Moscow, June 05, 2008

FOR LES-RUSSIA IT WAS ABSOLUTELY NEW SUBJECT WITH LOTS OF NEW PEOPLE AND, INDEED, IT WAS A REAL SUCCESS

On June 5, 2008, in Moscow, we had a very unusual Seminar held by LES Russia on “Peculiarities of licensing of content in accordance with Part IV of the Civil Code of the Russian Federation”.

Major rightholders, representatives of business communities, including aggregators of intellectual rights, mobile communication operators, producers of the digital video- and musical content, Internet and new-media technologies providers attended the Seminar. Patent attorneys and lawyers specialized in issues of IP protection and interested in the problems of legal regulation in this field – were also present.

The Seminar was held as a round-table, allowing the audience to communicate freely with the invited speakers, state their opinion, ask questions, simulate and analyze complicated actual situations emerging presently at the market.

Valery Medvedev, Vice-President of LES Russia, opened the Seminar and addressed the participants, outlining the purposes for which LESI had been established, directions of its activities as based on the principle of the non-profit organization membership. Valery also emphasized the significance and urgency of legislation for intellectual property in the environment of evolution of the contemporary law, businesses and technologies.

The work of the Seminar was divided into three specialized sections of:
1) licensing issues in production of films, TV programs and multimedia products;
2) licensing in digital media;
3) licensing for use of musical works, phonograms and performances. Collective management of rights.

The first part was dedicated to the legal matters relating to creation of audio-visual products, TV programs, and subsequent use thereof.

A detailed analysis of the legal status of a producer in accordance with the new Civil Code was made. As it was noted by Elena Shirokova, Legal Counsel of “World Media Ventures Management”, the definition of a producer as a person who organized a creation of an audio-visual product (Articles 1240 and 1263 of RF CC) is too vague. The former definition “a person who took the initiative and responsibility of creation” (that was in force in the Russian Federation Act “On copyright and neighbouring rights”) has ceased since January 1, 2008. In particular the definition in force unfortunately allows to nominate in a contract a film director as a “producer”, which director, of course, deals with organization of creation of a film, but he does not take any initiative and, much less, responsibility.

Some problem-inducing situations emerging in the course of creation of audio-visual products (the so called “production” period), including situations when a film comprises other IP objects, were discussed in the report delivered by Natalia Maltseva, Leading Legal Counsel of “Comedy Club Production”.

A brisk discussion was stirred up during the report presented by Leyla Neyman, Managing Partner of “Steiner, Neyman & Partners”, in connection with the licensing aspects in use of the content in digital cable networks and protection of rights in all the links of the chain “rightholder – aggregator – operator – consumer”. We are witnessing a very swift multiplying of TV broadcasting types – “video on demand”, Stream TV or so called “streaming”, direct signal supply from a satellite to a consumer (DTH – direct TV home), each having its own technical peculiarities of implementation and supposing various scopes of IP rights.

The matter of defining a sufficient scope of rights for retransmitting air-broadcast TV channels via a digital cable network, aroused a great interest. Fedor Kravchenko, Managing Partner of “Collegium of the Mass-Media Legal Counsels”, actively participated in discussion to put light the technical maters of the use of content by way of its “loading” and “streaming”, without giving possibilities to save any content copies on the end-users PC’s.

The reports given by Pavel Galchenko (“IKS-Media”, Head of Legal Division), Maria Skourova (“Sukharev & Partners” Lawyers’ Bureau, Head of International-Legal Division), and Vadim Poguliayev (“Steiner, Neyman & Partners”, Chief Legal Counsel) were devoted to the legal aspects of use of works of art and objects of neighboring in the Internet. The risks appearing in use of the content comprising musical works, phonograms and performances of foreign rightholders were discussed. Also proper attention was paid to the issues of the subjective delimitation of responsibility. The scope of the exclusive right to “making public announcements” was analyzed to compare the definitions enacted by Part IV of the Civil Code and those that were in force in the previous Russian Federation Act “On copyright and neighbouring rights”. The case-to-case analysis of the disputes relating to infringement of copyright and the neighbouring rights in the Internet was also considered.

Within the frame work of the third part of the Seminar the audience heard the report presented by Arkady Turkin, Honorary Lawyer of the Russian Federation, Member of the Board and the Director of the Expertise-Analytical Department of the Russian Society of Authors (RSA), on the issues of managing the rights on the collective basis and accreditation as provided for in Part IV of the Civil Code. Arkady noted that RSA filed the application for an official accreditation presumably scheduled to be issued on August 2008. After getting the accreditation, RSA will proceed to manage rights on the basis of appropriate contracts and in other fields of collective management of the rights not encompassed by the official accreditation, but the authorization for which was given by rightholders on the contractual basis to RSA.

A certain attention was given to the circumstance that according to the Civil Code accrediting the collective management organizations and issuing so called “blanket licenses” thereto is stipulated only for six distinctly defined fields of use of IP, the field of use in the Internet and in other telecommunication networks not being present.

Irina Tulubyeva and Victor Osipov, Managers of Law Company “Tulubyeva, Osipov & Partners”, in their reports came up with the problem of inconsistency of regulations inside of Part IV of the Civil Code as well as contradiction of the Civil Code’s regulations to the existing judicial practice and public relations. In particular it was noted that if previously, while drafting and concluding an agreement, the Russian Federation Act “On copyright and neighboring rights” by means of the mandatory and discretionary rules protected interests of authors of works of art and same of the neighboring rights holders, the new Civil Code considers an author and user as the equal in rights, equally economically protected and legally skilled parties to a contract.

Olga Loyanich, Head of the Legal Division of “CD Land+” company, reported about licensing of performances in the sense of Part IV of the Civil Code. The speaker noted that although to utilize phonograms of works the user-companies conclude contracts allowing them to use the musical works recorded on phonograms and to use phonograms per se, they still do not gain the right to use performances of works (as a separate object of the neighboring rights). This means that the performers’ rights are not observed.

In conclusion, Valery Medvedev, Vice-President of LES Russia, summed up the results of the Seminar and thanked its participants for their activity.