IPTango: royalties

Showing posts with label royalties. Show all posts

Monday, 10 October 2016

In Peru the Right of the Authors are enhancing

Patricia Covarrubia October 10, 2016 No comments:

From the Peruvian National Institute for Defence of Competition and Protection of Intellectual Property (Indecopi) I read 3 different set of news but all relating to the same: the ‘right of authors’.

1.- GUIDANCE: A reminder to all music producers and creators that there is a booklet providing guidance and promoting awareness of the rules and respect for intellectual property: ‘Guia especializada de derecho de autor para musicos’.
The booklet is written in a simple way explaining the ‘rights of authors in their musical works and how they can obtain economic benefit of its creation’. It is accessed here.

2.- NO TO PIRACY: In light of the national film premiere La peor de mis bodas ('The worst of my weddings), INDECOPI ‘urges citizens to support national film production, rejecting any pirated material’. INDECOPI acknowledges the effort made by the Peruvian people in putting the movie together including artist, directors and production team, and thus, invites the public to support the movie and go to the cinema.

3.- COUNTING YOUR PENNIES: INDECOPI installed a web application called 'Sintoniza’ (Tune). It allows property’s owners (such as bars, shopping centres, dance schools, etc.) to see an estimate of the rate it would have to pay for the use of national and international musical repertoire - administered by collecting societies. The application is free of charge and it is said to be an easy and comprehensive tool for the general public. INDECOPI says that through this tool, they encourage ‘the payment of duties that by law, shall receive authors, artists and producers.’

Another one bites the dust

Patricia Covarrubia January 26, 2016 No comments:

From Peru we heard that another collective society had failed. Last week we covered that INDECOPI’s Copyright Commission sanctioned INTER ARTIS Peru due to “not submitting documentation that would determine the rates set by that entity, [and by not] complying with the principles of reasonableness, equity and proportionality set out in the Law on Copyright.” (here).

Today the news is that INDECOPI’s IP chamber confirmed, on appeal, the sanction imposed on the Board of the Peruvian Association of Authors and Composers (APDAYC) – the collective society for the authors/composers of musical work. The original sanction suspended APDAYC’s duties for one year from the installation of an administrative board which will take charge of the association.
At first instance (sorry guys we missed this case) the INDECOPI’s Copyright Commission sanctioned with the suspension of its board of directors AND with a fine, due to the fact that the distribution of royalties was not proportional to the exploitation of the repertoire -- the infringement of Law on Copyright (Legislative Decree 822).

APDAYC appealed the decision which finally upheld the sanction imposed by the Commission on Copyright.

A new board
As part of the sanction APDAYC’s duties are suspended and the Chamber “ordered the installation of an administrative board for a period of one year, which shall consist solely of representatives of the various categories of APDAYC’s partners, who shall not be suspended board members.”

INDECOPI notes that this decision aims “to apply systems of actual distribution that preclude arbitrary action, under the principle of equitable distribution among right holders in proportion to the use of their works, performances or productions.”

The new year appears to be cleaning some dust from these collective societies…will UNIMPRO (phonogram producers); EGEDA (audio-visual producers); and APSAV (visual artist), among others be checking their policies? I would!

Brazil: Monsanto's change of luck

Patricia Covarrubia October 01, 2014 No comments:

The Court of Appeal of Rio Grande do Sul (TJ-RS) has decided on Sept 24th that the multinational Monsanto has the right to charge royalties regarding the transgenic soy-bean from Brazilian farmers.

The decision, rendered in a split decision by the 3 member panel from the 5th Chamber of the Court of Appeal, reversed the first instance decision granted in 2012 that had considered inadequate any payment or indemnification based on the use by farmers of the soy-bean seed "Roundup Ready (RR)".
The opinion of the Reporter Judge is that the application of the Brazilian Plant Variety Law (Law 9456/1997), as demanded by the claimants, is not possible. Thus, being the Brazilian Patent Law (Law 9279/1996) applicable, Monsanto has the right to claim royalties regarding the reproduction of patented seeds through planting and harvesting while the patent (PI 110008-2) is valid.

In 2009, some rural workers' unions from southern regions in Brazil filed a class action arguing that Monsanto’s charge for royalties is effectively an unjust tax based on abuse of IP rights. Furthermore, that Art. 10 of the Plant Variety Law allows them to multiply seeds, for donation or exchange in dealings. In 2012, the 15th Civil Court of Rio Grande do Sul had accepted the claimant’s claims and also ordered Monsanto to return the royalties paid from the 2003/2004 harvest.

The Court of Appeal’s decision is not yet final and an appeal to the superior courts is still possible.

MONSANTO’S CHANGE OF LUCK
Monsanto’s luck in Brazilian courts has not been the best in recent years.
As IP TANGO have already mentioned before, in 2013 the Brazilian Superior Court of Justice (STJ) denied Monsanto’s claims to extend the term of the patent for genetically modified soy-beans, confirming that the patent expired on August 31, 2010.

Also in 2013, the Judge Alex Nunes de Figueiredo, from the Specialized Court in Class Actions and Collective Actions of Cuiabá, has issued a decision preventing Monsanto from charging royalties based on its new Intacta-RR2-PRO product in the state of Mato Grosso. This decision was based on the Art. 10 of the Plant Variety Law and Consumer Protection Laws. After losing this case, Monsanto suspended temporarily the collection of royalties on both its Roundup Read (RR) soy-bean seeds and the Bollgard 1 cotton seed

WHAT’S MORE?
It is hard to determine now if this decision shall impact the decision on an appeal against the lawsuit in the State of Mato Grosso. However, this decision might discourage other producers from pursuing similar claims. The first instance decisions in Rio Grande do Sul and Mato Grosso also seems to have encouraged neighbour countries such as Paraguay to complain about Monsanto’s charging practices (for more see Filomeno, F. A. (2014) Monsanto and intellectual property in South America) and this decision might alter this scenario.

Brazil is currently the largest soy-bean producers in the world. Brazil is also the second largest producer of transgenic soy-bean, just after the U.S. Therefore, we can expect this discussion to continue for a while.

Post written by Roberto Carapeto (Brazilian attorney).
The full sentence can be accessed here (in Portuguese); for short details brought by the court, here (in Portuguese)

The law is there you know...but this is not enough!

Patricia Covarrubia March 29, 2012 No comments:

The Chilean ‘Camara de Diputados’ (Chamber of Deputies – MPs) approved draft agreement No 526 which demand the enfocement of Law 20,243. The draft gives support to actors who see their rights economically and morally infringed by TV channels.

The draft enforces Law 20,243 (effective since February 2008) that protects the rights and intellectuals heritage of audiovisual performers. The draft agreement notes that the “...actors and actresses are legitimately requiring to the television conglomerates and cable operators to respect their intellectual property rights and comply with current legislation” .

In this regards, Law 20,243 Art 3 provides for payment of a fee which cannot be waived for the use and reproduction of audiovisual media in which they perform. The news informs that it has been reported that free TV channels when artist have demanded the respect of their rights, they have been threatened with closure of dramatic area (i.e. soap opera), reductions of salaries and/or reducing casts. [no quite an amicable table of negotiations]. So, what is next? I mean, there is a Law that establishes rights and obligations that clearly the said TV companies do not care, so...do you believe that a draft emphasizing or remembering that they need to do so will change they behaviour? It is good indeed to see that ‘Camara de Diputados’ are given support BUT...is this enough?

The draft agreement No 526 can be found at this link (in Spanish).

Blogs to pay royalties for posting YouTube videos – Oh Dear!

Patricia Covarrubia March 19, 2012 No comments:

The Brazilian collecting society which is charge of collecting royalties in behalf of the creators has sent a bill to a blog. The blog in question is a non-profit blog that covers design, art, technology and culture. While the blog contains some ads they are no more that to exchange support to others in the blogosphere.

The Central Bureau of Collection and Distribution (ECAD) sent an e-mail to the blog Caligraffitti warning it that it would have to pay royalties for videos taken from YouTube and Vimeo that have being inserted in the blog. As soon as the e-mail was received, Mr Oliveira, one of the managers of the blog, called ECAD to enquiry about this. Ring…ring…ECAD here…yep… no mistake…"You Tube pays because they are transmitter, but blog are communicators and so, they have to pay too”. Since the end of February, ECAD started to charge some ebcasting for this matter.

A charge to be paid
ECAD is charging a monthly fee to the blog for being classified as a webcasting/broadcasting programs originating from the internet itself. It was also classified as podcasting, simulcasting and the setting of sites.

Mr Olivero disagrees with this monthly payment noting that it charges like a package and not by videotape for example, meaning that it is regardless of the amount used each month [I guess he refers as something like ‘pay per view’ or ‘pay as you go’]. For this reason and taken advice from a counsel the blog was taken down. However after some more digging and advice “all (bloggers and lawyers) agree that this kind of attitude would inhibit the Brazilian blogosphere” and thus, decided to relocate and put the site up.

Going back to ECAD, it firstly noted that Art 5 of section II of Law 9610/98 which covers the right of public performance in digital mode [… the transmission or dissemination of sounds or sounds and images through of radio waves, satellite signals, wire, cable or other conductor, optical or other electromagnetic process…] does indeed includes the internet. Secondly, it denied that there is a double recovery (from YouTube and from the blogs) because these two are different forms of use and are independent of each other.
More importantly, ECAD praise itself for focusing on the “awareness and enlightenment on the need of copyright payment, not only because it is a legal requirement but because it shows respect to authors and their works”.

ECAD before moving?

Pressure or a change of heart?
The case came to light in the O GLobo newspaper as well as the online edition of the magazine Forbes and other news reporters. To this effect, Marcel Leonardi, director of Public Policy and Government Relations of Google Brazil, sent a missive saying that while ECAD and Google have signed an agreement, Google does not endorse ECAD to charge third parties for using and/or posting YouTube videos. Mr Leonardi finally stated that he hopes that "the Ecad stop this behaviour and withdraw its complaints against the users." And so....ECAD has now reassessed the matter and explained that the notifications were sent before they were moving and it was an operational misunderstanding. [I still do not get this - a bug in the computer system? they were moving so they left unnatended the system? sorry, this is not clear to me and if there is some one that 'is not moving' can you please clarify this issue?].

Source BOL noticias.

Show me the money! Collecting royalties through associations

Patricia Covarrubia December 21, 2011 No comments:

The Colombian Constitutional Court in a landmark case regarding copyright has held that artists in Colombia are not required to belong to an association in order to collect royalties.
The case refers to the called Fanny Mickey [mentioned last year in this blog], specifically Art 168, paragraph 2, last sentence which establishes the following “ This right of remuneration shall be paid through the collecting societies, formed and developed by performers of audiovisual works and recordings, according to the existing rules on copyright and related rights.”law

According to the decision "the performers of audiovisual works or recordings may exercise their right to payment using distinct collection mechanisms of the collecting society...” The situation is considered due to controversy around collecting societies such as Acinpro and Sayco. Thus, the sentence opens the door to artist to find another way to collect their royalties and so explaining that “limiting the collection of copyright to associations is a disproportionate restriction if one takes into account that there may be artists, performers, or producers who have the means to collect this in any other different way.”

Does the sentence follow the Constitution?
While Art 38 of the Colombia Constitution establishes the 'right of association' it does not establish the contrary. Yet, the Court says that the right to not be associated fits the constitution. According to the Constitutional Court as long as the artists can collect their remuneration rights using different mechanisms to the collecting society, including individual collection, it is appropriate.

Some IPTango moves

* Listed as one of the "Best blogs on Intellectual and Industrial Property Law". The University of Alicante Intellectual Property & Information Technology Project (UAIPIT).

* One of the only two Latin American blog listed in the "Top 100 Intellectual Property Blogs". Feedspot, as of May 2021.

* Listed as one of the "Top 15 Blogs For An Intellectual Property (IP) Enthusiasts". Buzzfeed.com, January 2017.

* Listed as one of the "World's Best IP Blogs". BananaIP.com, December 2015.

* IPTango founder Professor Jeremy Phillips was listed as one of the Managing Intellectual Property magazine's "Fifty Most Influential People" of 2005, 2011, 2013, and 2014.

* Listed as one of the "Influential intellectual property blawgs". A Dictionary of Intellectual Property Law, Peter Groves, 2011.

* Listed as one of the "Communities of Blawgers". Los blogs jurídicos y la web 2.0. para la difusión y la enseñanza del derecho, Gonzalo Ramírez Cleves, 2010.