Theme 3. Contiguous rights

1. Definition and legal nature related rights. 2. Sources of regulation related rights. 3. The objects of related rights. 4. The subjects of related rights. 5. Grounds for and content of intellectual property rights to objects of related rights.

In the objective sense contiguous rights are the aggregate of norms of intellectual ownership rights which regulate relations from the guard of implementations, phonograms, videograms, transmissions of organizations of broadcasting, establishment of the mode of their use, giving the performers, producers of phonograms and organizations of broadcasting, and other persons the complex of moral and intellectual rights and defence of these rights.

In the subjective sense contiguous rights are rights for performers on creation by creative labour of implementation of works, and also rights for the producers of phonograms, videograms, organizations of broadcasting on phonograms, videograms, transmissions of broadcasting accordingly, and also other persons, who acquired the property rights on the objects of contiguous rights in the order established by legislation.

Implementation, phonograms, videograms and programs (transmissions) of organizations of broadcasting, is included in the general list of objects of right of intellectual property (item 5, the first part at article 420 CC of Ukraine), and in the article 449 CC of Ukraine is referred to the separate group — objects of contiguous rights.

The objects of contiguous rights arise up as a result of professional activity of performers, producers of phonograms and organizations of broadcasting. It is possible to select among the most essential objects of contiguous rights: implementation; phonograms; broadcastings.

Let^’s consider such objects of contiguous rights as:

Taking into account maintenance of the term «public implementation», which is resulted in the article 1 of the Law of Ukraine «About a copyright and contiguous rights», implementation can be defined as any actions, directed on transmitting of the works to the public by sounds, motions, dynamics, mimics etc., that is it is presentation at the part or dance, singing, reading, declaiming, conducting, livegame on a musical instrument or by hardwares.

The object of guard of rights at the performers is the personal performace the person. It concerns the object of immaterial character, that differs from the work. Performance of the performer consists in realization of work which has been already created by the author and includes all the aggregate of its elements. A performer is a mediator between work and public, because he fully passes an idea and the work which has been specially created by the author. A performer is needed in an order to cause the aesthetically beautiful feelings in publics concerning the work being performed, however it brings nothing new to the component elements of this work.

Every new implementation by the same performer creates the new object of guard.

Implementation can be carried out only by a human; it is always is «live». However, implementation can be supported by hardwares with the help of which the audience is broadend. Due to these hardwares public can be not only in the place where the work is directly performed but also beyond its limits. It is important for, the work to be perceived simultaneously by the public with its implementation. For example, it is a direct translation of a concert or a theatrical on the radio or television. In addition, implementation can be seen or head by the public with the help audio recording or videotape recording.

Implementations are divided into public and private (not public). Public are implementations which are carried out in the opened place for a free visit or in a place, where a great number of persons which do not belong to the circle of the family are present. «Public implementation» includes, in particular, instrumental or vocal implementation, «lives» by mechanical facilities and such, as phonograph records, send-offs, sound-tracks, implementations by showing the film (talking film), by distribution and transmission (broadcasting and television, regardless of whether a direct or set aside transmission is carried out, and also by any process of wireless reception (radio is televisional receiving vehicles, telephone receiving sets etc.), and other similar facilities and devices etc..

Private (not public) implementations are such which are carried out in the circle of the family in the place limited for free access, that is on private territory.

Depending on the amount of persons which take part in implementation, implementations can be individual (carried out individually by a performer) or collective (carried out with participation of simultaneously a few performers).

S.A. Sudarikov distinguishes compatible indivisible and divisible implementation.

Compatible indivisible implementation is implementation which is one indissoluble whole. All the performers take part in indivisible compatible implementation. For example, while performing on a concert the members of the group come forward with the general presentation which is compatible implementation.

Compatible divisible implementation is implementation, which is the aggregate of a few parts which have an independent value. For example, any concert which consists of separate shows can be examined as compatible divisible implementation.

Implementation can be also classified according to the character and type of work which is executed. Yes, depending on whether literary, dramatic, musical, musically dramatic, choreographic, folklore or other types of works which the performer present, implementation acquires certain specific properties. The features of every separate implementation directly depend on the personal creative potential of performer or their group. Yes, for example, implementation of the same work by two different artists can extraordinarily differ and acquire different properties. Besides official implementations should be distinguished.

An official object of contiguous rights is implementation which is created by the performer or performers in connection with implementation of their labour duties or the task of the employer.

Some authors consider that implementation substantially differs from other objects of contiguous rights — phonograms and broadcasting programs. It is the result of creative activity, while activity of producers of phonograms and organizations of broadcasting can not be acknowledged as such as they are legal entities, and creation is a mental, intellectual process, peculiar only to the human.

Modern researchers are of the idea, that implementation must be acknowledged as the object of copyright, and the rights of performers — by the author. This position is grounded by the creative character, objective form of expression and aggregate of the moral and property rights which belong to the performers.

The next object of contiguous rights are phonograms and videograms. A phonogram is the voice fixing (record) of implementation of works and certain set of sounds on any financial transmitter ( disk, compact disk, diskette, any other transmitter) regardless of its nature, except for the sounds in the record form which is included in audiovisiual work; a phonogram is a feedstock for making its copies. It is necessary to pay attention to the fact that sounds not can be the result of creation of author legal subjects, for example it is noise of the forest, singind of birds, noise of drops of rain, marine waves etc.

The national legislations of many modern countries, including Ukraine, attribute videogram to the objects of contiguous rights.

A videogram is the videotape recording on the proper financial transmitter (on the magnetic ribbon, magnetic disk, compact disk and others like that) of implementation or any other mobile images (without voice accompaniment), except for the images as a record which are included in audiovisual work.

A national legislation differentiates audiovisual works and videograms. The difference of videogram from such an object of copyright as audiovisual work consists in the fact that audiovisual work, except for mobile images contains voice accompaniment.

The next object of contiguous rights is radiobreadcasting organizations.

The legislation of Ukraine gives a legal safeguard to the program (transmissions) of organizations of broadcasting, however there is no determination of this term, both in international agreements and in the national legislation. It complicates the process of adjusting the relations, connected with the broadcasting organizations as well as works and implementations which are used for their creation.

There is no determination of this concept in the international agreements. The difficulty of determination consists in the fact, that a word «transmission» has a double sense. From the one hand, a transmission is a process of distribution of analog or digital signal in ether or on the cable, and from the other hand, a transmission is an object of guard.

In accordance with the Roman convention of transmission of organizations of broadcasting guarded as the objects of contiguous rights. The concept, «transmission of broadcasting organization» is not contained in the convention, there is only determination, that a transmission in ether is a transmission of sounds and (or) sounds and images by wireless facilities for public acceptance. But it is scarcely possible to consider it as the determination of the term transmission of broadcasting organization.

In accordance with an item 1(i) of Brussels convention about distributions bearings of the program of signals which are passed through the satelite, the «transmission is an aggregate of materials, got directly or in a record, that consist of images, sounds or images and sounds which are transmitted by signals with the purpose of subsequent distribution».

In accordance with Law of Ukraine «On television and broadcasting», TV and radio programe is an aggregate of broadcastings of body, which are transmitted directly or in record. Realization of the program (transmissions) of organization of broadcasting (television and broadcast) is a transmission from the distance of voice or visual information by hertzian waves which spread transmission devices and accepted by any amount of radio receivers of body.

It follows to mark a difference between the programs of television and broadcasting, which consists in the form of expression transmissions. The transmissions of broadcasting have only a voice (audio) form of expression while the programs of television have only the audiovisual form of expression.

A field of rights related to copyright has rapidly developed over the last 50 years. These related rights grew up around copyrighted works, and provide similar, although often more limited and of shorter duration, rights to:

- performing artists (such as actors and musicians) in their performances;

- producers of sound recordings (for example, cassette recordings and compact discs) in their recordings;

- broadcasting organizations in their radio and television programs.