Lawyer Nadezhda Mukhina on the dispute between RAO and DK Lensoveta
27 March 2012
Play your own music and pay for it
Collective management organizations (OCUP in Russian) are meant to facilitate interactions between right holders (composers, writers, directors, performing musicians, motion picture companies) and the users of the works. However, in a conflict between the St. Petersburg Palace of Culture and the Russian Authors Society (RAO in Russian), as in hundreds of other cases, the latter has attempted to monopolize the rights of another organization. Moreover, domestic OCUPants take remuneration out of cafeterias, restaurants, taxi drivers, and even individuals wishing to listen to some great music during a home party.
In May 2010, a concert of German band Lacrimosa was held at DK Lensoveta. St. Petersburg fans took great satisfaction in Tilo Volff performing a number of his own songs. However, RAO deemed this “incautious act” as an infringement of his own copyrights! Any person shall pay compensation in accordance with the law, which may amount to 5 million roubles, and representatives of RAO demanded this compensation to be paid to them, instead of the German singer.
The Russian Authors Society turned to the court, but the latter deemed their claims as unfounded. Judges came to a conclusion that in this case there is no fact of infringement of exclusive rights to the music piece. An attempt to re-open the case in cassation board was unsuccessful – the municipal court of St. Petersburg did not find grounds for compensation in favor of OCUPants.
The decision entered into effect, however, Natalia Abramova, a lawyer who represented the interests of RAO in the dispute between RAO and community center DK Lensoveta, told a BaltInfo reporter that the case is not closed yet. According to her, in the legal sense, public performance as such was made by the organizer of the concert (which collected money from spectators), rather than by Tilo Vulff. Therefore the organizer should “share money” with OCUP. This being said, she believes that only RAO should manage the German musician’s copyright.
The experts interviewed refuted such arguments. “An author can voluntarily conclude a contract for copyright management with RAO, aiming to provide for qualified defense of such rights,” explained Ekaterina Smirnova, a lawyer of Kachkin & Partners. “In this case, the Society will undertake to represent author's interests; it means that they will also undertake to receive remuneration and defense on behalf of the author in court. This being said, the author is well entitled to resort to services of such organizations and conclude contracts independently with persons willing to make public performance of his works”.
Nadezhda Mukhina, a lawyer of S&K Vertical, gives the rights of RAO a more broad interpretation. She believes that RAO is entitled to defend even those right holders who did not enter into contractual relations with RAO. Should an infringement be committed while an author performed his own music piece at a concert (for instance, he was not paid the royalty fee, stipulated by the contract), the claim filed by the Russian Authors Society shall be reasonable. Should no infringement be committed, claims of Authors Society shall be deemed as unfounded”.
Valery Mordvinov, Vice President of the Association of Patent Specialists of St.-Petersburg believes that such claims are sheer rubbish. “Perhaps, they were prepared by the “fifth column” inside RAO, so as to discredit their own managers,” He said with irony.
Shall We Split the Bottle Four Ways?
According to the recently published report of RAO, authors only get 57% of money raised by the Society. Another 20 % fall into “commission” collected by RAO to compensate for their expenses, the rest of the sum are taxes, and payments in favor of “absent” authors (the most part of these monies is later retained by RAO).
The tax collectors derive largest portion of their revenues (almost two thirds) out of fees for “public performance” of works of autorship. These payments are to be made by every organization wishing to entertain clients with music, i.e., cafeterias, restaurants, clubs, hairdressing saloons, offices of vital records, recreation parks, sports institutions, etc. For instance, dance studios are obliged to allocate 2% of sold subscriptions, taxi drivers - 500 roubles monthly per each taxi cab, each restaurant with seating capacity of 100 persons - 6 thousand roubles, etc. to the Russian Authors Society. These fees for “public performance” of works of autorship are collected even from hotels (up to 29 roubles per room) equipped with TV sets (because these can be used to broadcast films, concerts, etc).
Moreover, even individuals organizing a home party and organizers of school’s amateur concert parties should pay the fee to the Russian Authors Society. The point is, any performance attended by “significant number of people which are non-family members (including listening to radio broadcasts, replaying via a CD players, etc.), is deemed to be “public performance”. It is evident that schoolmates, fellow workers, family friends are not family members, and RAO deems the presence of more than 3 (!) individuals as a “significant number of people”.
The tax collectors did not file suits against individuals (not entrepreneurs). However, they managed to charge a choir of veterans for a hefty sum: veterans had the imprudence to sing “Smuglyanka”, “Len moy len”, “Ot geroyev bylykh vremen” and other songs of war years on the eve of the festival, which is a sacred day for them and for the majority of Russians, but a profitable event for OCUPants