Thus, the Labor Code of the Russian Federation provides that the processing of an employee’s personal data can be carried out solely for the purpose of ensuring compliance with laws and other regulations, assisting employees in finding employment, obtaining education and career advancement, ensuring the personal safety of employees, monitoring the quantity and quality of work performed and ensuring safety of property. According to paragraph 2 of the same article, when determining the volume and content of the processed personal data of an employee, the employer must be guided by the Russian Federation and other federal laws. It follows from the Labor Code of the Russian Federation that the employer has the right to receive and process information about the employee’s health status (relating to special categories of personal data by virtue of Law N 152-FZ) only in cases provided for by the Russian Federation and other federal laws.
Cases of processing of personal data, which can be carried out without the consent of their subject (employee), are listed in Law N 152-FZ. Thus, Law No. 152-FZ stipulates that the possibility of processing personal data without the consent of its subject is consistent with the compliance of such processing with labor legislation. And Law N 152-FZ indicates the admissibility of processing special categories of personal data if it is carried out for medical and preventive purposes, in order to establish a medical diagnosis, provide medical and medical and social services, provided that the processing of personal data is carried out by a person professionally engaged in medical activities and obliged in accordance with the legislation of the Russian Federation to maintain medical confidentiality.
As follows from the question, the basis for the processing of personal data provided for by Law N 152-FZ is also relevant to the situation under consideration, since medical examinations are carried out by the employer’s full-time specialists, who, as a result, are subject to the obligation of non-disclosure of information constituting medical confidentiality (Law N 323 -FZ). At the same time, in our opinion, video recording of a pre-trip or post-trip medical examination of drivers organized by the employer, since it is carried out by the employer himself, does not in itself lead to the disclosure of medical confidentiality. In addition, actions (operations) performed with personal data are determined by the operator processing them (Law N 152-FZ), and the legislation does not contain a direct prohibition on the processing of personal data using video recordings.
However, it should be taken into account that one of the principles of processing personal data is to limit its processing to the achievement of specific, predetermined and legitimate purposes and the inadmissibility of processing personal data that is incompatible with the purposes of their collection. The content and volume of personal data processed must correspond to the stated purposes of processing. The personal data processed should not be redundant in relation to the stated purposes of their processing (Part 1, Law No. 152-FZ).
Therefore, from our point of view, the issue of the legality of video recording at the place of medical examination of drivers must be resolved taking into account the purposes of such video recording, volume and directions further use information obtained in this way. The use of video surveillance systems when conducting medical examinations of drivers should be directly related to the identification of factors that prevent drivers from performing their work functions as the purpose of organizing such examinations, and is provided for by local regulations, which employees should be familiarized with upon signature (Labor Code of the Russian Federation). The content and volume of personal data obtained in this way should not go beyond the content and volume that is necessary for the purposes of processing this personal data, as provided for by Law N 323-FZ.
Of course, the above criteria are of an evaluative nature and should be considered individually in each specific situation. If the circumstances of a particular situation allow us to come to the conclusion that information about employees and their state of health, obtained using video recording tools, is redundant in relation to the purposes of processing personal data (identifying factors affecting the ability of drivers Vehicle to carry out work activities), processing of personal data in this way cannot be carried out without the written consent of employees (Law N 152-FZ).
Prepared answer:
Expert of the Legal Consulting Service GARANT
Erin Pavel
Response quality control:
Reviewer of the Legal Consulting Service GARANT
Sutulin Pavel
The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.
Who do you think constantly interferes with Russia's attempts to resist the glorification of Nazism? Totalitarian regimes? No. Absolute monarchies? No. Russia's war against Nazism is going where we did not expect - in the UN and in the European Court of Human Rights.
Every day we are convinced that the most terrible war in the history of mankind, the war against Nazism and fascism, continues to this day. What we did not allow Hitler and his accomplices to do at the cost of horrific suffering and losses haunts those who still dream of erasing our country and our people from the map of the world and from the pages of history. And the first step towards this is attempts to belittle the significance of our feat and justify atrocities Nazi criminals.
The first bell rang in 2012, when the UN General Assembly on December 20 approved a resolution developed at the initiative of the Russian Federation condemning the glorification of Nazism. But there were three countries that voted against it. These were the USA, Canada and the Marshall Islands.
In 2014, Russia again proposed a UN resolution to combat the glorification of Nazi criminals. Then the USA, Canada and Ukraine voted against it.
In 2016, the Third Committee of the UN General Assembly adopted a resolution on the need to combat the glorification of Nazism, modern manifestations of racism, discrimination and xenophobia. The US, Ukraine and Palau voted against.
And in the same 2016, the OSCE Parliamentary Assembly rejected the resolution proposed by Russia on measures to counter Nazism.
And just recently, the ECHR accepted for consideration an appeal from hired lawyers from the so-called human rights organization Agora to determine whether the propaganda of fascism is a “violation of freedom of speech” in Russia.
Concerned Agora lawyers ask the ECHR to check the legality of applying Art. 20.3 of the Administrative Code (propaganda or public display of Nazi paraphernalia).
Let me remind you that recently Ivan Gorodisky, a resident of the city of Kamenka in the Penza region, and Alexey Mandrigel, a resident of Krasnodar, were sentenced to 7 and 10 days of administrative arrest for posts on social networks with Nazi symbols, where they published collages with Nazi swastikas and photographs of Vladimir Putin. Agora's lawyers argue that displaying Nazi paraphernalia is perfectly acceptable as long as it is "an element of political polemic." Like this.
I have only one question for our law enforcement officers: why is this law applied so selectively? Why do some Poles visiting our country call our grandfathers “fascists” live on the federal TV channel, but you don’t notice this? Maybe it's time to apply this law equally to everyone?
I don’t know what they will “consider” in the ECHR, but I know one thing. That “freedom of speech” that our Western non-partners are so concerned about has already borne its terrifying fruits. And I believe that as long as the last Russian person is alive (I’m talking about all the inhabitants of Russia, because for the West we are all Russian), there will never be an equal sign between the concepts of “fascism” and “freedom of speech”.
The main goal of the document is to speed up the procedure for repossessing empty and dilapidated housing: now this will take no more than a year. But doesn't it violate the rights of homeowners?
“This decree in no way infringes on the rights of bona fide users, owners of residential premises, since in order for the house not to end up in empty houses, the owner only needs to write a notice that he has a desire to use this residential building for its intended purpose,”- in an interview "TRK Brest" The head of the Housing and Communal Services and Energy Department of the Committee on Architecture and Construction of the Brest Regional Executive Committee comments on the decree Alexey Martysyuk.
According to the chairman of the Brest regional organization of the BSDP (Hramada) Igor Maslovsky, in any country, including Belarus, there should be a procedure for such cases.
“As for the decree itself, I don’t see any major violations of rights. He determines the procedure for further disposal of these houses. How it will look in practice is another matter. As we know, we have the right to freedom of speech, freedom of rallies and meetings. But in practice it practically disappears,” says the head of the Social Democrats.
In general, in the Brest region in 2017, 382 houses were included in the register of empty houses, 892 were demolished (in most cases, by the owners according to the instructions of the village executive committees). By decision of the courts, 242 empty houses were transferred to the ownership of administrative-territorial units, of which 8 were sold at auction.
Time will tell how effective the procedure for finding the owner, issuing orders will be, and whether people's rights to property will be taken into account in the first place.
Maslovsky does not rule out that as part of the implementation of this law there will be corrupt or illegal actions by authorities.
Brest human rights activist and lawyer also speaks about possible abuse by the authorities Roman Kislyak. In his opinion, the new decree - “continuation of the insane policies of our authorities”.
“A person has the right to have several houses and is not obliged to live in each of them. BOf course, the owner of property, in addition to the benefit of ownership, also has the obligation to maintain his property in order. But, in my opinion, our authorities are going too far with this decree. Why can't these houses be empty? Why do the authorities interfere so much in the private lives of citizens?”– the lawyer asks.
In his opinion, the decree “On dilapidated and empty houses” will be in line with other "draconian" laws of Belarus. For example, decree No. 87, which gives three years for the construction of a residential building or dacha. Or the norm that agricultural land should not be idle.
“The authorities treat Belarus as if it were a huge agricultural enterprise: all agricultural land must be sown, all houses must be inhabited, and not a single one must be empty. And all this is to the detriment of the right of ownership, the right to freely dispose and own property at one’s own discretion. We are moving further and further away from respect for rights,”– says Kislyak.
Military conscription violates the following articles of the Constitution of the Russian Federation:
Article 2. Man, his rights and freedoms are the highest value. Recognition, observance and protection of human and civil rights and freedoms is the duty of the state;
Article 6, part 2. Every citizen Russian Federation has on its territory all rights and freedoms and bears equal responsibilities provided for by the Constitution of the Russian Federation;
Article 7. The Russian Federation is a social state whose policy is aimed at creating conditions that ensure a decent life and free development of people;
Article 19, part 1. Everyone is equal before the law and the court;
Article 19, part 2. The state guarantees equality of rights and freedoms of man and citizen, regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, as well as other circumstances . Any form of restriction of the rights of citizens on the basis of social, racial, national, linguistic or religious affiliation is prohibited;
Article 19, part 3. Men and women have equal rights and freedoms and equal opportunities for their implementation;
Article 20, part 1. Everyone has the right to life;
Article 21, part 1. Personal dignity is protected by the state. Nothing can be a reason for belittling him;
Article 22, part 1. Everyone has the right to freedom and personal security;
Article 27, part 1. Everyone who is legally present on the territory of the Russian Federation has the right to move freely, choose their place of stay and residence;
Article 30, part 2. No one can be forced to join or remain in any association;
Article 37, part 2. Forced labor prohibited;
Article 55, part 2. In the Russian Federation, no laws should be issued that abolish or diminish the rights and freedoms of man and citizen;
Article 59, part 1. Defense of the Fatherland is the duty and responsibility of a citizen (“citizen”, but not “male citizen”, note) of the Russian Federation.
And also the following articles of the Universal Declaration of Human Rights:
Article 1. All people are born free and equal in dignity and rights. They are endowed with reason and conscience and must act towards each other in a spirit of brotherhood;
Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin. , property, class or other status. Moreover, no distinction shall be made on the basis of the political, legal or international status of the country or territory to which a person belongs, whether that territory is independent, trust, non-self-governing or otherwise limited in its sovereignty;
Article 3. Every person has the right to life, liberty and security of person;
Article 4. No one shall be held in slavery or servitude; slavery and the slave trade are prohibited in all their forms;
Article 5. No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment;
Article 7. All people are equal before the law and are entitled, without any distinction, to equal protection of the law. All persons have the right to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination;
Article 13, part 1. Every person has the right to move freely and choose his place of residence within each state;
Article 20, part 2. No one may be forced to join any association.
Chat
Boltunova Marina
Lawyer, Moscow
Free assessment of your situation
4979 replies
2522 reviews
Hello.
In accordance with paragraph 2 of Art. 1263 of the Civil Code of the Russian Federation the following are recognized as the authors of an audiovisual work:
1) director;
2) script author (screenwriter);
3) a composer who is the author of a musical work (with or without text), specially created for this audiovisual work.
Other authors, whose results of intellectual activity are used in the creation of the WUA, are the authors of the works included integral part into an audiovisual work. It does not matter whether these objects were created specifically for the WUA or were created earlier.
PRESIDIUM OF THE HIGH ARBITRATION COURT OF THE RUSSIAN FEDERATION
RESOLUTION
dated November 19, 2013 N 5861/13
In accordance with paragraph 5 of Art. 1263 of the Civil Code of the Russian Federation, every author of a work included as an integral part in an audiovisual work, both pre-existing (the author of the work underlying the script, and others), and created in the process of working on it (director of photography, production designer, and others), retains the exclusive right to his work, except for cases where this exclusive right was transferred to the manufacturer or other persons or transferred to the manufacturer or other persons on other grounds provided by law.
Therefore, when processing an audiovisual work, including to create a parody of it, it is necessary to respect the rights of the author (copyright holder) of the musical work that has not been processed.
When creating a parody, the original original work should be at the center of the new one, and not be its background or an auxiliary device.
In this case, in the controversial program, in imitation of the original, they parodied individual elements(dances) performances of group “K.”, recorded using technical means, which are according to Art. 1304 of the Civil Code of the Russian Federation as an independent protected result of creative activity. It was these elements that were at the center of the stage performance. The new audiovisual work was not played.
The defendant did not provide evidence to the court that the disputed works were processed in any way, including for the purpose of creating a parody of them.
Thus, in this dispute there are grounds for recognizing the fact of the use of controversial musical works in a television program without the permission of the copyright holder as independent objects of protection.
In accordance with paragraph 1 of Art. 1229 of the Civil Code of the Russian Federation, the absence of a ban is not considered the consent (permission) of the copyright holder to use his exclusive rights to musical works. Therefore, such use constitutes an infringement of exclusive rights for which compensation may be sought.
Hello. There is a violation.
I suggest you read this resolution
RESOLUTION
dated March 10, 2016 in case No. A40-172809/2014
The operative part of the resolution was announced on March 2, 2016.
The full text of the resolution was made on March 10, 2016.
The Intellectual Rights Court composed of:
presiding judge - Tarasov N.N.,
judges - Silaev R.V., Snegur A.A.,
considered at the court hearing the cassation appeals of the limited liability company "MSM Group" (6th Novopodmoskovny lane, 7, building 1, Moscow, OGRN 1097746201079), the limited liability company "Mystery Records" (6th Novopodmoskovny lane ., no. 7, building 1, Moscow, OGRN 1067746424932), limited liability company "Jem Publishing House" (Elektrozavodskaya str., 52, building 7-15, Moscow, 105023, OGRN 1037718002530)
on the decision of the Ninth Arbitration Court of Appeal dated October 16, 2015 (judges Rastorguev E.B., Valiev V.R., Trubitsyn A.I.) in case No. A40-172809/2014
on the claim of the limited liability company "Publishing House Jam" against the limited liability company "MSM Group", the limited liability company "Mystery Records", Sergei Evgenievich Zhukov (Moscow),
with participation in the case as third parties who do not declare independent claims regarding the subject of the dispute: limited liability company "Ural Electronic Plant" (Studencheskaya St., 9, Yekaterinburg, Sverdlovsk region), limited liability company "RUKI UP" (Inessa Armand St., 2/32, Moscow, 117463), limited liability company "Chemodanov Production" (Verkhoyanskaya St., 12, building 2, Moscow, 129344), All-Russian public organization "Russian Authors' Society" (B. Bronnaya St., 6A, building 1, GSP-3, Moscow, 125993), closed joint stock company "JSP Company" (Mosfilmovskaya St., 17B, Moscow, 117330), Potekhin Alexey Evgenievich (Moscow);
on the protection of exclusive copyrights.
The following representatives took part in the court hearing:
from the limited liability company "Publishing House Jam" (plaintiff): Semennikov D.A. (by power of attorney dated November 21, 2013 N 22), Cherkasov A.N. ( CEO, identity has been established by the court);
from the limited liability company "MSM Group" (1st defendant): Gorobchenko A.A. (by power of attorney dated March 17, 2015), Ivanova V.A. (by power of attorney dated November 10, 2014)
from the limited liability company "Mystery Records" (2nd defendant): Gorobchenko A.A. (by power of attorney dated March 17, 2015), Ivanova V.A. (by power of attorney dated January 26, 2015); from the closed joint stock company JSP Company (5th 3rd person): Cherkasov A.N. (CEO).
Intellectual Property Court
installed:
Limited Liability Company "Jem Publishing House" (hereinafter referred to as "Jem Publishing House") appealed to the Moscow Arbitration Court with statement of claim(taking into account the clarification of the claims adopted by the court in accordance with Article 49 of the Arbitration Procedural Code of the Russian Federation):
on the recovery from the limited liability company "MSM Group" (hereinafter - the company "MSM Group") of 300,000 rubles in compensation for violation of exclusive copyrights to the musical works "Student" and "Baby", audiovisual works "Student" and "My Baby" ;
on the recovery from the limited liability company "Mystery Records" (hereinafter referred to as the "Mystery Records" company) 703,600 rubles in compensation for violation of exclusive copyrights for the musical works "Student" and "Baby", audiovisual works "Student" and "My Baby" ;
on the recovery of 200,000 rubles in compensation from Sergei Evgenievich Zhukov for violation of exclusive copyrights to the musical works “Student” and “Baby”;
on the recognition of the material media DVD “Hands Up! 15 years anniversary concert”, rental certificate N 217000812 dated 01/25/2012 counterfeit;
on the obligation of the MSM Group society to publish the decision of the Moscow Arbitration Court on this case in the Vedomosti newspaper.
The court invited the limited liability company "Ural Electronic Plant", the limited liability company "HANDS UP", the limited liability company "Chemodanov Production", the All-Russian public organization"Russian Authors' Society", closed joint-stock company "JSP Company", Potekhin Alexey Evgenievich (Moscow).
By decision of the Moscow Arbitration Court dated July 3, 2015, the proceedings against S.E. Zhukov terminated, and the claim against the MSM Group and Mystery Records companies was denied.
By the decision of the Ninth Arbitration Court of Appeal dated October 16, 2015, the decision of the court of first instance was overturned, the claims against the MSM Group and Mystery Records companies were partially satisfied, the court's decision regarding the termination of the proceedings in the case against Sergei Evgenievich Zhukov was left unchanged.
Having disagreed with the said judicial act of the appellate court, the MSM Group society, the Mystery Records society, and the Jam Publishing House appealed to the Intellectual Rights Court with cassation complaints, in which they asked to cancel it, citing the discrepancy between the court's conclusions and the actual circumstances. and the evidence available in the case, the courts’ incorrect application of the rules of substantive and procedural law.
At the court hearing of the arbitration court of cassation, representatives of the applicants of cassation complaints supported the arguments of their cassation complaints.
Representatives of the Jam Publishing Company objected to the satisfaction of the cassation complaints of the Mystery Records Society and the MSM Group Society for the reasons set out in written explanations.
Representatives of the Mystery Records society presented written explanations on the case and also believe that the appealed judicial act is illegal and unfounded.
Representatives of the MSM Group society provided written explanations on the case, believe that the appealed judicial act is illegal and unfounded, and supported the legal position of the Mystery Records society.
The representative of the company "JSP Company" objected to the satisfaction of the cassation complaints of the company "Mystery Records" and the company "MSM Group" on the grounds set out in the review, and supported the legal position of the company "Publishing House Jam".
Other third parties (limited liability company "Ural Electronic Plant", limited liability company "HANDS UP", limited liability company "Chemodanov Production", All-Russian public organization "Russian Authors Society", Potekhin Alexey Evgenievich), duly notified of the place and time of consideration of the cassation appeal, they did not send their representatives to the court session of the cassation court, which, by virtue of Part 3 of Article 284 of the Arbitration Procedure Code of the Russian Federation, is not an obstacle to considering the case in their absence.
The cassation appeal of the MSM Group society is motivated by the fact that when adopting the appealed judicial act, the appellate court went beyond the stated claims, since, in its opinion, the plaintiff did not claim compensation for violation of its exclusive rights to reproduction, distribution and publicity. performance of the audiovisual works “Student” and “My Little One”, while the courts found that the plaintiff did not provide evidence that he had exclusive rights to process the said audiovisual works.
Based on the above, the MSM Group society asks the court of appeal to cancel the decision of the court of appeal regarding the recovery of 200,000 rubles in compensation from it and to adopt a new judicial act refusing to satisfy the stated claims in this part.
The cassation appeal of the Mystery Records company is motivated by the fact that when adopting the appealed judicial act, the appellate court incorrectly interpreted the provisions of paragraph 1 of Article 1240 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), as well as the provisions of Article 4, paragraphs 1 and 2 of Article 13, paragraphs 1 and 2 of Article 31, Articles 30 and 32 of the Law of the Russian Federation dated 07/09/1993 N 5351-1 “On Copyright and Related Rights” (hereinafter referred to as the Law), subject to application taking into account the date of creation of the disputed works, came to the wrong conclusion about the plaintiff has the right to reproduce (include) the audiovisual work “Student” and “My Baby” as part of a complex work, which is the audiovisual work “Hands Up” Group “15th Anniversary Concert” owned by this defendant.
In addition, the Mystery Records society indicated that it has a non-exclusive license to reproduce and distribute the musical works “Kid and Student” as part of the audiovisual work “Hands Up! 15 years Anniversary Concert" on DVD, in connection with which he asks to cancel the appealed decision of the court of appeal regarding the recovery of 633,600 rubles in compensation from the second defendant and to adopt a new judicial act refusing to satisfy the stated claims in this part.
The cassation appeal of the Jem Publishing House company is motivated by the fact that the conclusions contained in the appealed decision of the appellate court do not correspond to the factual circumstances established by the courts and the evidence available in the case, as well as the violation by the appellate court of the provisions of Part 2 of Article 288 of the Arbitration Procedural Code of the Russian Federation, which, in the opinion of the applicant of the cassation appeal, it was expressed in the court’s incorrect interpretation of the law (Article 1263 of the Civil Code of the Russian Federation), the non-application by the court of the law subject to application (clause 5 of part 1 of Article 1252 and Article 1300 of the Civil Code of the Russian Federation), as well as the application of a law not subject to application (Article 1263 of the Civil Code RF).
Based on the foregoing, the plaintiff requests to cancel the appealed decision of the appellate court in part:
the wording of the recovery from the MSM Group society of compensation in the amount of 200,000 rubles for violation of the exclusive rights to reproduction, distribution, public performance of the audiovisual works “Student” and “My Baby”;
refusal to recover 20,000 rubles from the Mystery Records society as compensation for violation of the right to information about copyright for the musical works “Student” and “Baby”;
refusal to recover 20,000 rubles from the Mystery Records company as compensation for violation of the right to information about copyright for the audiovisual works “Student” and “My Baby”;
refusal to oblige the MSM Group society to publish the court ruling on this case that has entered into legal force in the Vedomosti newspaper;
and also issue a new judicial act to satisfy the claims in terms of:
recovery of 100,000 rubles in compensation from the MSM Group company for violation of the exclusive rights to rework the musical works “Student” and “Baby”;
recovery from the MSM Group company of 200,000 rubles in compensation for violation of exclusive copyright for the processing of audiovisual works “Student” and “My Baby”;
recovery from the Mystery Records company of 20,000 rubles as compensation for violation of the right to information about copyright for the musical works “Student” and “Baby”;
recovery from the Mystery Records company of 20,000 rubles as compensation for violation of the right to information about copyright for the audiovisual works “Student” and “My Baby”;
the obligation of the MSM Group society to publish the court ruling on this case that has entered into legal force in the Vedomosti newspaper.
Having considered the arguments of the cassation appeals, having studied the case materials, having carefully listened to the legal positions of the representatives of the persons participating in the case and appearing at the court hearing, having checked in accordance with Articles 286 and 287 of the Arbitration Procedural Code of the Russian Federation the correct application of the rules of substantive and procedural law by the courts and the compliance of the courts’ conclusions Based on the evidence available in the case and the circumstances established by the courts, the cassation court believes that the appealed judicial act must be left unchanged due to the following.
In support of the exclusive rights to the musical works “Student” and “Baby”, the plaintiff referred to the copyright agreement dated 03/03/1997 N 124-3/97, under the terms of which the “Hands Up” group transferred exclusive rights to the closed joint stock company “JSP Company” the right to use the own works listed in the catalog (Appendix No. 1 to the agreement), namely, allowed to carry out the following actions:
reproduce works;
distribute copies of works in any way, import copies of works for distribution purposes;
display works publicly;
communicate works (including display, performance or broadcast) to the public by broadcast and/or subsequent broadcast;
communicate works (including display, performance or broadcast) to the public by cable, wire or other similar means;
remake or otherwise rework works.
According to Appendix No. 1 to the agreement (vol. 1, case file 137), the “Hands Up” group transferred to the plaintiff an audio recording of musical works on a master cassette, including the works “Student” and “Kid”.
Later, an agreement on the transfer of exclusive property rights dated January 31, 2003 was concluded between the closed joint-stock company JSP Company (copyright holder) and Jem Publishing House (publisher), according to which the copyright holder transfers and the publisher accepts the exclusive property rights of the copyright holder to use the works listed in the catalog (Appendix No. 1, including “Baby”, “Student”), which means the publisher’s right, at its discretion, to carry out or permit the following actions in relation to the indicated works:
a) reproduce works (right of reproduction);
b) distribute the work in any way, namely sell, rent, etc. (right to distribute);
c) import copies of a work for distribution purposes (import right);
d) publicly perform the work (right of public performance);
e) communicate the work (including display, performance or broadcast) to the public by broadcasting and (or) subsequent broadcasting (the right to broadcast);
f) communicate the work (including display, performance or broadcast) to the public by cable, wire or other similar means (the right to communicate to the public by cable);
g) remake or otherwise process the phonogram (the right to processing).
In addition, the plaintiff indicated that as a result of the creation of the audiovisual works “Student” and “My Baby” by order of the closed joint-stock company “JSP Company” (copyright holder) under agreements dated 07/02/1997 and 04/24/1998, the latter in relation of these works, exclusive rights arose, which, in turn, were in in full transferred by the copyright holder to the plaintiff (publisher) on the basis of an agreement for the alienation of the exclusive right dated February 15, 2008.
Pointing out that on October 8, 2011, the anniversary concert of the group “Hands Up!” took place at the Arena Moscow club. In honor of the fifteenth anniversary of the group, at which, among others, the musical works “Student” and “Baby” were performed, as well as the audiovisual works “Student” and “My Little One” were illegally demonstrated by public display, the Jem Publishing House society appealed to the arbitration court with a claim against the MSM Group society as the organizer of the concert.
In addition, pointing out the fact that on October 14, 2013, a representative of the Jam Publishing Company purchased the DVD “Hands Up! - 15 years Anniversary Concert Live”, which, among other works, contains the musical works “Student”, “Baby” and the audiovisual works “Student”, “My Baby”, as well as the fact that the controversial DVD was produced By order of the Mystery Records society, the plaintiff filed a claim with the arbitration court against the latter, since the Jam Publishing Company did not give permission to the Mystery Records society to reproduce these works.
The court of first instance refused to satisfy the requirements.
At the same time, the court proceeded from the fact that the plaintiff did not provide evidence of his rights to the disputed audiovisual works, or a violation of his exclusive rights to these works, since the MSM Group society did not process, but the Mystery Records society did not process it into its own. turn, did not reproduce the specified works, while evidence that it was the MSM Group society that was the organizer of the concert was also not presented in the case materials.
Proceedings against S.E. Zhukov was dismissed on the grounds that the case against to an individual beyond the jurisdiction of the arbitration court.
The appellate court did not agree with the conclusions of the trial court and partially satisfied the claims against the MSM Group and Mystery Records companies.
In this case, the appellate court was guided by the following.
According to paragraph 1 of Article 1259 of the Civil Code of the Russian Federation, the objects of copyright are works of science, literature and art, regardless of the merits and purpose of the work, as well as the method of its expression: literary works; dramatic and musical-dramatic works, screenplays; choreographic works and pantomimes; musical works with or without text; audiovisual works; works of painting, sculpture, graphics, design, graphic stories, comics and other works of fine art; works of decorative, applied and scenographic art; works of architecture, urban planning and landscape art, including in the form of projects, drawings, images and models; photographic works and works obtained by methods similar to photography; geographical, geological and other maps, plans, sketches and plastic works related to geography, topography and other sciences and other works.
By virtue of the provisions of paragraph 1 of Article 1270 of the Civil Code of the Russian Federation, the author of a work or other copyright holder has the exclusive right to use the work in accordance with Article 1229 of the said Code in any form and in any way that does not contradict the law (exclusive right to a work), including the methods specified in paragraph 2 of this article. The copyright holder can dispose of the exclusive right to the work.
In accordance with the provisions of Article 1229 of the Civil Code of the Russian Federation, a citizen or entity who have an exclusive right to a result of intellectual activity or a means of individualization (right holder), have the right to use such a result or such a means at their own discretion in any way that does not contradict the law. The copyright holder may dispose of the exclusive right to the result of intellectual activity, unless otherwise provided by this Code. The copyright holder may, at his own discretion, permit or prohibit other persons from using the result of intellectual activity or means of individualization. The absence of a prohibition is not considered consent (permission).
Other persons may not use the corresponding result of intellectual activity or means of individualization without the consent of the copyright holder, except in cases provided for by the said Code.
The use of the result of intellectual activity or means of individualization (including their use in the ways provided for by the Civil Code of the Russian Federation), if such use is carried out without the consent of the copyright holder, is illegal and entails liability established by the said Code and other laws, except for cases when the use of the result of intellectual activity or means of individualization by persons other than the copyright holder, without his consent, is permitted by the Civil Code of the Russian Federation.
At the same time, the court of appeal established, including on the basis of the explanations of the representatives of the parties at the court hearing, that according to the DVD viewed in the court of first instance, during the said anniversary concert on the stage, behind the musicians, fragments of the audiovisual works “Student” were shown (during the period from 2 hours 29 minutes 18 seconds to 2 hours 33 minutes 10 seconds of the concert) and “My Baby” (from 0 hours 30 minutes 47 seconds to 0 hours 34 minutes 51 sec.).
At the same time, the appellate court came to a reasonable conclusion that, according to the video recording of the concert, its organizer was the MSM Group society.
This circumstance is not disputed by the parties to the case.
At the same time, checking the validity of the plaintiff’s arguments that the MSM Group society violated such exclusive copyrights of the plaintiff as:
in relation to the musical work “Student”: the right to processing by including it in a complex (audiovisual) work - a concert;
in relation to the musical work “Baby”: the right to processing by inclusion in a complex (audiovisual) work - a concert;
in relation to the audiovisual work “Student”: the right to rework the work by combining it with other video footage during the concert (demonstrated in the background of the stage);
in relation to the audiovisual work “My Little One”: the right to rework the work by combining it with other video footage during the concert (shown in the background of the stage), the appellate court established not only the fact that the conclusions of the trial court were erroneous that the basis of the claim against the two defendants there was a violation of the exclusive rights to audiovisual works, but also the fact that the plaintiff’s rights to rework the musical works “Student” and “Baby” were not violated under these circumstances, since when creating a complex object of copyright (concert), not phonograms, exclusive rights were used which belong to the plaintiff, and the right of authorship of the performer S.E. Zhukov, who, according to his explanations, performed his musical works “live”, which was not refuted by the plaintiff.
Due to the latter circumstance, the appellate court came to the rightful conclusion that the demands for the protection of the plaintiff’s exclusive rights to the musical works “Student” and “Baby” cannot be satisfied.
At the same time, according to paragraph 2 of Article 13 of the Law, the conclusion of a contract for the creation of an audiovisual work entails the transfer by the authors of this work to the manufacturer of the audiovisual work of exclusive rights to reproduce, distribute, publicly perform, communicate via cable to the public, broadcast or any other public communication of an audiovisual work, as well as subtitling and dubbing of the text of an audiovisual work, unless otherwise provided in the contract. These rights are valid for the duration of the copyright in the audiovisual work.
According to the explanations set out in paragraph 19.1 of the joint resolution of the Plenum of the Supreme Court of the Russian Federation No. 5, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 29 dated March 26, 2009 “On some issues that arose in connection with the entry into force of part four of the Civil Code of the Russian Federation”, under the person who organized the creation of a complex object is understood to be the person responsible for organizing the process of creating such an object, in particular the person who took the initiative and responsibility for the creation of the corresponding object (producer, etc.).
Taking into account the above explanations of the higher courts, in relation to paragraph 2 of Article 13 of the Law, the company “JSP Company” was rightly recognized by the court of appeal as the manufacturer of the controversial audiovisual works, that is, the person who took the initiative to create these works.
At the same time, agreeing with the defendants’ arguments that, on the basis of paragraph 2 of Article 13 of the Law and the terms of agreements concluded with copyright holders, the JS P Company did not transfer the rights to process audiovisual works, the violation of which was claimed by the JS P Company ", the appellate court came to the correct conclusion that since the plaintiff claims the defendants’ unlawful use of audiovisual works when creating a complex object of copyright (concert) by including fragments of these audiovisual works in the composition of the complex object in the absence of appropriate permission (Article 1240 of the Civil Code of the Russian Federation ), then in this case there is a violation of the plaintiff’s exclusive rights to reproduce, distribute, and publicly perform audiovisual works.
By virtue of paragraph 1 of Article 1263 of the Civil Code of the Russian Federation, an audiovisual work is a work consisting of a fixed series of interconnected images (with or without sound) and intended for visual and auditory (in the case of sound) perception with the help of appropriate technical devices. Audiovisual works include cinematographic works, as well as all works expressed by means similar to cinematographic ones (television and video films and other similar works), regardless of the method of their initial or subsequent recording.
According to Article 1240 of the Civil Code of the Russian Federation, a person who has organized the creation of a complex object, including several protected results of intellectual activity (a film, other audiovisual work, theatrical performance, multimedia product, unified technology), acquires the right to use these results on the basis of agreements on the alienation of exclusive rights or licensing agreements concluded by such a person with the holders of exclusive rights to the corresponding results of intellectual activity.
Since in this case a license agreement was not concluded with the owner of the exclusive rights to the audiovisual works “Student” and “My Baby” (the plaintiff), the MSM Group society, the appellate court came to the conclusion that the requirements for recovery from the company “ MSM Group" 200,000 rubles in compensation for violation of exclusive rights to the audiovisual works "Student", "My Baby" are legal.
At the same time, the appellate court, which verified the validity of the amount claimed for recovery, took into account the explanations contained in paragraph 43.3 of Resolution No. 5/29 and came to the conclusion that compensation was proportionate to the consequences of the violation.
In checking the legality of the claims made against the second defendant, the appellate court proceeded from the fact that on the basis of an agreement concluded with the Ural Electronic Plant company dated January 14, 2008 N M 3/1756, the latter produced DVDs at the request of the Mystery Records company. CDs “Hands Up! - 15 years. Anniversary Concert Live" with a total circulation of 3,200 copies.
According to the sales receipt dated October 14, 2013, submitted by the plaintiff to the case file, the cost of one copy of the DVD was 99 rubles.
Since the Mystery Records company did not enter into an agreement with the plaintiff to organize the recording of these discs, claims for recovery from the Mystery Records company of compensation for violation of the exclusive rights to reproduce musical works “Student”, “Baby” and audiovisual works “Student” , “My Baby” in the amount of 633,600 rubles was recognized by the court of appeal as legitimate and subject to satisfaction in the declared amount.
The amount of compensation was lawfully calculated by the plaintiff on the basis of Article 1301 of the Civil Code of the Russian Federation at twice the cost of copies of the work, the calculation of which is contained in the claim, was verified by the court, is correct and has not been refuted by the Mystery Records society.
At the same time, the appellate court came to the conclusion that the plaintiff’s demand to recover from the Mystery Records company 20,000 rubles in compensation for violation of the right to information about copyright for the musical works “Student”, “Baby” cannot be satisfied, since according to Clause 4 of Article 1263 of the Civil Code of the Russian Federation, for any use of an audiovisual work, the manufacturer has the right to indicate his name or designation or demand such an indication, despite the fact that the plaintiff’s musical works were not used as part of a controversial complex object (concert), and to recover 20,000 rubles in compensation for violation of the right to information about copyright for the audiovisual works “Student”, “My Baby”, since the plaintiff did not require an indication of himself, on the contrary, he asked to recognize the material medium of the DVD “Hands Up! 15th Anniversary Concert” is counterfeit.
At the same time, the cassation court takes into account that the pleading part of the claim as amended (vol. 3 pp. 54-63) does not contain demands for the recovery of 20,000 rubles in compensation for violation of the right to information about copyright for musical works “Student ", "Baby" and on the recovery of 20,000 rubles in compensation for violation of the right to information about copyright for the audiovisual works "Student", "My Baby".
The plaintiff's demand for recognition of the material media DVD Hands Up! “15th Anniversary Concert” rental certificate N 21700812 dated January 25, 2012 was declared counterfeit by the court of appeal and not subject to satisfaction, since the Civil Code of the Russian Federation (Articles 12, 1252) does not provide for such a method of protecting the right, and the establishment of counterfeit products relates to the grounds, not the subject claim.
In addition, the appellate court rightfully refused to satisfy the plaintiff’s request for an obligation to publish the court decision in the Vedomosti newspaper at the expense of the MSM Group company, since it was not motivated and not justified, despite the fact that the court established the circumstances of the violation of the plaintiff’s exclusive rights by two defendants, while the requirement to publish the court decision was brought against one of them, while part of the claim against the MSM Group company was rejected by the court of appeal.
The reasons for the publication of the judicial act in the case in the Vedomosti newspaper were also not indicated to the court.
Taking into account the above, the court of appeal rightfully overturned the court decision in terms of refusal of the claim, the claims against the MSM Group company were satisfied in the amount of 200,000 rubles, in respect of the Mystery Records company - in the amount of 633,600 rubles, in terms of termination of proceedings in the case against S.E. Zhukov The decision of the trial court was upheld.
The arguments presented in the cassation appeals of the plaintiff and defendants are stated without taking into account the conclusions of the court, do not refute them, but repeat the arguments that were the subject of verification by the court of appeal, do not indicate a violation by the court of substantive and procedural law, but only indicate disagreement with the conclusions of the court, based on a comprehensive, complete, objective and direct examination of the evidence available in the case, which has been given a proper legal assessment.
The arguments presented in the cassation appeal of the MSM Group company and supported at the court hearing by representatives of the plaintiff and the closed joint-stock company JSP Company that when adopting the appealed judicial act, the appellate court went beyond the stated claims, are rejected by the cassation court , since, as follows from the pleading part of the claim, the plaintiff claimed the recovery of 300,000 rubles in compensation for violation of exclusive copyrights in the musical works “Student” and “Baby”, as well as the audiovisual works “Student” and “My Little One”.
Meanwhile, the operative part of the appealed judicial act contains both an indication of the recovery of 200,000 rubles in compensation from the MSM Group company in favor of the plaintiff, and the court’s conclusion about the refusal to satisfy the rest of the stated claim.
At the same time, the cassation court takes into account that the plaintiff’s statement about the legal uncertainty that arose in connection with the court’s conclusions set out in the reasoning part of the appealed judicial act can be resolved in the manner prescribed by Article 179 of the Arbitration Procedure Code of the Russian Federation.
This rule of law provides that if the decision is unclear, the arbitration court that made this decision, upon the application of a person participating in the case, a bailiff, other bodies or organizations executing the decision of the arbitration court, has the right to explain the decision without changing its content.
In this case, an explanation of the decision is allowed if it has not been enforced and the period during which the decision can be enforced has not expired.
The argument presented in the cassation appeal of the Mystery Records society is that the appellate court came to the incorrect conclusion that the plaintiff has the right to reproduce (include) the audiovisual work “Student” and “My Baby” as part of a complex work, which is the property of this the defendant's audiovisual work “Hands Up Group” “15th Anniversary Concert” is rejected by the court of cassation, since it indicates an incorrect understanding by the defendant himself, who used the results of someone else’s intellectual activity, the provisions of the article, when recording the controversial DVDs without concluding a license agreement with the copyright holder 1240 of the Civil Code of the Russian Federation, which does not indicate a mistake made by the court.
The argument of the cassation appeal of the company “Mystery Records” about the existence of a non-exclusive license for the reproduction and distribution of the musical works “Kid” and “Student” as part of the audiovisual work “Hands Up! 15 Years Anniversary Concert” on DVD was rejected by the court of cassation, since evidence of the conclusion of a licensing agreement with the plaintiff, as the person who created the disputed works, was not presented in the case materials, and the plaintiff himself denies this fact.
The declarative and unsubstantiated arguments presented in the cassation appeal of the Jem Publishing House are that the conclusions contained in the appealed decision of the appellate court do not correspond to the factual circumstances established by the courts and the evidence available in the case, about the incorrect interpretation by the appellate court of the provisions of Article 1263 of the Civil Code of the Russian Federation , the failure of this court to apply the provisions of paragraph 5 of part 1 of Article 1252 and Article 1300 of the Civil Code of the Russian Federation does not indicate an error made by the court, but the plaintiff’s disagreement with the court’s conclusions.
Meanwhile, the re-evaluation of the evidence examined by the court and the established circumstances, due to the provisions of Article 286 of the Arbitration Procedural Code of the Russian Federation, is not within the powers of the cassation court.
Based on the foregoing, there are no grounds for re-evaluating the conclusions set out in the appealed judicial act, and the arguments of the cassation appeal about the unfoundedness of the conclusions of the appellate court are rejected by the cassation court as contradicting the case materials.
Under such circumstances, the cassation court finds the conclusions of the appellate court correct.
The cassation court believes that the appellate court, when considering the dispute, correctly established the circumstances relevant to the case, fully, comprehensively and objectively examined the presented evidence in its entirety, taking into account the arguments and objections of the persons participating in the case, and made the correct conclusions appropriate actual circumstances d
received
fee 36%
Hello Rosie!
I’ll add to my colleague’s answer.
1) Everything that concerns television programs (programs) - refers to objects related rights. Those. in this case, the object is not the video itself, but its broadcast on TV or other means of communication.
Therefore, by using excerpts from TV broadcasts, you do not violate related rights, because you are not broadcasting.
2) You write:
For the video, we take excerpts from films, football matches, fights without rules, make editing (+ a little of our own footage + change the voice acting, location of frames, etc.).
in scientific, polemical, critical, informational, for educational purposes, as well as for the purpose of revealing the creative intent of the author of lawfully published works to the extent justified by the purpose of citation, including the reproduction of excerpts from newspaper and magazine articles in the form of press reviews.
Since announcing an event can be classified as informational purposes, I think it is possible to edit and reproduce such videos. Only you will need to indicate which works were used since
Art. 1274 Civil Code of the Russian Federation
1. Allowed without the consent of the author or other copyright holder and without payment of remuneration, but with the obligatory indication of the name of the author whose work is used and the source of borrowing
