Restaurant business and intellectual property
Currently, almost every cafe, bar, restaurant, or other similar public institutions can be seen TV where to the General public, including visitors, is transferred to stream any sports events or a specific TV channel, etc., as well as hear the performance live, or soundtrack favourite Schlager, or the hit music charts.
However, not everyone knows that a musical composition and the sound recording, and message transmission of organizations of air or cable broadcasting are objects of intellectual activity, objects of related rights (article 1304 of the civil code), which are protected on the territory of the Russian Federation, including from illegal use. Failure by owners of the specified places of obligatory rules of the organization and implementation of such activities "threatened" administrative and civil legal responsibility.
Try to figure out what requirements you must perform a "restaurateur" for legitimate "creation" of the background music and/or public display TV channels or individual programs, and some "roughness" of the legislation of the Russian Federation can help to avoid punishment.
Outset that the legislator in question regulates these issues.
In particular, the implementation of display (demonstration) by using technical means (including monitors and televisions) any communication radio and television broadcast organization, broadcasts in public places regardless of whether they actually are perceived by visitors or not, for example, broadcasting a football match in the pub, is deemed a public performance. It is in force podp. 6 of paragraph 2 of article 1330 of the civil code is one way of using such communication provided that "payment for" entrance to such places. As a General rule of the civil legislation of the Russian Federation, the use of results of intellectual activity, perhaps with permission and upon payment of the appropriate remuneration, except for certain occasions. Such is the situation with a public performance of messages of radio and TV shows in places with free admission. Such action is not recognized use. In other words, if the owner of the bar or other public institution sets the entrance fee or include the cost for the services of the television or radio to other services, he is obliged to conclude an agreement with the broadcasters and/or cable broadcasting to grant him the right to use the messages of radio and TV shows accordingly and pay the amount of the remuneration. Otherwise, such persons may be subject to civil liability at least in the form of a collection of compensation for infringement of the exclusive related rights in broadcast or cablecast transmission. Requirements about payment of indemnification of moral harm in such a situation are recognized improper way of protection, since the exclusive right is a property right (claim 1 of the Overview of court practice on cases related to the settlement of disputes about protection of intellectual property rights, approved. The Bureau of armed forces 23.09.2015)
Free entry and the absence of payment for other services cost of services for TV and/or radio broadcasting is "unique ticket" protecting "restaurateurs" from having to conclude such treaties. This conclusion follows from the abovementioned provisions of the civil legislation of the Russian Federation and is confirmed by numerous court rulings (p. 5 overview of the judicial practice in cases related to the settlement of disputes about protection of intellectual property rights, approved. The Bureau of armed forces 23.09.2015 G.; the decision of the Court on intellectual rights from 17.06.2016 year the case № A23 — 5240/2015; the decision of the Court on intellectual rights from 25.05.2016 year in the case of No. A45 – 11682/2015).
However, it should be noted that the absence of a contract with the owner on public broadcasting channels or the existence of a contract with the broadcasters and/or cable broadcasting, providing for the right personal or family viewing, are grounds for attraction of owners of public establishments to administrative responsibility under item 1 of article 7.12 of the administrative offences code of the Russian Federation (the decree of the Court for intellectual property rights from 17.06.2016 year the case № A23 — 5240/2015; the decision of the Court on intellectual rights from 25.05.2016 year in the case of No. A45 – 11682/2015). This is the value of a coin or free admission for visitors. Please note that the composition of clause 1 of article 7.12 of the administrative code offenses includes illegal use of copies of works and phonograms. The offender is charged with an administrative penalty for citizens – from 1 500 to 2 000 roubles, for officials – from 10 000 to 20 000 rubles, for legal entities – from 30 000 to 40 000 rubles with the simultaneous confiscation of counterfeit copies of works and phonograms, as well as materials and equipment used for their reproduction, and other instruments of committing such an act. The failure to identify persons – holders of related rights, as well as the appointment by the court as penalties only penalty without confiscation is absolute grounds for appeal of such decisions and their cancellation (Resolution of the Supreme Council of the Russian Federation from 23.05.2012, № 19-АД12-6).
As for the musical works and phonograms, the legislature clearly prescribed rules for their use. So, a live performance of the work or its execution with the help of technical means (radio, television and other technical means), as well as the showing of audiovisual works (accompanied or unaccompanied by sound) in a place opened for free visiting, or in a place where there is a significant number of persons not belonging to ordinary family circle, irrespective of the perceived work at his place of performance or display or in other place simultaneously with representation or display of a work is the use of works through public performance (COP. 6 paragraph 2 of the article 1270 of the civil code). When you use a musical work in any of the following method for its sponsors retain the right to remuneration (clause 3 of article 1263 of the civil code). A similar rule applies in respect of a phonogram published for commercial purposes (articles 1324, 1326 of the civil code). Public performance of such a phonogram or message her on the air or via cable shall be allowed without the permission of the owner of the exclusive right in a phonogram and of the holder of exclusive rights is fixed in that phonogram of the performance, but with payment of their compensation.
If all the same activities "restaurateurs" to create "entourage" has led to litigation associated with the illegal use of musical works and phonograms, it should be remembered that, as explained by the Plenum of the RF armed forces, the defendant must present evidence of performance of the requirements of the civil legislation of the Russian Federation (for example, documents on payment of remuneration or the provision of the right of use), and the plaintiff was to confirm the fact of belonging to him of copyright and (or) related rights or the right to their protection and the fact of the misuse of these rights by the Respondent (paragraph 14 of the Resolution of the Plenum of the RF armed forces 19.06.2015 No. 15 On "the issues arising in courts in civil cases relating to the application of the legislation on copyright and related rights"; the decision of the Court on intellectual rights from 05.10.2016 g on business №A40-102885/2015).
Note that for protection of the infringed rights of authors of musical works, the right holders of phonograms, performers can apply directly to these persons and organizations carrying out collective management of copyright and related rights (article 1242, civil code). However, in each case it is necessary to verify the credentials of such company. Absolute document confirming the competence of the mentioned entity is the agreement on the transfer of powers for management of rights concluded with the copyright holders, authors and performers. In its absence, the company engaged in collective management of copyright and related rights, the right to take actions in protection of the infringed rights of authors, performers and Rightsholders, only has state accreditation (item 3 of article 1244 of the civil code).
In addition, when considering disputes of this category in relation to the use of the phonogram, the courts shall verify the validity of the exclusive right to a particular artist and manufacturer of a phonogram in the territory of the Russian Federation. The test is carried out on the grounds listed in article 1321 article 1328 of the Civil code of the Russian Federation (for example, whether the performer is a citizen of the Russian Federation, whether carried out the first execution in the territory of the Russian Federation, etc.), as well as the grounds specified in the International Convention for the protection of performers, producers of phonograms and broadcasting organizations (Rome, 26.10.1961) (the "Rome Convention"). But the effects of the Rome Convention applies to works published before the date of its recognition by the Russian Federation (the decree of the Court for intellectual property rights from 05.10.2016 g on business №A40-102885/2015).
Another significant point, in our view, which is important when considering such disputes, is the fact of recognition or nasaline objections by the owner of the bar or other public institutions about the execution of the disputed musical works by means of devices located in the room. This "passive" tactics makes it easier for the opponent to proof and may adversely affect the solution in the form of bringing to civil responsibility (the decision of the Court on intellectual rights from 09.12.2015 on case № A32-29102/2014). At the same time, can not help but reflect that in such cases, on the contrary, a more thorough approach of the defendant – "restaurateur" to detail, for example, the focus of the court on whether or not to allow the plaintiff's evidence to reliably establish and identify the source of the sound, which made the playback, and to establish who included such equipment, can serve as a guarantee of success (the decision of the Court on intellectual rights from 05.10.2016 g on business №A40-102885/2015).
Hope this article "cases" on the use of musical "escorts" in the public institutions, as well as the implementation of display (demonstration) of radio and television programs broadcast by the broadcasting organization, will allow owners of the restaurant business as competently to organize their activities.