New edition of Uzbek Law "On copyright and related rights" complies with international standards

The new edition of the Law of Uzbekistan "On copyright and related rights" entered into force as of 21 July. The law is intended to reinforce substantially the measures against violation of copyright and related rights.

Uzbek Republican Copyright Agency, one of the main participants in the development of the new edition of the law, is planning that within the next half-year the violations in this field will be brought to minimum. Deputy Director-General of the Agency, Alisher Hafizov, elaborated on the issue in an interview with BVV Business Report.

"The Law "On copyright and related rights" was passed on 30 August 1996. Since then, the law has not suffered substantial changes, except for the amendments introduced in 2000. However, during the past period, new forms of use of the works and objects of concurrent rights have emerged. This is another evidence of the continuous scientific-technological progress observed in an increasing number of countries, including Uzbekistan. Internet is one of the areas experiencing rapid development and expansion. These aspects had their effect on the development of copyright and related rights, as well as created a number of problems concerning illicit use of the results of intellectual activity, which may be solved only by means of settlement of the points of issue at the legislative level.

On 19 April 2005, Uzbekistan joined the Berne Convention and together with the other member-states it formed the Berne Union for the Protection of Literary and Artistic Works. This posed the need to introduce amendments to the existing legislation both for purpose of bringing related regulations to compliance with the abovementioned convention and for the purpose of expanding authors' rights.

Today, the Law complies with all the requirements of the Rome International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961), World Intellectual Property Organisation (WIPO) Copyright Treaty and WIPO Performances and Phonograms Treaty.

Inconsistencies and ambiguous phrasings contained in the old edition were eliminated upon revision. The conceptual framework of the law was expanded, several provisions on the payment of copyright royalties to the authors were included, conditions regulating the issues of the payment of royalties to the authors of the intellectual works, performers and producers of phonograms for reproduction of the audio and video works and phonograms for different purposes ("home copying") were established. The provisions regulating the activity of organizations in management of the property rights of the authors of intellectual property, performers and producers of phonograms and other copyright owners on collective basis were included. The regulations concerning the accountability and sanctions applied for violation of the law on copyright and related rights were established. All of these should undoubtedly improve the law enforcement practice of the Uzbek legislation on copyright and related rights and create a framework for Uzbekistan's accession to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) in the case of Uzbekistan's accession to the World Trade Organisation.

- Speaking specifically of the new edition of the Law, the first thing that attracts your attention is the list of new terms, which has expanded substantially. Could you please tell about the amendments introduced in the Law "On copyright and related rights"?

- The Law includes a new glossary of terms used in the field of copyright and related rights, to eliminate any ambiguities which may arise in interpreting the terminology, because the active legislation of Uzbekistan did not provide the definition of the concepts and terms used in practice on the territory of Uzbekistan and in the majority of developed countries of the world. Moreover, the glossary included in the new edition of the Law makes it easier to understand the regulations on copyright.

After studying the experience of developed countries, we decided to clarify any ambiguities about a particular concept or term. Some of the terms substantially limited the provisions and resulted in contradictory reading of the law. Thus, in the previous edition of the Law, the term "publication" was used both for "communication of information to public" and "the issue of printed material". In view of this, a new term, "public announcement", was included in the new edition of the Law.

This concept is broader than "publication", which limited the authors' rights or led to misunderstanding about the entrance into action of the copyright.

Moreover, the new edition of the Law introduces the concept of "bringing to public's notice". It primarily relates to the objects of copyright posted in the Internet. This is one of the regulations introduced around the world in the mid-1990s and included in the new edition of the Law of Uzbekistan.

During the past few years Internet has been growing in popularity. Today many literary and artistic works are posted on electronic portals.

Prior to the publication of the new edition of the law, authors did not have the right to post their works on Internet. Accordingly, they could not pass this right on to anyone. Any Uzbek movie place on Internet automatically became the violation of the legislation. After the adoption of the new edition of the law, immediately a point of conflict came up about the settlement of disputes with the providers. Today, several companies provide this service on the territory of Uzbekistan. They have their file storerooms that contain a great number of movies, music, etc. With the adoption of the new edition of the Law, all this is automatically considered to be copyright violation. First of all, there is no agreement permitting the placement of works on the Internet, and secondly, not a single producer of the movie, who knows his rights, would simply pass it on for distribution and reproduction on Internet for nothing. According to the new edition of the Law, these organizations will be ordered to delete all file storerooms or sign agreements permitting the use of works.

- From this we can expect that from now on, in accordance with the regulations included in the legislation, penalty measures will be taken for any copyright violations not only against Internet users and providers, but also those who work in audio and video production?

- As for the penalty measures, it is important to note that the old edition did not provide a clear definition as to what constituted a copyright violation. The new edition solved this issue. Thus, the Article 62 of the Law "On copyright and related rights" provides an extensive list of violations of copyright and related rights. The owner of the copyright has the right to require that penalty measures are applied for violation of the established regulations. Moreover, the objects produced with violation of the copyright are considered counterfeit, and are subject to confiscation and destruction.

Within the next half-year, the situation about the copyright violations in the market of audio an video-carriers is to change dramatically in Uzbekistan.

Article 66 of the Law envisions confiscation of the products and objects of concurrent rights used with violation of the copyright and related rights law. Confiscation applies not only to the products (audio- and video-carriers), but also the equipment used for their production and reproduction, and other tools used in violation of the law. Further, in line with the court procedure, they are subject to destruction. The sanction, as itself, is very tough, but this is one of the conditions of the Berne Convention.

Besides, the issue of Uzbekistan's accession to Geneva Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms (1971) is currently being considered.

It is worth mentioning that while Berne Convention is aimed at protecting copyrights for literary and artistic works, Geneva Convention establishes the regulations for the protection of producers of phonograms against illegal duplication of their phonograms.

According to the information provided by the International Federation of the Phonographic Industry (IFPI), the annual losses suffered by the phonographic industry of the world as a result of counterfeit records total US$2 billion, or about 10% of the total industry turnover. In countries, where counterfeit is a common thing, the income earned on unsanctioned operations often exceeds the earnings of local phonographic industry several times. In Uzbekistan, many domestic record companies suffer as a result of the unauthorized reproduction of records. The production of one licensed CD costs them a lot: the price includes royalties to the author, taxes, promotion expenses, while another person simply copies the CD at minimal cost, pays no taxes, and basically benefits from someone else's efforts.

International practice in this field indicates that in the effort to protect the authors and other copyright owners, governments reinforce the sanctions for violation of the intellectual property rights up to imprisonment.

To protect the authors, phonogram performers and producers of audio and visual works (films), the Agency has developed a mechanism of implementing the measures envisioned by the legislation by means of law enforcement agencies. In the short future, it is planned to conduct inspections across the regions of Uzbekistan for the purpose of checking the market for compliance with the legislation on copyright and related rights.

- If counterfeit products are removed, it would mean that original copies, licensed CDs and cassettes, would saturate the market, which, in the long-run, is a positive change: consumers will be able to purchase high quality products, and authors will be protected against "pirate copies". However, all these changes should have their effect on the price of records. Is the Uzbek consumer ready to accept these changes?

- All that is envisioned in the Law will be implemented gradually and consistently. It is planned that at the early stage of implementing the law we will be working with the producers of unlicensed products, encouraging them to sign agreements with the copyright owners. If the suggestion is not accepted, sanctions envisioned under the legislation will be applied. At the next stage, we are planning to eliminate piracy at the places of distribution; that is stores, retail markets, etc. For instance, when Microsoft entered the market of Uzbekistan, we made an agreement on so-called "shockless" actions. Of course, at this point it is hard to find consumers at the prices charged by the company. But on the other hand, what Microsoft offers is the same as the music or movie that has an author. If a person wants to use it, he should pay a corresponding price. These are the normal conditions of a civilized market. As for the domestic producers, the new measures should not have a significant effect on the prices.

- How will the control over the implementation of the law, particularly, over the copyright violations, be exerted?

- The Agency will exert control over the implementation of the law. At this point, a system of inspector is being formed. The law says that a specifically authorized inspector of the agency will have the right to check any business entity using products or objects of concurrent rights for availability of the agreement with the copyright owners for the use of licensed products. It is also planned to create associations for collective management of copyright and related rights. That is, authors will have the opportunity to establish single price for the use of their works by means of these associations.

The agency also plans to sign contracts with television and radio channels using copyrighted products, which, under the legislation, will entail the payment of royalties to the author.

The new edition of the Law "On copyright and related rights" provides a clearer definition of the copyright for musical works, specifically designed for sound and video recordings (movies, films, videos, etc) for the payment of royalties for public performance of this musical work.

It also establishes the order of collection and its allocation to the author of the musical work. Thus, for each performance of the copyrighted object a royalty will be paid to the author. Copyright legal system is intended to provide maximum protection to the authors, and motivate them to produce new works. In order to develop their talent and encourage them to create, we have to give those individuals incentives, namely remuneration in return for permission to make use of their works. Thus, it does not matter, whether the author sold copyright to a third party. The royalty for public performance will be paid directly to the author, and not to the person who bought the author's rights for royalties. Under the new edition of the Law, such deals contradict the legislation.

It is also worth mentioning that royalties to the author should be paid for any use of the work. At the same time, according to the Law, the work is considered to be used regardless of whether the work is used for the purpose of making profit or without such purpose (article 19). In other words, any person, who uses the work, should "share" with the author his income or other benefit.

- The new edition of the Law includes a new chapter entitled "Collective Management of Copyright and Related Rights", what sort of organization is this and what are its functions?

- In general, Collective Copyright Management is the agency intended to assist effective implementation of these rights by the authors themselves, and support authorized use of works and cultural achievements. In the modern society, collective administration of authors' property rights is viewed as one of the most suitable approaches to building population's respect towards the works being used and rewarding artistic labour accordingly, which at the same time allows the public to get a quick access to the constantly growing cultural wealth.

In this case, we have to look at an example. For the purpose of compliance with the legislation on copyright and related rights, any person using a product should sign a corresponding contract with the author.

For instance, a radio station using thousands of music works every day is required by the law to obtain the permission of each author and pay him or her royalties. But the radio stations cannot physically sign such a large number of contracts with the authors. In view of this, collective management of copyright is established uniting all authors, and these associations issue permits on behalf of all authors, which substantially simplifies the interaction with users (broadcasts and cable programmes, etc).

The old edition of the law paid insufficient attention to the issue of management of property rights of authors, performers, and producers of phonograms and other owners of concurrent rights, which are so important in contemporary life. There was only one article granting copyright owners the right to form organizations responsible for the management of copyright and related rights.

The new edition of the law solves this issue by introducing provisions regulating the order of creation, the objectives of collective management, the functioning and obligations of these organizations in a special section dedicated to collective management of copyright and related rights of copyright owners, whether authors, composers, publishers, writers, photographers, musicians, or performers. Broadcasting organizations are not included in the list, as they are considered users, even though they have certain rights in their broadcasts. Thus, the law regulates the aims and situations of collective management of copyrights for different categories of copyright owners, the functions and tasks of such orgnisations, which creates favourable conditions for the formation and development of the activity of the organizations for collective management of copyright and related rights. It is worth noting that many specialists in the field claim that collective management ensures effective functioning of the mechanism of protection of the rights of authors, performers, producers of phonograms, and other categories of copyright owners, of collection and appropriation of the reward.

At this time, the functions of copyright management are laid upon the Uzbek Republican Copyright Agency, which will soon start signing contracts with the users.

- What was the response of the international experts to the new edition of the Law?

- The draft law prepared by the Agency was revised and discussed by all parties and departments concerned several times. The Law was then directed for examination to international experts in the field of copyright and related rights. In particular, the Senior Legal Counsellor of WIPO Copyright Law Division Mr. Boris Kokin and WIPO Deputy Director-General and author of WIPO Internet Treaties Mr. Mihбly Ficsor gave a very high mark to the new law and noted that it corresponded to the international standards for copyrights and related rights. During the roundtable held at the Legislative Chamber of Oliy Majlis (parliament), Russian expert in the field of copyright and related rights, one of the main authors of the Russian Law "On copyright and Related Rights" Professor Mikhail Fedotov highly appraised the developed law draft. He said that the new edition of the Uzbek law excludes some of the mistakes present in the legislations of several CIS countries, and expressed hope that the adoption of the law in Uzbekistan would serve as an impulse for the introduction of amendments to the Law of the Russian Federation "On copyright and related rights".

Note:

Uzbek Republican Copyright Agency was formerly the Branch of the All-Union USSR Copyright Agency. Following the independence, pursuant to the Resolution of the Cabinet of Ministers of the Republic of Uzbekistan dated 30 January 1992 No. 38, the agency was reformed into State Copyright Agency of the Republic of Uzbekistan, and later pursuant to the Resolution of the Cabinet of Ministers of the Republic of Uzbekistan dated 13 August 1994 No. 413, the organization was given a state status.

In line with the Decree of the President of the Republic of Uzbekistan dated 9 December 2003 No. PD-3358 "On improvement of the system of republican government agencies", as well as for the purpose of protecting copyright and related rights, the Cabinet of Ministers adopted a Resolution dated 16 June 2004 No. 286 "On improvement of the activity of the Uzbek Republican Copyright Agency", which defined the key objectives of the agency.

Pursuant to this Resolution, the Agency was included in the list of government organs. The main objectives of the Agency are to implement single state policy in the field of copyright and related rights; to implement and protect copyrights of authors, their successors, and other copyright owners based on contracts; to take measures to prevent violations and recover violated copyrights and related rights; to register scientific, literary and artistic works, as well as their authors; to keep the record of legal entities and private individuals using copyrights and related rights on the territory of the Republic of Uzbekistan; to represent and protect, in accordance with the established order, the rights and legal interests of authors, their successors and other owners of copyrights and related rights in Uzbekistan and abroad; and develop international cooperation in protection of copyright and related rights.

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