News

15-06-2016

The length of a fragment is not always good excuse for using a fragment of a musical work without the author’s consent, – Tatiana Kharebava

The laws of different countries provide for exceptions to the general rule of authors’ monopoly of the products of their mental activity. These exceptions are set forth in separate policies and unusual sets of rules according to which objects of art can be legally used by third parties with no consent from copyright holders.

Tatiana Kharebava, a lawyer and Counsel at Spenser and Kauffmann, Attorneys at Law, about the restrictions upon the use of a third party’s musical work when creating new intellectual property items in her interview forZakon i Business:

– the ‘concept’ of intellectual property rights relies upon authors’ monopoly of the results of their mental activity. However, technological and creative progress of the humankind can be hardly possible without the use of previously created oeuvres. Therefore, the laws of different countries provide for exceptions to the general rule and restrict the ‘monopoly’ of authors. These exceptions are set forth in separate policies and unusual sets of rules according to which objects of art can be legally used by third parties with no consent from copyright holders. They include the ‘fair use’ policy in the USA, the ‘fair dealing’ policy in common law jurisdictions, ‘limitations and exclusions’ rules in civil law jurisdictions.

The Ukrainian restrictions of copyright include, inter alia, free citation of oeuvres as provided for Article 21 of the Law on Copyright and Related Rights. The Kyiv Commercial Court in its ruling dated May 26, 2015 (case N 910/11320/13), which can be regarded as a precedent because its legal determination was shared by the Supreme Commercial Court of Ukraine, determined that ‘citation shall mean using fragments of musical work lasting from 3 to 25 seconds in a TV-show during narrating/interviewing authors/performers of such musical work (so that audience can learn more about a respective author/performer creative work)’. In other words, the Ukrainian court presumes that using in a musical work another musical work without the consent of the author thereof is legal provided that the length of such use does not exceed 25 seconds (given that the total lengths of tracks does not exceed 3-5 minutes).

It should be noted that the length of a fragment is not always good excuse for using a fragment of a musical work without the author’s consent. Thus, the Court for Sport of England and Wales found illegal the demonstration in a TV-show of the eight-second fragment of a cricket match that lasted more than 2 hours because the fragment contained the highlights of that match. Therefore, the length of a fragment is not always a key factor, because a court takes into account, among other things, the content and the impact of a fragment.