This is stated by the Supreme Court of Cassation in the decision of April 30, 2020 in the case № 921/441/18.

THE ESSENCE OF THE DISPUTE

In the interests of the plaintiff, the organization filed a lawsuit to recover from the Company UAH 223,380 in compensation for property copyright infringement in connection with the defendant’s illegal (without appropriate permission) use of the disputed musical works in the catering establishment.

The court of first instance partially satisfied the claim, bringing the defendant to justice in the form of payment of compensation under paragraph "d" of Part 2 of Art. 52 of the Law of Ukraine "On Copyright and Related Rights" in the amount of UAH 48,000, in the other part of the claim was denied, with which the appellate court agreed.

POSITION OF THE SUPREME COURT

The CEC upheld the findings of the courts of previous instances in view of the following.

The courts of previous instances examined the evidence in the case, including a video recording of the defendant's copyright infringement, and found that such a recording was made in a cafe, where controversial musical works were played for the background sound of the institution.

Thus, the plaintiff proved, and the defendant did not deny the fact of public performance of the disputed musical works in the cafe, where business activities are carried out by the Company. The case file does not contain evidence to prove the granting of permission by a person who has the exclusive right to allow the use of such copyright objects.

Thus, rejecting the defendant's reference to his use of phonograms, ie objects of related rights under the contract, and not objects of copyright, because the video provided by the plaintiff, not recorded the performer of the work, which performs it with an instrument or singing, KGS The Sun noted the following.

The appellant in the arguments of the cassation appeal did not take into account that the public performance of the phonogram can not indicate the absence of copyright infringement only because the author and performers did not perform such personally (note, a similar legal position set out in the Supreme Court of 15 July 2019 in case № 921/440/18).

It is noted that obtaining permission to use related rights is not a ground for exemption from liability for copyright infringement, because when performing music in public in a public institution using any devices and processes there is a simultaneous use of several objects of rights, in this case , in particular:

- objects of copyright - musical works with text (Article 8 of the Law of Ukraine "On Copyright and Related Rights");
- objects of related rights - performances of musical works, phonograms with recording of performances of musical works (Article 35 of the said Law).

In this case, copyright can not be "absorbed" by related rights, just as related rights are not "absorbed" by copyright. The lawful use of related rights does not release the user from the obligation to settle with the author or another subject of copyright the use of copyright by obtaining the appropriate consent, payment of remuneration for the use of copyright.

Thus, the dispute in this case, as correctly noted by the appellate court, concerns the legality of the defendant's use of copyright and recovery of compensation for copyright infringement of the copyright subject and does not concern the issue of infringement of related rights. The courts of previous instances, having examined the evidence in the case file, came to the irrefutable conclusion that the defendant had infringed the property rights of the subject of copyright in connection with the misuse of the disputed musical works.

More details on the text of the resolution of the Supreme Court of Ukraine of April 30, 2020 in the case № 921/441/18 can be found at the link.