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RESOLUTION OF THE PLENUM OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of July 18, 2014 No. 51

About some questions arising by consideration of disputes with participation of the organizations exercising collective control of copyright and related rights

(as amended on 21-01-2016)

Due to the questions arising by consideration of disputes with participation of the organizations exercising collective control of copyright and related rights and for the purpose of ensuring uniform approaches to their permission the Plenum of the Supreme Arbitration Court of the Russian Federation based on article 13 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation" decides to give to Arbitration Courts (further - courts) the following explanations.

1. Owing to Item 5 of Article 1242 of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation) the organizations for management of the rights on collective basis have the right on behalf of owners or on its own behalf to impose requirements in court, and also to make other legal acts necessary for protection of the rights transferred by it to the control on collective basis.

At the same time according to Item 2 of article 1250 Civil Code of the Russian Federation the methods of protection of the intellectual rights provided by the Code can be applied upon the demand of owners, the organizations for management of the rights on collective basis, and also other persons in the cases established by the law.

In sense of Item 1 of article 1242 Civil Code of the Russian Federation the specified organizations act for the benefit of owners.

Such organization irrespective of, it appears in court on behalf of owners or on its own behalf, is effective in protection not of the rights, but the rights of persons which gave it owing to Item 1 of article 1242 Civil Code of the Russian Federation the right to management of the appropriate rights on collective basis (Item 21 of the joint resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of 26.03.2009 No. 5/29 "About some questions which arose in connection with enforcement of part four of the Civil code of the Russian Federation").

Because this organization is effective in protection of the rights of other persons, its right to appeal to the court behind protection of the violated rights of owners (Article 1252, of 1301, of 1311 Civil Codes of the Russian Federation) 2 Articles 4, of part 2 of Article 53 of the Arbitral Procedure Code of the Russian Federation are caused by part provisions (further - the AIC of the Russian Federation).

The organization for management of the rights on collective basis has procedural law and performs procedural duties of the claimant (part 4 Articles of 53 AIC of the Russian Federation).

This organization in case of appeal to the court in protection of the rights of the specific owner in relation to Item 2 parts 2 Articles of 125 AIC of the Russian Federation shall specify the information about him allowing to identify it (surname, name and middle name or trade name) and to send to this owner the judicial notice. If the organization for management of the rights on collective basis acts on the basis of the contracts with other organization, including foreign, managing the rights on collective basis (Item 3 of article 1242 Civil Code of the Russian Federation), data on surname, name and middle name or trade name of the owner, and also data on the name and the location of this organization are specified. In case of non-compliance with such requirement the court leaves the statement without movement according to Article of 128 AIC of the Russian Federation.

2. The dispute with participation of the organization for management of the rights on collective basis can be considered by court and without participation of the specific owner.

At the same time, if the claim is declared in protection of the rights of the specific owner, such owner has procedural law of the claimant, is informed by court on time and the place of consideration of the case by the direction to it (or the foreign organization managing its appropriate rights on collective basis) determinations about adoption of the action for declaration of the organization for management of the rights on collective basis to production with indication of that he has the right to take part in judicial sessions, to give the arguments and reasons concerning requirements imposed by the organization for management of the rights on collective basis including to support or not to support requirements of the organization.

Absence of the owner in court does not interfere with consideration of such case (part of 1 Article 136, part 3 Articles of 156 AIC of the Russian Federation).

3. Courts need to consider that owing to Item 2 of article 1243 Civil Code of the Russian Federation if the license agreement with the user is signed directly by the owner, the organization for management of the rights on collective basis can collect remuneration for use of objects of copyright and related rights only provided that it is directly provided by this agreement.

Therefore, if by consideration of the claim of the organization for management of the rights on collective basis in protection of the rights of the specific owner by court it is determined that between the defendant and the owner there is license agreement about provision of right to use of disputable result of intellectual activities by the method used by the defendant, then in the absence of condition about the right to collection of remuneration for use of objects of copyright and related rights in such agreement the court refuses satisfaction of the claim.

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