of April 4, 2012 No. 01-06/417/2012
About some questions of practice of application by economic courts of the legislation on protection of the rights to intellectual property items
According to the procedure of information and for accounting in hearing of cases the overview of the disputes over the cases connected with protection of the rights to intellectual property items on which judgments are reviewed in cassation procedure by the Supreme Economic Court of Ukraine solved by economic courts of Ukraine goes.
1. Subjects of commercial use of the soundtracks published with commercial purpose, videograms, their copies and the execution fixed in them for implementation of such use shall sign the contract on payment of remuneration with the relevant authorized organization of collective management.
The company (authorized organization of collective management) appealed to economic court with the claim for the obligation of Society to sign with it the agreement on payment of remuneration for commercial use of the soundtracks published with commercial purpose, videograms, their copies and the execution fixed in them.
Refusing satisfaction of claims, local economic court with which the Appeal Court agreed, came to conclusion about conclusion non-obligation the parties of the specified agreement by a court decision after the voluntary conclusion the defendant of the relevant contract with other organization of collective management - the subject of the related rights.
Reviewing judgments of the previous degrees of jurisdiction in cassation procedure, the Supreme Economic Court of Ukraine noted it.
According to part three of article 179 of the Economic code of Ukraine the conclusion of the economic agreement is obligatory for the parties if it is based on the state order which accomplishment is obligation for the subject of managing in the cases provided by the law or there is direct specifying of the law concerning obligation of the conclusion of the agreement for certain categories of subjects of managing or public authorities or local government bodies.
According to part one of article 43 of the Law of Ukraine "About copyright and the related rights" it is allowed without the consent of producers of soundtracks (videograms) which soundtracks (videogram) are published for use with commercial purpose, and contractors whose execution is fixed in these soundtracks (videograms), but with remuneration payment, such direct or mediately commercial use of soundtracks and videograms and their copies: a) public performance of soundtrack or its copy or public demonstration of the videogram or its copy; b) the public notice of the execution fixed in soundtrack or the videogram and their copies in air; c) the public notice of the execution fixed in soundtrack or the videogram and their copies on wires (through cable).
By parts two and third same Article it is determined that collection of remuneration for use of soundtracks (videograms) specified in part one of this Article, and control of their lawful use are performed by the authorized organizations of collective management determined by Organization. The raised funds are distributed between the organizations of collective management which are available on accounting in Organization, on the basis of contracts which authorized organizations sign with all organizations of collective management. Amount of remuneration for use of soundtracks (videograms) specified in part one of this Article, procedure and conditions of its payment are determined by the Cabinet of Ministers of Ukraine.
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