Getting Permission to Apply Related Rights Does not Discharge from Liability for Violation of Copyright – Commercial Cassation Court within the Supreme Court

An organization within the interests of the plaintiff applied to court with claim on the collection of 223 380 UAH of compensation from the Company for the violation of proprietary copyright due to unauthorized (without special permit) application of disputable musical compositions by the defendant in a food outlet.

First instance court, judging from particular circumstances of the case and general provisions of civil law, particularly, fairness, integrity and rationality, brought the defendant to liability in the form of payment of compensation provided in item “г” of Part 2 of Article 52 of the Law of Ukraine “On Copyright and Related Rights” (as amended at the moment of appearing the disputable legal relation) in the amount of 48 000 UAH; the court dismissed the other part of the claim. This judgment was upheld by appeal court.

The Commercial Cassation Court within the Supreme Court upheld the opinions of lower courts in the view of the following.

Lower courts have examined the evidence in the case, particularly, the videotape recording of the fact of copyright violation by the defendant, and found that such a record had been made in the premises of the café, in which the disputable musical compositions had played for background underscoring of the outlet premises.

The plaintiff thus proved, and the defendant did not contradict to the fact of public play of disputable musical compositions in the premises of the café, in which the Company carried on its business. The case materials do not contain the evidence as for the confirmation of permission by a person possessing the exclusive rights to permit the application of copyright object.

Having disposed the defendant’s reference to the application of phonograms by him, in other words, objects of related rights on the grounds of agreement, but not the objects of copyright, since the videotape recording provided by the plaintiff had not fixed a performer, who had performed the composition with an instrument or singing, the Commercial Cassation Court within the Supreme Court noted the following.

The complainant in the arguments of the cassation complaint did not take into account the fact that public performing of a phonogram may not testify the lack of copyright violation only because the author or performers had not performed this composition personally (analogous legal position is stated in the Resolution of the Supreme Court of 15 July 2019 in the case No. 921/440/18).

Getting a permit to apply related rights is not the grounds for release from liability for copyright violation, since while public performing of music in a location with any gadgets and processes there is simultaneous application of several objects of rights, particularly in this case: objects of copyright – musical compositions with text (Article 8 of the Law of Ukraine “On Copyright and Related Rights”) objects of related rights – performing of musical compositions, phonograms with recording of musical compositions performing (Article 35 of the noted Law). Herewith, copyright may not be “overtaken” by related rights, like the related ones may not be “overtaken” by copyright. Proper application of related rights objects does not release the defendant from the obligation to settle the issue of copyright object application with the author or with another subject of copyright by means of getting relevant consent, paying awards for the application of the copyright objects.

The dispute in this case, as the appeal court has noted correctly, concerns the lawfulness of the application of the copyright objects by the defendant and the collection of compensation for the violation of proprietary copyrights of the copyright subject and does not concern the issue of related rights violation. Lower courts, having examined evidence form the case materials, came to the irrefutable conclusion about the violation the copyright subject’s proprietary copyright by the defendant because of unlawful application of disputable musical compositions.

Follow the link, to see the full text of the Resolution of the CCC SC of 30 April 2020 in the case No. 921/441/18: http://reyestr.court.gov.ua/Review/89038532