August 30, 2006 at 05:38The Russian online music market is waiting for hour X
On September 1, as you know, several amendments to the law of the Russian Federation “On Copyright and Related Rights” come into force. From now on, the Runet music stores will be in an even more ambiguous position than now. But two days before hour X, there are only hypotheses on how to be online sellers in practice. Is it possible to legalize a business without cutting off most of the “product”, the author’s musical content? Where and how can this be done? In what terms and conditions? A lot of questions, and all of them are unanswered.
There is no unity in the vision of the situation 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. Somehow, the public heard opinionsabout 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 NAUET Electronic Commerce Committee.
In his opening remarks, Mikhail Fedotov noted that the fateful amendments were adopted back in 2004. The legislator gave a sufficiently long time to prepare for new conditions, and this fact suggests that the amendments are serious. “By adopting these amendments, our legislator, I hope, radically dissociated himself from those ideas that can often be found on the Internet,” said Mikhail. “According to them, any work that gets on the Internet becomes the public domain, and all rights to it disappear somewhere.” In my opinion, this position is incorrect, 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 performer - must be able to earn with his work,
Igor Pozhitkov (IFPI), taking the floor, drew the attention of the audience to the opinion of copyright holders, according to which, even the current law partially regulates the use of phonograms on the Internet. “Any reproduction of phonograms without the consent of the copyright holders is impossible,” he said and added that IFPI considers the scheme of “cover” licenses of societies for collective management of rights fraudulent. “Why am I so confident in saying that even the current law protects the rights of phonogram producers? - Because there was a decision of the Plenum of the Supreme Court of the Russian Federation, which clearly indicated and deciphered: sites that reproduce objects of protection without a license from copyright holders violate the law "On Copyright and Related Rights".
Answering the questions raised during the conference, Igor Pozhitkov specified the concept of a society for collective management of rights. According to him, the law provides a clear set of criteria that these structures must meet: “An organization must be created directly by the copyright holders and act on the basis of agreements with these copyright holders.”
“There is no need to consider collective management as a panacea,” he said and cited the Western mechanism for solving the problem as an example. - All over the world, in addition to copyright societies, at the business level, all issues are quite easily resolved between individual members of the Internet community and record companies .... You come and get a direct agreement with the producers of phonograms, which covers all issues in relations with authors and performers. ”
Further, Igor Pozhitkov emphasized that the balance of interests of national and multinational companies in the field of intellectual property is directly in the law, which “treats both the same”, as well as in judicial practice, which is starting to emerge, and in criminal cases, open to sites involved in the illegal distribution of phonograms.
The position of the head of the IFPI representative during the discussion was mostly the opposite of the views of Stanislav Petrovsky from NAUET. Stanislav said that market development is impossible without clear legalization rules, while emphasizing the need for organizations for collective management of rights. “The situation when each store will contact tens of thousands of copyright holders and try to conclude an agreement with them will technically nullify the whole business,” he said. “Therefore, we believe that some adjustments are needed.”
To Igor Pozhitkov’s remark about foreign practice of resolving legal issues with record companies Stanislav Petrovsky replied: “In Russia, as we see, a serious conflict has arisen between copyright holders and owners of online stores, for some reasons they cannot agree. But the conflict must somehow be resolved. It seems that in this matter collective management organizations and professional associations that would represent the interests of both parties could play a significant role. Because we must not forget that, in addition to the interests of copyright holders, there are interests of society. ” Further judgments of Stanislav Petrovsky concerned the formation of a “single information space” and the distribution of objects of relevant culture across the country, the path of which may be blocked, if amendments will be implemented according to IFPI schemes. Stanislav also noted that the Western record industry should understand that the Russian market has its own realities, and the prices for it cannot be at the level familiar to this industry.
Igor Pozhitkov called this point of view on the problem “demagogy, implicated in a number of principles that contradict the current law, the logic of man and business”: “In fact, in the Internet space of Russia there are legal sites and shops that operate under direct agreements with copyright holders . That is, part of your reputable 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 was sounded closer to its end - “What can you advise business on the eve of September 1”?
Igor Pozhitkov, responding to him, said that “representatives of Russian business need to contact, first of all, domestic copyright holders - the Russian Authors Society or the National Federation of Phonogram Producers. “In fact, the circle of copyright holders is not as large as it might seem,” he said. “These organizations 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 there is currently no court decision confirming that collective rights societies cannot issue general licenses.
Mikhail Fedotov tried to reason with IFPI and NAUET and understand their different understanding of the situation: “I believe that both opponents are right, but each in its own way. Because really, that rights management, which could have been earlier, today can no longer be. Previously, there was a norm according to which it was not necessary to ask the copyright holder, in particular, a phonographic company or artist, when using a phonogram. All that was needed was to pay him a reward. Today - in a different way, you need to ask such permission. But the question is: do you need to ask directly from this phonographic company? At the artist? Or a society for the collective management of the rights of phonographers and performers? I think that our law gives an unambiguous answer to this question, saying societies for collective management of copyright and related rights .... It is possible to conclude direct licensing agreements with copyright holders; it is possible to conclude equally legal agreements with collective management societies. The main thing is that these societies really represent the copyright holders, work for them and deduct the remuneration due to them. Unfortunately, this happens very rarely in our country. And in civilized countries this always happens. ”
In the final part of the meeting, Igor Mamatov figuratively expressed his point of view: “It doesn’t occur to anyone that the Russian author’s society will not issue a general license for broadcasting, television broadcasting, discos, music on the plane and train. What, train, disco or concert organization will conclude a contract with each author? Imagine a concert is going on, the performer is asked to sing an encore song, and he says: “Sorry, but we don’t have this song in the license, sometime next time.” Or there’s a program on requests for radio, and the DJ says: “Now, a second, we’ll try to find the copyright holder , and begins at a frantic speed to search for it. And the copyright holder is in Hawaii, they call him asking for 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 not pay 10 - a maximum of 15% for hit songs, but 30 or even 40%, if it were not necessary to pay separately for each copyright holder, keep a staff of 20 managers who conclude contracts, the staff of system administrators, who prepare each report in its own form, and accounting, which should track and recount all this. "
“There are many different options for controlling sites and negotiating prices,” said Igor Mamatov. - You can, of course, go and initiate criminal proceedings with real portals that are not visible in plain sight - they do not hide either their legal entity or the owner-managers. You can sue them instead of going and closing at least one truly pirate site. One can admire the fact that legal online stores have appeared, although some of them, having acquired the rights from the author, artist or phonographer, begin to sell them, acting as an aggregator. That’s really scary. ”
“At a UNESCO conference, they emphasized that the Internet is either a compulsory license, which is undesirable, or collective management of rights,” concluded Igor Mamatov. “To make a site, if it’s not a thematic one, to conclude hundreds of thousands of contracts is unrealistic.”
Igor Pozhitkov finished 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 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 organizations for collective management of the rights of producers of phonograms. And do not be surprised. "
There is no unity in the vision of the situation 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. Somehow, the public heard opinionsabout 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 NAUET Electronic Commerce Committee.
In his opening remarks, Mikhail Fedotov noted that the fateful amendments were adopted back in 2004. The legislator gave a sufficiently long time to prepare for new conditions, and this fact suggests that the amendments are serious. “By adopting these amendments, our legislator, I hope, radically dissociated himself from those ideas that can often be found on the Internet,” said Mikhail. “According to them, any work that gets on the Internet becomes the public domain, and all rights to it disappear somewhere.” In my opinion, this position is incorrect, 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 performer - must be able to earn with his work,
Igor Pozhitkov (IFPI), taking the floor, drew the attention of the audience to the opinion of copyright holders, according to which, even the current law partially regulates the use of phonograms on the Internet. “Any reproduction of phonograms without the consent of the copyright holders is impossible,” he said and added that IFPI considers the scheme of “cover” licenses of societies for collective management of rights fraudulent. “Why am I so confident in saying that even the current law protects the rights of phonogram producers? - Because there was a decision of the Plenum of the Supreme Court of the Russian Federation, which clearly indicated and deciphered: sites that reproduce objects of protection without a license from copyright holders violate the law "On Copyright and Related Rights".
Answering the questions raised during the conference, Igor Pozhitkov specified the concept of a society for collective management of rights. According to him, the law provides a clear set of criteria that these structures must meet: “An organization must be created directly by the copyright holders and act on the basis of agreements with these copyright holders.”
“There is no need to consider collective management as a panacea,” he said and cited the Western mechanism for solving the problem as an example. - All over the world, in addition to copyright societies, at the business level, all issues are quite easily resolved between individual members of the Internet community and record companies .... You come and get a direct agreement with the producers of phonograms, which covers all issues in relations with authors and performers. ”
Further, Igor Pozhitkov emphasized that the balance of interests of national and multinational companies in the field of intellectual property is directly in the law, which “treats both the same”, as well as in judicial practice, which is starting to emerge, and in criminal cases, open to sites involved in the illegal distribution of phonograms.
The position of the head of the IFPI representative during the discussion was mostly the opposite of the views of Stanislav Petrovsky from NAUET. Stanislav said that market development is impossible without clear legalization rules, while emphasizing the need for organizations for collective management of rights. “The situation when each store will contact tens of thousands of copyright holders and try to conclude an agreement with them will technically nullify the whole business,” he said. “Therefore, we believe that some adjustments are needed.”
To Igor Pozhitkov’s remark about foreign practice of resolving legal issues with record companies Stanislav Petrovsky replied: “In Russia, as we see, a serious conflict has arisen between copyright holders and owners of online stores, for some reasons they cannot agree. But the conflict must somehow be resolved. It seems that in this matter collective management organizations and professional associations that would represent the interests of both parties could play a significant role. Because we must not forget that, in addition to the interests of copyright holders, there are interests of society. ” Further judgments of Stanislav Petrovsky concerned the formation of a “single information space” and the distribution of objects of relevant culture across the country, the path of which may be blocked, if amendments will be implemented according to IFPI schemes. Stanislav also noted that the Western record industry should understand that the Russian market has its own realities, and the prices for it cannot be at the level familiar to this industry.
Igor Pozhitkov called this point of view on the problem “demagogy, implicated in a number of principles that contradict the current law, the logic of man and business”: “In fact, in the Internet space of Russia there are legal sites and shops that operate under direct agreements with copyright holders . That is, part of your reputable 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 was sounded closer to its end - “What can you advise business on the eve of September 1”?
Igor Pozhitkov, responding to him, said that “representatives of Russian business need to contact, first of all, domestic copyright holders - the Russian Authors Society or the National Federation of Phonogram Producers. “In fact, the circle of copyright holders is not as large as it might seem,” he said. “These organizations 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 there is currently no court decision confirming that collective rights societies cannot issue general licenses.
Mikhail Fedotov tried to reason with IFPI and NAUET and understand their different understanding of the situation: “I believe that both opponents are right, but each in its own way. Because really, that rights management, which could have been earlier, today can no longer be. Previously, there was a norm according to which it was not necessary to ask the copyright holder, in particular, a phonographic company or artist, when using a phonogram. All that was needed was to pay him a reward. Today - in a different way, you need to ask such permission. But the question is: do you need to ask directly from this phonographic company? At the artist? Or a society for the collective management of the rights of phonographers and performers? I think that our law gives an unambiguous answer to this question, saying societies for collective management of copyright and related rights .... It is possible to conclude direct licensing agreements with copyright holders; it is possible to conclude equally legal agreements with collective management societies. The main thing is that these societies really represent the copyright holders, work for them and deduct the remuneration due to them. Unfortunately, this happens very rarely in our country. And in civilized countries this always happens. ”
In the final part of the meeting, Igor Mamatov figuratively expressed his point of view: “It doesn’t occur to anyone that the Russian author’s society will not issue a general license for broadcasting, television broadcasting, discos, music on the plane and train. What, train, disco or concert organization will conclude a contract with each author? Imagine a concert is going on, the performer is asked to sing an encore song, and he says: “Sorry, but we don’t have this song in the license, sometime next time.” Or there’s a program on requests for radio, and the DJ says: “Now, a second, we’ll try to find the copyright holder , and begins at a frantic speed to search for it. And the copyright holder is in Hawaii, they call him asking for 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 not pay 10 - a maximum of 15% for hit songs, but 30 or even 40%, if it were not necessary to pay separately for each copyright holder, keep a staff of 20 managers who conclude contracts, the staff of system administrators, who prepare each report in its own form, and accounting, which should track and recount all this. "
“There are many different options for controlling sites and negotiating prices,” said Igor Mamatov. - You can, of course, go and initiate criminal proceedings with real portals that are not visible in plain sight - they do not hide either their legal entity or the owner-managers. You can sue them instead of going and closing at least one truly pirate site. One can admire the fact that legal online stores have appeared, although some of them, having acquired the rights from the author, artist or phonographer, begin to sell them, acting as an aggregator. That’s really scary. ”
“At a UNESCO conference, they emphasized that the Internet is either a compulsory license, which is undesirable, or collective management of rights,” concluded Igor Mamatov. “To make a site, if it’s not a thematic one, to conclude hundreds of thousands of contracts is unrealistic.”
Igor Pozhitkov finished 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 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 organizations for collective management of the rights of producers of phonograms. And do not be surprised. "