Zuykov and partners defended the copyright for musical works in the Altai language
In the Kyzyl City Court of the Republic of Tyva, in the first instance, case No. 2-343/2022 was considered on the basis of the statement of claim Bayym-Sur Borisovna on copyright protection for musical works with the text "Rain Melody" (Alt."Jaashtyn kuuzi"), "Red Sunset" (alt. "Kyzyl enir") and "My song in the mountains, where I grew up as a shepherdess" (alt. "Kayyr kojon") vs Kuular ( Barzhay) Borbaana Eres-Oolovny.
Musical works were created by the plaintiff in the period 2008-2016. In 2016, the Anai-Khaak recording studio (Kyzyl) created phonograms of these works, which were then posted on social networks.
In 2018, a concert was held in the city of Kyzyl under the name "Chaashkynnyn ayalgazy" ("Melody of Rain"), where the Tuvan singer Kuular (Barzhai) Borbaana Eres-Oolovna performed these works with texts and titles revised and also translated into Tuvan. Similarly, the works of the plaintiff were used several times during 2018-2019. Reworked works were also posted by the defendant on social media.
In 2019-2020, the plaintiff deposited the mentioned musical works and, in view of the foregoing, was forced to apply for judicial protection of his copyrights.
At the request of the Indigenous Rights Committee of INTA and the World Intellectual Property Organization (WIPO), based on Pro Bono, Zuykov and partners represented the interests of Kypchak- Tadyr Bayym -Sur Borisovna, who is a representative of indigenous peoples. Zuykov and partners entered into the process after the filing of the lawsuit, clarified the claims, disclosed their legal position by preparing written explanations, and also personally participated in the court hearings of the court of first instance.
According to subparagraphs 1, 6, 9 and 11 of paragraph 2 of Article 1270 of the Civil Code of the Russian Federation, the use of a work, regardless of whether the relevant actions are performed for the purpose of making a profit or without such a goal, is considered to be a reproduction of a work, a public performance of a work, a translation or other processing of a work bringing the work to the public.
According to article 1304 of the Civil Code of the Russian Federation, "phonograms are objects of related rights, among other things." In accordance with paragraph 2 of Article 1323 of the Civil Code of the Russian Federation, " The producer of a phonogram shall exercise his rights in compliance with the rights of the authors of works and the rights of performers." The use of phonograms is impossible without the simultaneous use of other protected objects - musical works and performances that are recorded on it. Thus, related rights are derived from copyright, and in order to exercise related rights, it is necessary to obtain the permission of the author (copyright holder) and observe his copyright. The use of a recorded musical work will be legal if the subject of the legal relationship has received the rights not only to the recording (phonogram) and performance, but also to the musical work itself with text, that is, both related and copyright rights have been acquired.
In order to restore the exclusive rights to the works violated by the defendant , the Claimant filed a demand to stop the actions of the Respondent and to recover compensation in the amount of 100,000 rubles.
When determining the amount of compensation to be recovered, the court takes into account such circumstances as:
- The popularity of the works to the public: more than 400 thousand views of two videos of concerts;
- Term of illegal use of works: illegal use of works has taken place since at least December 2017;
- Repeated, gross nature of the violation: processing, unlawful performance, reproduction and communication to the public without the consent of the plaintiff, which was known to the defendant;
- Use of works in several ways at once.
As the court of first instance established, the rights to musical works were obtained by the defendant under a license agreement from the head of the Anai-Khaak studio Ondar Igor Dorzhuevich and the arranger of the studio Mongush Aziyat Eduardovich, who were involved in the case as third parties who did not make independent claims regarding the subject of the dispute on the side of the defendant.
However, the evidence that the plaintiff, as the owner of the copyright to these musical works, transferred her rights to them to Ondar I.D. and Mongush A.E., as well as agreed to act on her behalf as a licensee, is not presented in the case file.
As a result of the consideration of the case, the claim was satisfied in full. The court decided to recognize Kypchak-Tadyr Baiym-Sur Borisovna, the author and owner of exclusive rights to musical works; prohibit the defendant from using musical works by reproduction, public performance, making available to the public, as well as translation or other processing, and oblige the defendant to publish the court decision in the mass media "Tuvinskaya Pravda" and " Shyn"; and also, recover from the defendant compensation in the amount of 100,000 rubles for violation of exclusive copyrights.
Subsequently, the defendant's appeal against the decision of the Kyzyl City Court of the Republic of Tyva was returned to him by the ruling of 09/19/2022 due to the failure to eliminate the shortcomings indicated by the court within the time period established in the ruling on leaving it without movement, and the decision of 06/09/2022 entered into force.