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
SUMMARY

Given that certain categories of authors’ rights or neighboring rights holders do not exercise them individually, but is mandatory collective management by collecting societies, as CREDIDAM - art. 1231 of the Romanian Copyright Law no.8/1996 provides for the categories of rights that requires mandatory collective management, including, in letter f) recognized the right to equitable remuneration... (see full summary)

 
FREE EXCERPT
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

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