Fight for the Copyright Now at the Courtroom

Fight for the copyright and related right continues at the courtroom. Georgian Copyrights Association (GCA) disputes the right of existence of the newly established Georgian Rightholders Association (GERA) and states that only it is entitled to operate at market.

As Mariam Gabashvili, lawyer of GERA stated, GCA’s claims lack legal ground and GERA will go through it and win a lawsuit.

Georgian Rightholders Association (GERA) is a collective management organization providing management of the copyrights and related rights to the specific pieces of work, phonograms and performances. As for the dispute with GCA, this organization has disputes with the entities where musical compositions are performed publicly, claiming that the agreements with Rozum are invalid, as allegedly our party has no competence to issue to these entities the licenses for performance of musical compositions and demands from the entities to make such agreements with it and not with GERA or Rozum.

– If an artist has no agreement with GCA, on what basis the organization can claim anything from the entities?

M. Gabashvili: according to the presumption provided by the law, collective management organization is entitled to collect honoraria for any music performed in the territory of Georgia, irrespective of whether the performer is known or not. And hence, the unknown author is the one who is not a member of the organization and it is unknown to whim the work belonged. But this presumption worked at market before establishment of GERA. After GERA’s appearance the repertoire was divided, we became official representatives of Sony Music Entertainment, Warner Music, Universal Music and over 300 authors and performers have made agreements with us.

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– So, based on the GERA’s system, the honoraria are collected only for the holders of copyright and related rights, which are members of your organization, but where are the honoraria of unknown persons that GCAhas collected for the past years?

M. Gabashvili: According to the law, the honoraria of unknown persons collected by collective management organization may be maintained at the organization’s bank account for 3 years.

– Thus, if a person comes to the organization and claims honoraria collected for 3 years, the organization shall have to pay this amount to the author or performer?

M. Gabashvili: Yes, but regarding that GCA has no technology that could evidence existence of the publicly performed repertoire, possibly it would be hard for the authors to prove that their works were performed anywhere.

– GCA’s statements clearly show that it disputes GERA’s right to existence…

M. Gabashvili: Actually, GCA does not state this openly, though, according to their statements, GERA is not authorized to perform the functions of the collective management organization and this means that such statement is attempt of prohibition, as GERA’s activities include these functions, rights and obligations. GCA refers to the provision of law, according to which the organization shall have agreements with collective management organizations of majority of the countries, though, it should be noted here that this provision, as such, is quite disputable, it is impossible that the newly founded organization immediately made agreements with the organizations of different countries all over the world. Everything needs time. Regarding this provision, GCA has not made agreements itself. GCA is a legal successorof one of the first copyright protection organizations and, actually, it accepted the activities of the existing organization. According to this statement no newly founded organization may be engaged in the above activities and this would result in creation of the monopoly in the country. In addition, the law wording is such that it cannot actually imply only one organization, e.g. “be collected by one of the collective management organization”, “apply to the relevant collective organization” etc. Hence, where the law mentions organizations in plural, it does not imply a single subject entitled to perform the activities.

– Yet, GCA particularly emphasizes the letter from Sakpatenti.

M. Gabashvili: Sakpatenti is the authority where documentation submitted by the collective management organizations are deposited, such as charters, international agreements, records of proceedings of the meetings etc. Sakpatenti is not an authority either registering or controlling collective management organizations, this is authority to which the documents are submitted. A user may dispute the tariffs with Sakpatenti but position stated by the organization is its attitude to the issue and therefore, their role in no case can be decisive.

– The artists apply to you and their opinion is of interest as well.

M. Gabashvili: many artists are dissatisfied with GCA activities, they were sincerely glad that GERA to GERA’s founding as sound competitive environment is always oriented towards the quality. 300 artists, authors have transferred to us their rights and we protect them.

– Some people said that there were cases of coercion from GCA-s side, is this true?

M. Gabashvili: the users told us that there were calls from GCA with apparent signs of blackmailing. For example, the users said that they called from the organization and demanded to make agreement with them, otherwise the entity would be subject to the fines or even forced to shut down. I have not heard anything like this personally, but as the representatives of the entities say, they talk to them very aggressively, they feel pressure and one of the users stated this at court.

In the opinion of KakhaberAslanishvili, the lawyer, GCA’s statement is the attempt of market monopolizing and inaccuracies in the law do not provide any favorable prognoses for the organization.

GCA regards that as it is registered and operates as the collective organization for copyright protection, it is entitled to collect the honoraria on behalf of the known and unknown authors, with respect of both, the copyright and related rights and no one else is entitled to do so,thus excluding duplication of the presumption and collection by the other entity. As, according to their logic, they collect everything and no double assumption may take place at market, so that the others could collect for the unknown right holders as well. This is their position very briefly. Why is their position wrong? Because the author loses the status of unknown as soon as he/she becomes known, i.e. as soon as he/she expresses his/her copyright in a form of specific artifact. He/she acquires the copyright or related rights that is transferred either to the other rightholder through direct agreement, concept of which is provided for by Georgian Law on Copyright and Related Rights, or to the other rightholder, other collective organization that is also specified by the mentioned Law, or to the natural person, via direct agreement or directly protects his/her rights. The court should exclude existence of presumption, as presumption, as a statutory concept, is onlya theoretical assumption that supposedly the other authorsexist as well and in the event of claim their rights should not prejudiced, i.e. someone should collect the honoraria on their behalf too. As soon as these authors request their honoraria, they lose their status of “unknown”. GCA’s statement that they should not seek their honoraria in several places is absurd as at market are only two organizations able to act on behalf of the artist. Hence, the artist would have to make two requests instead of one and this, certainly, is favorable for the artist as in the conditions of sound competition these two organizations would attempt to offer as good conditions as possible” – stated Aslanishvili.

– Though, before, GCA had monopoly at market and now it can hardly welcome the competitors.

Kakhaber Aslanishvili: possibly, its monopoly, in the historical context, was due to improper interpretation of some provisions by those who desired to found the organization. Possibly they regarded that they would vainly fight with GCA, but now the situation has changed. The matter is that the law provides number of provisions and in the event of compliance with them an organization has the right to exist and operate and this, as such, means that all, complying with these criteria, acquire the mentioned rights. As for the definitions provided in the law, in my opinion, they are inadequate and they should be revised. If GCA disputes one or two episodes, there are at least four episodes in our favor, clearly showing that provisions are made for more than one organization. In addition, 7 million works represented in Georgia are subject to GERA’s management – this means that the known repertoire, not subject to presumption, is at our disposal, GCA has no similar repertoire.When we submitted to thecourt the repertoire as evidence, the court had to exclude operation of presumption. We have borne ourburden of proof and evidenced our position and now GCA has to provide its repertoire but they are unable to do this, as they have no advanced technologies similar to those on which GERA relies.