Head of Department
On the possibility of a public display of the matches of the 2018 FIFA World Cup
The 2018 FIFA World Cup will take place in Russia from June 14, to July 15, 2018. Russia for the first time in its history will host the World Cup.
In terms of awareness in the world of the FIFA World Cup is the most popular sporting event.
The surveys conducted showed that 83% of respondents in Russia plan to watch the matches of the 2018 FIFA World Cup. Among them, the majority of the audience interviewed plans to watch matches on TV at home.
At the same time, the percentage (37% of Russians) wishing to immerse themselves in viewing the matches of the World Cup in public places (at specially organized venues, bars, pubs, etc.) is quite high.
Meanwhile, the organizations which plan to make a public display of the matches of the World Cup face a pressing question, whether they have a claim from the right holders, if the organization has not concluded an appropriate agreement for a public display of the matches.
In this article I offer to consider the following question: Is the public display of the channels that broadcast the matches of the World Cup without concluding an agreement with a TV channel a violation?
First of all it is necessary to note, that on the territory of the Russian Federation the rights to broadcast the matches of the 2018 FIFA World Cup are provided to the consortium, which is a joint project of the VGTRK and the First Channel. The very broadcast of the matches will be performed by the First Channel, the VGTRK and “Match TV.”
In accordance with Unnumbered Paragraph 2 of Article 2 of Law of the Russian Federation of 27.12.1991 No. 2124-1 “On Mass Media” (hereinafter – Law “On Mass Media”) the mass media shall be understood to mean printed, audio and audiovisual, and other communications and materials intended for an unlimited range of persons.
In accordance with Unnumbered Paragraph 3 of Article 2 of Law “On Mass Media” the mass media shall be understood to mean a periodical printed publication, the Internet publication, a TV channel, a radio channel, a TV programme, a radio programme, a video programme, a newsreel programme and other form of a periodical dissemination of the mass information under a constant title (name).
On the basis of Unnumbered Paragraph 14 of Article 2 of Law “On Mass Media” the TV channel, the radio channel shall be understood to mean a complex of TV programmes, radio programmes and (or) accordingly other audiovisual, audio communications and materials created under a broadcast schedule (a programme schedule) and published (broadcasted) under a permanent title (name) and with an established periodicity. The rules established by this Law and other legislative acts of the Russian Federation for a TV programme, a radio programme shall be applicable to a TV channel, a radio channel, unless otherwise is stipulated by this Law.
In accordance with Subparagraph 3 of Paragraph 1 of Article 1304 of the Civil Code of the Russian Federation (hereinafter referred to as the C.C.R.F.) the communications of transmissions of broadcasting and cablecasting organizations, including the transmissions created by a broadcasting or cablecasting organization itself or by its order and at its expense by another organization, refer to the subject-matters of the related rights.
Under Article 1329 of the C.C.R.F. the broadcasting or cablecasting organization shall be deemed a legal entity independently determining the content of radio and TV transmissions (the totality of sounds and (or) images or of their display) and performing their broadcasting or cablecasting with its own efforts or with the help of third persons.
According to Paragraph 1 of Article 1330 of the C.C.R.F. the broadcasting or cablecasting organization shall possess the exclusive right to use communicating the transmissions lawfully performed or performed by it by broadcasting or cablecasting in accordance with Article 1229 of this Code by any means not contrary to the law (the exclusive right to communicate a radio or TV transmission), including by the means stipulated in Paragraph 2 of the this Article. The broadcasting or cablecasting organization may dispose of the exclusive right to communicate a radio transmission or a TV transmission.
In accordance with Paragraph 2 of Article 1330 of the C.C.R.F. the exclusive right to broadcasting or cablecasting includes the following methods of the use: a recording of the communication of a radio or TV transmission; a reproduction of the recording of the communication of a radio or TV transmission; a distribution of the communication of a radio or TV transmission by selling or otherwise alienating the original or copies of the recording of the communication of a radio or TV transmission; a retransmission; bringing the communication of a radio or TV transmission to the public; a public performance; hiring the original and copies of the recording of the communication of a radio or TV transmission.
Paragraph 1 of Article 1229 of the C.C.R.F. stipulates that the right holder may at his discretion permit or prohibit other persons to use the result of intellectual activity or means of individualization. The absence of a prohibition shall not be considered as a consent (permission).
Other persons shall not use the respective result of intellectual activity or means of individualization without the consent of the right holder, except the cases stipulated by this Code. The use of a result of intellectual activity or means of individualization, if this use is exercised without the consent of the right holder, shall be illegal and shall entail the liability stipulated by the above Code and other laws, except the cases when the use of a result of intellectual activity or means of individualization by the persons other than the right holder without the consent of the latter is allowed by the above Code.
With regard to the issue under consideration, the actions of the persons who will perform a public display of the channels that broadcast the matches of the World Cup can be qualified as a public performance.
That is, if to evaluate superficially the actions of the persons performing a public display of the matches of the World Cup, then we can say that the rights of TV channels are violated.
However, if to analyze in detail Subparagraph 6 of Paragraph 2 of Article 1330 of the C.C.R.F., it states that the use of the communication of a radio or TV transmission (broadcast) shall be considered a public performance, that is, any communication of a radio or TV transmission with the help of technical means at places with paid entering, regardless of whether it is perceived at the place of the communication or at another place simultaneously with communication.
In addition, the analysis of the judicial practice shows that, if the TV transmissions by way of a public performance were available, for example, at the premises of the bar, the right holder must prove that the bar charges a fee exactly for entering the bar or includes viewing the satellite TV in the cost of drinks or food, and thereby it gains profit.
At the same time, the Intellectual Property Court in its resolution of 26.01.2015 in case No. A32-3863/2014 noted that the mere fact that of the availability of a TV set that is broadcasting and cablecasting in a premises, where the defendant carries out his entrepreneurial activity, can not be considered a violation of the exclusive related rights to the communication of radio and TV transmissions by the broadcasting and cablecasting organization.
In addition, definition of the Supreme Court of the Russian Federation of 19.10.2015 No. 310-ES15-13119 states that “The courts in resolving the dispute have proceeded from the provisions of Subparagraph 6 of Paragraph 2 of Article 1330 of the Civil Code of the Russian Federation, from which it follows that the public performance of a radio or TV transmission means their use only in case of their communication at the places with paid entering. Consequently, the public performance of TV transmissions at the places with an entrance, which is free of charge, that is, free for visiting, does not violate the exclusive rights of the right holder.
The courts, guided by the above rule of law, having applied the provisions of Paragraph 1 of Article 1330, Articles 1225, 1229, 1233, 1304, 1329 of the Civil Code of the Russian Federation as well, having recognized as unproved the fact, that the defendant had charged a fee exactly for entering the hotel or had included in the cost of a hotel room the satellite TV services and thereby had gained profit, came to a conclusion that there was no legal basis for satisfying the claim on recovery of compensation for the violation of the plaintiff’s related rights by the defendant."
This legal approach was reflected in Paragraph 5 of the Judicial Practice Review on Cases Related to the Settlement of Disputes on the Intellectual Rights Protection approved by the Presidium of the Supreme Court of the Russian Federation of 23.09.2015.
Thus, the answer to the question: “Is the public display of the channels that broadcast the matches of the World Cup without concluding an agreement with a TV channel a violation?” – will be as follows: If entering the cafe, bar or other premises in which the public performance of the TV transmissions including the matches of the World Cup is free of charge, then such actions of the person who has organized the public display should not be considered as a violation, because, on the basis of the judicial practice, such actions do not violate the exclusive rights of the right holder.