Правовое государство: теория и практика (Sep 2022)
CERTAIN ASPECTS OF USING A PHONOGRAM AS AN OBJECT OF RELATED RIGHTS
Abstract
The production of phonograms of works is a process that requires not only financial costs, but also organizational arrangements to obtain the consent of the author of a musical work, and in the case of recording a song – the author of lyrics, to record their performance as part of a new complex audio work. However, the mere authors' consent to use their musical and literary work in the production (recording) of a phonogram does not imply its further use by the manufacturer without the authors' consent. An exception is a purchase by the phonogram producer on the basis of contracts for the transfer of exclusive rights to the respective work. The article reveals an ambiguous interpretation of the provisions of Paragraph 2 of Article 1323 of the Civil Code of the Russian Federation, providing for the obligation of the phonogram producer to use it in compliance with the rights of the authors of works and the rights of performers. The respect for the rights of authors and performers is understood not only to indicate them when using a phonogram but also to obtain their consent to use it in any of the ways provided for in Part 2 of Article 1324 of the Civil Code of the Russian Federation. Purpose: to analyze the conditions for the legal use of a phonogram with the requirement established by Paragraph 2 of Article 1323 of the Civil Code of the Russian Federation to respect the rights of authors of works and the rights of performers on the examples of judicial practice. Methods: empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic; specific scientific methods: legal-dogmatic and understanding of legal norms. Results: based on the analysis of the law enforcement practice in settling disputes on claims of holders of the rights to musical and literary works to protect the violated right when placing a phonogram of a musical work by a phonogram producer or a person who acquired the exclusive right to a phonogram on the basis of a contract, the author concludes that the holder of the exclusive right to a musical work in case of the discovery of the placing on the Internet of a phonogram, an integral part of which is a musical work belonging to him, he has the right to apply to the court for protection of the violated right. His lack of rights to perform musical works and their phonograms as objects of related rights, the lack of rights to lyrics of the song is not a ground for refusing to satisfy the requirements for the protection of exclusive rights to musical works (music, song as a verbal and musical work used in the phonogram). To confirm legitimate use of a phonogram, it is necessary to provide evidence of obtaining the right not only to record (phonogram), and performance, but also to the musical work itself (with text and music), that is, both related rights and copyrights must be acquired. This is the feature that determines the legality of using a phonogram by any of the methods provided for in Part 2 of Article 1324 of the Civil Code of the Russian Federation.
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