The Supreme Court of Ukraine in the case ‘Organization of Collective Management of Copyright and Related Rights and Warner Music Ukraine v. City Cafe LLC (Barbaresco Cafe, Ternopil)’, confirmed the conclusions of the courts of previous instances that receiving permission to use related rights does not exempt from liability for copyright infringement.
The representative of the Organization of collective management of copyright and related rights recorded the fact of a public performance in a cafe of musical works in the form of background music. City Café LLC did not conclude an agreement with copyright holders for the public reproduction of the corresponding phonograms.
The defendant cited the fact that he had a contract with the Agency for the Protection of Performers’ Rights under which the cafe has the right to public perform (use) published music (live music), phonograms, as well as recorded performances in phonograms, a public demonstration of videograms, as well as the performances recorded in the videograms.
However, since the evidence in the form of the recorded video did not record the performance of the phonograms by the singer or musician, the court concluded that copyright was violated by City Cafe and confirmed the recovery of 48 thousand hryvnias ($1.9 thousand) and court fees.
The court argued its position by the fact that obtaining permission to use related rights is not a basis for exemption from liability for copyright infringement, since in the public performance of music there is a simultaneous use of several objects of rights, in this case in particular: objects of copyright (musical works with text), objects of related rights (performances of musical works, phonograms with a recording of the performance of musical works). At the same time, copyrights cannot be ‘absorbed’ by related rights, just as related rights are not ‘absorbed’ by copyright. The legitimate use of objects of related rights does not relieve the user from the obligation to settle with the author or copyright holder the use of copyright objects by obtaining the appropriate consent, payment of remuneration for the use of copyright objects.