at present there is not a single court decision confirming that collective management societies cannot issue general licenses.
Mikhail Fedotov tried to judge the IFPI and NAUET and understand their different understanding of the situation: “I believe that both opponents are right, but each has his own way. Because really, then rights management, which could be earlier, today can no longer be. Previously, there was a rule according to which it was not necessary to ask the right holder, in particular - the phonographic company or the performer, when using a phonogram. It was necessary only to pay him a reward. Today, in a different way, such permission is needed. But the question is: do you need to ask this phonographic company directly? Do the performer? Or a society for the collective management of the rights of phonographers and performers? I think that our law gives an unequivocal answer to this question, speaking to societies for the collective management of copyright and related rights .... It is possible to conclude direct licensing agreements with rights holders, it is possible to conclude equally legal agreements with societies for collective management of rights. The main thing is that these societies really represent rightholders, work for them and deduct remunerations due to them. Unfortunately, this happens very rarely in our country. And in civilized countries, this is always the case. ”
In the final part of the meeting Igor Mamatov vividly expressed his point of view: “It does not occur to anyone that the Russian authors' society will not issue a general license for broadcasting, television broadcasting, discos, music on the plane and the train. What, train, disco or concert organization will conclude an agreement with each author? Imagine - a concert is going on, a performer is being asked to sing a song for an encore, and he says: "Sorry, but we don’t have this song in the license, some time next." Or there is a radio application program, and the DJ says: “Now, for a second, we will try to find the right holder , and start searching for it at a breakneck pace. A copyright holder is in Hawaii, he is called to give a license. What can he answer? - "Fuck you, leave me alone!" He does not need this license. ”
“A couple of years ago I talked with the owner of a large ringtone company,” continues Igor. - He explained to me that he would pay not 10 - a maximum of 15% for hit compositions, but 30 or even 40%, if it were not necessary to pay for each rights holder separately, keep a staff of 20 managers who conclude contracts, a staff of system administrators, who prepare each report in its own form, and the accounting department, which should track and recount all this. ”
“There are many different options for controlling websites and negotiating prices,” said Igor Mamatov. - You can, of course, go and initiate criminal proceedings with real portals that are visible and do not hide - they don’t hide their legal entity or their owners. You can sue them instead of going and closing at least one truly pirated site. One can admire the fact that legal online stores have appeared, although some of them, having acquired rights from an author, performer or phonographist, begin to sell them, acting as an aggregator. That's what's scary really. ”
“At one of the UNESCO conferences, they stressed that the Internet is either a compulsory license, which is undesirable, or collective management of rights,” concluded Igor Mamatov. “To make the site, if it is not thematic, to conclude hundreds of thousands of contracts is unrealistic.”
Igor Pozhitkov ended his speech on an ominous note: “Regarding the producers of phonograms and the sphere of related rights, I declare with all responsibility that there is no organization for the collective management of rights on the Internet in this area. Therefore, dear businessmen of the Russian Internet, if you want to get problems, take licenses from collective management organizations of phonogram producers. And do not be surprised.
Unity in the vision of the situation is not even among experts in the field of copyright. This became clear after the Internet press conference "Copyright and Business", held by RBC on August 28. Anyway, the public heard opinions about the problem of Igor Pozhitkov, Head of the Russian Representative Office of the International Federation of Phonogram Manufacturers (IFPI), Mikhail Fedotov, Ambassador Extraordinary and Plenipotentiary of Russia to UNESCO, Igor Mamatov, Chairman of the Board of NP FAIR and Stanislav Petrovsky, Head of the Expert Group of the Committee on e-commerce NAUET.
In his opening remarks, Mikhail Fedotov noted that the fateful amendments were adopted back in 2004. The legislator has given a fairly long time to prepare for the new conditions, and this fact suggests that the amendments are serious. “By adopting these amendments, our legislator, I hope, radically dissociates himself from those ideas that are quite often found on the Internet,” said Mikhail. - According to them, any work that has fallen into the Internet becomes public domain, and all rights to it disappear somewhere. In my opinion, this position is wrong, since it exactly corresponds to the old Bolshevik formula “art belongs to the people”. I believe this formula undermines the foundation of intellectual creativity. Because the creator - whether the author or the performer - should be able to earn their creativity, and not ask for alms from the state or from anyone else. ”
')
Igor Pozhitkov (IFPI), taking the floor, drew the attention of the audience to the opinion of the right holders, according to which even the current law partly regulates the use of phonograms on the Internet. “Any reproduction of phonograms without the consent of the copyright holders is impossible,” he noted, adding that the IFPI considers the “cover” scheme as licenses of societies for collective management of rights to cheat. “Why do I say so confidently that even the current law protects the rights of phonogram producers? - Because it was a resolution of the plenum of the Supreme Court of the Russian Federation, which clearly stated and deciphered: sites engaged in reproducing objects of protection without a license of the copyright holders, violate the law "On Copyright and Related Rights."
Responding to questions raised during the conference, Igor Pozhitkov elaborated on the concept of a "society for collective management of rights." According to him, the law provides a clear set of criteria to which these structures must comply: “The organization must be created directly by the right holders and act on the basis of contracts with these right holders.”
“We don’t need to consider collective management as a panacea,” he said and cited the example of a Western problem solving mechanism. - All over the world, in addition to copyright societies, at the business level, all issues are fairly simply resolved between individual members of the Internet community and recording companies ... You come and get a direct contract with the producers of phonograms, which closes all issues in relations with authors and performers. ”
Then Igor Pozhitkov emphasized that the balance of interests of national and transnational companies in the field of intellectual property is directly in the law, which “treats the same to both of them”, and also in judicial practice that is beginning to emerge, and in criminal cases, open with respect to sites dealing with the illegal distribution of phonograms.
The position of the head of the IFPI office during the discussion was for the most part opposed to the opinion of Stanislav Petrovsky from NAUET. Stanislav said that the development of the market is impossible without clear rules for legalization, while at the same time emphasizing the need for collective rights management organizations. “The situation when each store will contact tens of thousands of rightholders and try to conclude an agreement with them will technically nullify the entire business,” he noted. “Therefore, we believe that some adjustments are necessary.”
To Igor Pozhitkov's remark on foreign practice of resolving issues of law with record companies, Stanislav Petrovsky replied: “In Russia, as we see, a serious conflict has arisen between right holders and owners of online stores, for several reasons they cannot agree. But the conflict must somehow be resolved. It appears that collective rights management organizations and professional associations that would represent the interests of the two parties could play a significant role in this matter. Because we should not forget that, in addition to the interests of rights holders, there are interests of society. ” Further judgments of Stanislav Petrovsky concerned the formation of a “single information space” and the dissemination of current cultural objects throughout the country, the path of which can be blocked if the amendments are implemented according to IFPI schemes. Stanislav also noted that the Western recording industry should understand that the Russian market has its own realities, and its prices cannot be at the usual level for this industry.
Igor Pozhitkov called this point of view on the problem “demagogy mixed with a number of principles contrary to the current law, the logic of man and business”: “In fact, there are legal sites and stores in the Internet space of Russia that work under direct agreements with copyright holders . That is, a part of your esteemed online community has managed to obtain such rights. The volume of phonograms on these sites is another question. ” Unfortunately, Igor did not touch him.
Perhaps the most important question of the conference came closer to its end - “What can you advise business on the eve of September 1?”
Igor Pozytkov, responding to him, said that “representatives of Russian business should be contacted, first of all, with domestic copyright holders - the Russian Authors' Society or the National Federation of Phonogram Producers. “In fact, the range of copyright holders is not as large as it might seem,” he said. “In these organizations they will give advice on where to go and with whom to conclude an agreement on the use of phonograms on the Internet.”
Stanislav Petrovsky noted the following: “From September 1, of course, it is necessary to conclude licensing agreements for the entire repertoire provided on the Internet.” He also said that at present there is not a single court decision confirming that collective management societies cannot issue general licenses.
Mikhail Fedotov tried to judge the IFPI and NAUET and understand their different understanding of the situation: “I believe that both opponents are right, but each has his own way. Because really, then rights management, which could be earlier, today can no longer be. Previously, there was a rule according to which it was not necessary to ask the right holder, in particular - the phonographic company or the performer, when using a phonogram. It was necessary only to pay him a reward. Today, in a different way, such permission is needed. But the question is: do you need to ask this phonographic company directly? Do the performer? Or a society for the collective management of the rights of phonographers and performers? I think that our law gives an unequivocal answer to this question, speaking to societies for the collective management of copyright and related rights .... It is possible to conclude direct licensing agreements with rights holders, it is possible to conclude equally legal agreements with societies for collective management of rights. The main thing is that these societies really represent rightholders, work for them and deduct remunerations due to them. Unfortunately, this happens very rarely in our country. And in civilized countries, this is always the case. ”
In the final part of the meeting Igor Mamatov vividly expressed his point of view: “It does not occur to anyone that the Russian authors' society will not issue a general license for broadcasting, television broadcasting, discos, music on the plane and the train. What, train, disco or concert organization will conclude an agreement with each author? Imagine - a concert is going on, a performer is being asked to sing a song for an encore, and he says: "Sorry, but we don’t have this song in the license, some time next." Or there is a radio application program, and the DJ says: “Now, for a second, we will try to find the right holder , and start searching for it at a breakneck pace. A copyright holder is in Hawaii, he is called to give a license. What can he answer? - "Fuck you, leave me alone!" He does not need this license. ”
“A couple of years ago I talked with the owner of a large ringtone company,” continues Igor. - He explained to me that he would pay not 10 - a maximum of 15% for hit compositions, but 30 or even 40%, if it were not necessary to pay for each rights holder separately, keep a staff of 20 managers who conclude contracts, a staff of system administrators, who prepare each report in its own form, and the accounting department, which should track and recount all this. ”
“There are many different options for controlling websites and negotiating prices,” said Igor Mamatov. - You can, of course, go and initiate criminal proceedings with real portals that are visible and do not hide - they don’t hide their legal entity or their owners. You can sue them instead of going and closing at least one truly pirated site. One can admire the fact that legal online stores have appeared, although some of them, having acquired rights from an author, performer or phonographist, begin to sell them, acting as an aggregator. That's what's scary really. ”
“At one of the UNESCO conferences, they stressed that the Internet is either a compulsory license, which is undesirable, or collective management of rights,” concluded Igor Mamatov. “To make the site, if it is not thematic, to conclude hundreds of thousands of contracts is unrealistic.”
Igor Pozhitkov ended his speech on an ominous note: “Regarding the producers of phonograms and the sphere of related rights, I declare with all responsibility that there is no organization for the collective management of rights on the Internet in this area. Therefore, dear businessmen of the Russian Internet, if you want to get problems, take licenses from collective management organizations of phonogram producers. And do not be surprised.
Source: https://habr.com/ru/post/4341/
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