Orphan content bill proposed to be restricted
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The amendments, presented as a way to return orphan works created in the USSR, are in fact a mechanism for compulsory licensing of content, according to the National Federation of the Music Industry. The Association proposed to extend the rules only to Russian intellectual property and even to license it only for non-commercial purposes. Lawyers agree that the scope of the bill should be narrowed, but they suggest clarifying other points as well – for example, whether works created during the Soviet era should be considered Russian, but not in the RSFSR, but in other republics.
The National Federation of the Music Industry (NFMI, previously merged Warner Music, Universal Music, Sony; now the founders are not disclosed) has developed proposals to finalize the bill on the use of works with an inaccessible copyright holder. The initiative, submitted to the State Duma in July, is designed to allow Russian collective management organizations (CMOs) to issue licenses for such works (see Kommersant of July 27). The proposals are planned to be considered at a meeting of the RSPP Committee on Intellectual Property, which will be held on August 10.
According to the presentation available to Kommersant, the NFMI proposes to classify such works (they are also called orphan or orphan) only Russian objects of intellectual property and license them only for non-commercial purposes.
The co-author of the bill, Senator Lilia Gumerova, justified it with the desire to return the “Soviet historical and cultural heritage” to circulation. But without limiting ownership, “this will not be a draft law on orphan works, but on a compulsory license,” the NFMI says. They also proposed extending the regulation only to published objects and introducing an approximate “statute of limitations” of 30 years. He would, according to the position of the association, would allow to maintain access to the Soviet heritage, eliminating the impact on the market. Ms. Gumerova declined to comment.
The NFMI considers it important to clarify the very concept of “orphan works”, including only objects with unknown copyright holders or copyright holders without any contacts. According to the current version of the draft law, in order to start the procedure for recognizing works as orphan, it is enough just to have no information about the place of residence or legal address of the copyright holder, as well as ignoring “legally significant correspondence” by him.
Aleksey Byrdin, CEO of the Internet Video Association, considers “excessive” the provision of the bill, which gives the OKMO the right to “alienate rights and redirect cash flows, based on the fact that someone did not respond to a formally sent letter.” He believes that the initiative, in fact, imposes on authors and copyright holders the obligation to enter into correspondence with the OCMO in order to avoid alienation of rights: “For copyright holders located in countries with which mail exchange is currently difficult, this mechanism is definitely not suitable.”
For most orphan works, the term of protection has already expired, the problem of introducing them into legal circulation is not so acute, “but the legal mechanism that is proposed to solve it is inappropriate, and it creates the highest potential for abuse,” adds Mr. Birdin.
When limiting the action of the initiative, it is also necessary to clearly define “which historical works are considered Russian,” Georgy Davidyan, executive director of the Media-NN law firm, emphasizes: “Without clarification, they can include both those that have appeared since the formation of the Russian Federation, and those that were created on the territory of the republics of the USSR, considering the Russian Federation as a successor.
Mr. Davidyan believes that the very idea of extending the rules on orphan works only to Russian objects is correct: “Otherwise, an accredited OKUP may unjustifiably receive the authority to manage the rights to foreign works.”
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