Negotiation of remuneration payable to performers and phonograms producers for public communication of phonograms and audiovisual artistic performances

• Author: Mariana Savu
• Position: Attorney-at-Law, PhD Candidate, Faculty of Law, 'Nicolae Titulescu' University of Bucharest (e-mail: liliana.savu@credidam.ro).
• Pages: 47-63

LESIJ NO. XXIII, VOL. 2/2016

NEGOTIATION OF REMUNERATION PAYABLE TO

PERFORMERS AND PHONOGRAMS PRODUCERS FOR PUBLIC

COMMUNICATION OF PHONOGRAMS AND AUDIOVISUAL

ARTISTIC PERFORMANCES

Mariana SAVU

Abstract

Given that certain categories of au thors’ rights or neighboring rights holders do not exercise

them individually, but is mandator y collective manag ement by collecting societies, as CREDIDAM -

art. 1231 of the Romanian Copyright Law no.8/1996 provides for the categories of rights that r equires

mandatory collective management, including, in letter f) recognized the right to equitable remuneration

of performers for communication to the public and broadcasting of commercial phonogr ams or

reproductions ther eof, stipulating the art. 1231 par .2 that collecting societies, for these two categories

of rights, are r epresenting also the rights holders who have not given the mandates to them.

The mandate given by right holders, members of CREDIDAM, is thus extended to non-members,

Romanian and foreign performers, that can benefit from equitable remuneration as requir ed by art.146

d) of Romanian Copyright Law an d art.12 of the Rome Convention – the la tter article providing that

“if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used

directly for broadcasting or for any communication to the public, a single equitable remuneration shall

be paid by the user to the performers, or to the producers of the phonograms, or to both.”

Keywords: public communication; performers; phonogr ams producers; negotia tion; mandate.

1. Introduction

According to art. 15 para graph 1 of

Law no. 8/1996 on copyright and related

rights, as amended and supplemented

(hereinater referred to as Law/the Law): „It

iscontemplated as public

communicationany communication o f a

work, made directly or through any

technical means, made in a place open to

the public or in any place where a number

of people exceeding the normal circle of

family members or their acquaintances i s

gathered, including the representa tion on

stage,reciting or a ny other form of direct

performance or presenta tion of a work, the

 Attorney-at-Law, PhDă Candidate,ă Facultyă ofă Law,ă ”Nicolaeă Titulescu”ă Universityă ofăBu charestă(e -mail:

liliana.savu@credidam.ro).

public display of work of fine art, applied

art, photogra phy and a rchitecture, the

public projection of cinematogra phic and

other a udiovisual works, including works of

digital art, presentatio n in a public pla ce,

through sound or audiovisua l recordings, a s

well as the presenta tion by any mean s of a

broad casted work in a public place. It is also

considered public a ny communication of a

work,either by wire or wireless mean s,

achieved by making availa ble to the public,

including via the Internet or other computer

networks, so tha t any member of the public

may access it from a ny place or at any time

individually chosen”.

Accordingătoăparagraphă2ă„The right to

authorize or prohibit the co mmunication or

48 Lex ET Scientia International Journal

LESIJ NO. XXIII, VOL. 2/2016

making available to the public of works shall

not be deemed exhausted by any act of

communication to the public or making

available to the public”.

In order to determine the final form of

the Methodology regarding the

remuneration payable to the performers and

producers of phonograms for public

communication of trade phonograms/

phonograms published for commercial

purposes or reproductions thereof and/or of

audiovisual artistic performances, for

ambient and profit purposes, and the tables

includingă performers’ă andă phonogramă

producers’ royalties for the phonograms and

audiovisual, t hrough compulsory collective

management, the collective management

organizations and the users in the field must

negotiate.

The negotiation procedure is

prescribed by Law

1

, meaning that collecting

societies should proprose a Draft

Methodology to be submitted to ORDA.

Within five (5) days ORDA should issue a

decision establishing a negotiating

committee, a decision to be published in the

O.G. (Official Gazette)

The parties negotiate within 30 days.

At the end of the negotiation period, if the

parties have agreed, they conclude a

protocol to be submitted to ORDA in order

to be published in the O.G. If the parties do

not reach an agreement they switch to the

second stage, that of arbitration. After

arbitration, the party which is not satisfied

by the arbitration award pronounced by the

Arbitration Panel may address the Court, by

submitting an appeal in this regard.

1

Art.131, art. 1311 and art. 1312 of Law no. 8/1996 on copyright and related rights define the negotiation and

arbitration procedures.

2

ConfederaiaăOperatorilorăiăTransportatoriloră AutorizaiădinăRomâniaă(Confederation of Licensed Transport

Operators and Hauliers from Romania).

3

FederaiaăindustrieiăhoteliereădinăRomâniaă(FederationăofăHotelingăIndustry from Romania).

4

FederaiaăPatronatelorădinăTurismulăRomânescă(Romanian Tourism Employers Federation).

5

FederaiaăPatronalăaăReelelorădeăComeră(Employers' Federation of Trade Network).

2. Content

Such a negotiation took place between

the collecting society which represents the

rights of performers – CREDIDAM, the

collecting society which represents the

rights of phonogra m producers – UPFR, on

the one hand, and the rep resentatives of

users in the field on the other hand, meaning

the carriers which were represented by

COTAR

2

, the hoteliers which were

represented by FIH R

3

and FPTR

4

, the large

stores (supermakets) which were

represented by FPRC

5

and three major users,

i.e. Altex Romania, OMV Petrom Marketing

and Dedeman.

The above mentioned parties were

members of the Methodology Negotiation

Committee, established by the Decision of

ORDA General Manager no. 65/19.06.2015

amended by the Decision of ORDA General

Manager no. 76/14.07.2015 (publihed in the

Official Gazette of Romania no.

542/21.07.2015), conducted negotiations on

the determination of the final form o f the

Methodology, in accordance with the

provision of art. 1311 of Law no. 8/1996,

within the meetings dated 20.07.2015,

24.07.2015, 29.07.2015, 30.07.2015 (two of

the meetings on different branches of

activity), 05.08.2015, 12.08.2015;

14.08.2015, 18.08.2015, 27.08.2015 and

02.09.2015. The meetings were held

according to the schedule agreed by the

parties at their first meeting.

During the above mentioned meetings,

the representatives of collective

management organizations, CREDIDAM

and UPFR, have proposed the Methodolo gy

form to be negotiated as it was determined