Copyright: tough debate in the music union about law – Courts – Justice

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The demanded norm is article 68 of Law 44 of 1993, which establishes that the holders of the patrimonial right of author receive at least the 60 percent of compensation that is obtained in the collection by disclosure or public execution of the work.

In addition to that, says the plaintiff, arbitrary scenarios are created for some interpreters or holders of related rights, given the current dynamics of the market.

In the middle of the study, several organizations and artists have sent concepts for and against knocking down this provision.

In reality, what occurs is that said holders must conform to obtaining less favorable negotiable conditions with respect to other rights.

Those supporting the lawsuit include record labels such as Universal Music Colombia, that he told the Court that the norm obliges copyright holders and those who negotiate with them to adopt basic conditions, eliminating the freedom of the holders to choose the way in which contracts are developed.

“If the purpose of the regulation is to protect the participation of the holders with respect to the gains derived from the economic rights, in reality what occurs is that said holders must conform to obtaining less favorable negotiable conditions with respect to other rights since they do not have how to negotiate their participation regarding public communication or disclosure of the works, “said the company.

Moose Acosta

Alci Acosta sent a concept asking to tear down the rule.

“The relationship between copyright and related rights is one of neighborhood and independence, never one of hierarchy,” he argues.

Actors Colombian Society of Management He also asked to knock down the defendant section and said that it violates equality and that it would imply that they have to go to a cinematographic exhibitor to start the negotiation process and would have to inquire about the payments that other collective management associations and other owners of works have already made. and apply 40 percent.

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“The above is not equitable, taking into account that the vast majority of the exhibited productions depend on image and voice actors or dubbing of the SCG Actors repertoire and the musical incidence, for example, could be low, with which the The actors’ fee would be even lower for no reason, ”they say.

The National Association of Media (Asomedios), stated that, in his opinion, the norm violates the private will and the principle of equality, limits the negotiation capacity that the holders of one or another right have, and affects the negotiation and self-determination capacity that the users of works have. , performances, phonograms and other elements protected by copyright or related rights.

“There is really no differentiation between owners of related and author’s economic rights that allows justifying the prevalence of one right over the other. All holders should be equal before the law. The law should not value more the actions of a person considered an author over a person considered an interpreter, it must be the market according to the particularities of each business, type of work or product and particular situations that can make an assessment of intellectual property protected by copyright or related rights in order to establish their remuneration ”, said the association.

For its part, the International Federation of the Phonographic Industry said that in the region there are no recent laws that make a differentiation in the remuneration of authors and holders of related rights, but rather that there is equal protection of rights over works, performances and phonograms “in the understanding that the protection of these rights is framed in an open market of free negotiation ”.

The Colombian Association of Phonographic Interpreters and Producers (Acinpro) considered that many times a work without an interpreter would remain anonymous or unpublished, and an interpreter without a work would not have raw material to show their interpretation, and that without a producer they would not be able to carry out all the marketing and advertising work. and distribution, making the music known.

For this reason, for the association an equal economic treatment is necessary for both classes of holders: “This is 50 percent for the Copyright (author – composer – publisher) and 50 percent for related rights (performer – performing artist – phonographic producer), there being nothing that constitutionally justifies the difference that the demanded norm enshrines ”.

The Center for Intellectual Property Studies of the university extership of Colombia supported the lawsuit, considered that there was unjustified differential treatment and also drew attention to cases in which copyright and related rights do not always coincide with the creator of the work, since these rights can be held by third parties as heirs, legatees or any third party that
has acquired the rights through a contract of assignment or commissioned work.

SAYCO

The Society of Authors and Composers of Colombia (Sayco) asked to maintain the standard.

“It can be received by any third party who has become the owner derived from them, to the detriment of the principles of equality, autonomy of private will and contractual freedom.”

On the other hand, the Office of the Attorney General of the Nation has already presented its concept in this regard, in which it supports the lawsuit and asks to overturn the defendant because I consider that it violates the autonomy of free will and contractual freedom.

The supervisory body says that the rule does not take into account that the copyright owner is not always the creator of the work, as it can be transferred to third parties.

“While the rule in some cases could protect the creator of the work, in other events it safeguards whoever acquired the copyright who is not necessarily in a position of inferiority as is the case, for example, with entertainment entrepreneurs.”

In the concept you presented RTVC, the country’s public media system, did not express a specific position, although they told the Court that it should examine whether copyright and related economic rights fit into a single category of intellectual property economic rights that should be similarly valued, or whether there is a “hierarchy among them that, by virtue of the legislative power
of the Congress, they base the stipulation of more favorable conditions for the holders of copyright over the holders of neighboring rights ”.

On the side of asking to maintain the norm, the Society of Authors and Composers of Colombia (Sayco), which considered that the provision seeks to “try to balance a relationship that in practice is unbalanced; recognizing a minimum percentage of what is obtained by remuneration of the public communication of the works. Eliminating this article would be a regressive measure in the protection of a human right: the right of every person to the protection of the moral and material interests that correspond to him by reason of the scientific, literary or artistic productions of which he is the author, according to the Article 27 of the Universal Declaration
from the human rights”.

In the same way, the Faculty of Law of the University of Cartagena asked the Constitutional Court to maintain the norm as it is.

The fact that I perform a musical work does not commercially limit the author in any way, on the contrary

“The percentage discrimination in remuneration that is imposed by law only generates differences in artistic performances of equal musical importance, since I consider that there is a perfect correlation of equality, talent and creativity in both rights,” he mentioned.

He added: “The fact that I interpret a musical work does not commercially limit the author in any way, on the contrary, surely if my musical performance is outstanding, this will help the diffusion of the work, it will be known by my fans and by any third party. , eventually other artists will want to record it, other users will want to have it in their television programs, it may be taken into account in advertising (regardless of my interpretation) and in general it will provide the author with a good memory for greater commercial exploitation, why then demerit my work? Additionally, I have not perceived this differentiation by owner in other countries, being also a performer of several foreign musical works ”.

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“The above supposes a discriminatory and unjustified treatment because each one must be free to negotiate their rates (…) in most cases it is because of the singer that a musical success is known, this does not mean that he is detracting from the importance of the work and the author, it is just that neither should be subordinate to the other (…) in Colombian territory we should all have the same protection and not as the norm, where they (the authors) have greater protection than
me ”, he said in his speech.

In the same way did Diego Galé, singer, director and music producer, who told the high court: “I believe that today it is vitally important to review all those regulations that offer unjustified discriminatory treatment, because the fact that I eat performer / performer decides to negotiate my royalties in my own way is not in any way detrimental to the author, since he will be able to see his claim fulfilled without having to check if they affect the interests of third parties ”.

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