The protection of producers’ rights is important as it has a certain artistic and creative nature100. It is related to the choice of work to be fixed, the selection of performers, the proper arrangement, rehearsals with the performers involved in the fixation in phonograms, and finally, the fixation itself, which results in the production of the phonogram.
The second stage of a producer’s work relates to the production of phonograms, and the third is the distribution of phonograms in the market. CNRA grants neighbouring rights to two types of producers – producers of phonograms and film producers.
I. Producers of phonograms. Moral rights of producers of phonograms:
Producer of a phonogram shall be the physical person or the legal entity that organizes the first recording and finances it.
Producers of phonograms have both moral and property rights.
International sources do not provide for the protection of the moral rights of producers of phonograms.
EU law does not protect their moral rights either.
Domestic law (CNRA) protects the right of producers to require that their name appear in the customary manner on the sound carriers and their packaging whenever recordings made by them are reproduced and distributed.
II. Property rights of producers of phonograms
Article 10 of the Rome Convention of 1961 provides for producers the right to authorise or prohibit the direct or indirect reproduction of phonograms made by them.
The WIPO Performances and Phonograms Treaty lays down four types of property rights:
right of reproduction. It represents the exclusive right of authorizing the direct or indirect reproduction of their phonograms, in any manner or form (Article 11);
right of distribution. The Convention defines this right as the exclusive right of authorizing the making available to the public of the original and copies of their phonograms through sale or other transfer of ownership (Article12);
right of rental. This is the exclusive right of authorizing the commercial rental to the public of the original and copies of their phonograms, even after distribution of them, by or pursuant to, authorization by the producer (Article 13) and
right of making available to an unlimited number of persons, which is the exclusive right of authorizing the making available to the public of their phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them (Article 14).
Unlike the Rome Convention, this Convention is not constituted upon the principles of national treatment and minimum Protection. The only factors for the granting of protection by the Convention are the performer and the producer’s nationality (Article 3).
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), lays down, in Article 14(2), the right of producers of phonograms to authorise or prohibit the direct or indirect reproduction of phonograms made by them.
In EU law, Directive 2001/29 and Directive 2006/115 provide for the following property rights of producers of phonograms:
the right to reproduce their phonograms (Article 2(1)(c) of Directive 2001/29);
the right to distribute their phonograms (Article 9(1)(b) of Directive 2006/115);
the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them (Article 3(2)(b) of Directive 2001/29);
the right of rental and lending in respect of their phonograms (Article 3(1)(c) of Directive 2006/115).
National provisions in CNRA
Property rights of producers of phonograms under national law
Producers of phonograms have five basic rights in “their set of property rights”, laid down in CNRA, which are as follows:
the right of reproductions and distribution;
the right of public performance, broadcasting by wireless means, and cable transmission and retransmission of a phonogram;
the making available to an unlimited number of persons, by wireless, cable or other technical means, of their fixed performance or part thereof in a manner permitting the access to be had from any place and at any time individually chosen by each one of those persons;
the right to authorise the import and export to third countries of copies of the phonogram in commercial quantities, irrespective of whether they have been manufactured legally.
the right to transform and synchronize the phonogram.
The producer may grant by contract certain rights
to third persons, including authors and performers of the fixed works.
- Rights of film producers Moral rights
In general terms, the producer of an audio-visual work is the person who provides artists with the infrastructure, resources and logistics necessary for the creation of their art. CNRA does not provide a definition of the term film producer. The definition of phonogram producers as the natural person or legal entity that organizes the first recording and finances applies to film producers
by analogy. The creation of products such as films and audio-visual works requires substantial funds, hence the need for adequate legal protection of intellectual property rights, in order to guarantee possible satisfactory reimbursement for these investments (ECJ Judgement of 13 July 2006 on the Commission/Portugal case, C 61/05, item 27).
Film producers are entitled to both moral and property rights.
International sources do not provide for the protection of the moral rights of film producers.
EU law does not protect their moral rights either.
Domestic law (CNRA) protects the right of film producers to require that the name or the title of the film be mentioned in the usual manner whenever the film is used.
- Property rights of film producers
Sources of EU Law
Several Directives deal with the separate property rights with respect to the use of cinematographic and audio-visual works. Firstly, this is Chapter II of Directive 93/83/EEC of 27 September 1993 on broadcasting programmes by satellite. Secondly, the right of reproduction and the right of communication to the public of works by making them available to the public are laid down respectively in Articles 2 and 3 of Directive 2001/29. Lastly, the right of rental and lending is set forth in Articles 2 and 3 of Directive 2006/115. In accordance with Article14bis of the Berne Convention, ownership of copyright in a cinematographic work shall be a matter for legislation in the country where protection is sought. The provisions of Article 1, § 5 of Directive 93/83 and Article 2, § 2 of Directive 2006/115 consider the principal director of a cinematographic or audiovisual work to be its author or one of its authors. The principal director of a cinematographic work, unlike the other authors of such work, shall enjoy the status of an author by virtue of EU law in all cases and irrespective of the national legislation’s stance. Member States may provide for others to be considered as its co-authors. So did the Bulgarian legislature by stipulating in Article 62 of CNRA that
copyright in a film or other audiovisual work shall belong to the director, the author of the screenplay and the director of photography. The copyright in cartoons shall belong also to the artist-director.
The rights of producers are protected as neighbouring rights.
National provisions in CNRA
Property rights of film producers under national law
Film producers are entitled to a “set of property rights” consisting of ten basic rights, provided for in CNRA. The producer of the initial recording of a film or other audiovisual work shall have, with respect to the original of the film and the copies thereof produced as a result of such recording, the exclusive right to grant permission in return for compensation for:
their duplication 101;
their public screening;
CNRA does not offer a definition of this concept. Screening is a form of communication to the public where an audio-visual work is transmitted to the public by any means, excluding wireless broadcasting and means which enable the public to listen to and/or watch it.
their public performance and broadcasting by wireless means;
their transmission and retransmission by cable;
their translation into another language, dubbing or subtitling;
the offering of access to the film or a part thereof to an unlimited number of persons, by wireless, cable or other technical means, in a manner permitting the access to be had from any place and at any time individually chosen by each one of those persons;
This is considered as a type of communication to the public, pursuant to paragraph 23 of the motives of Directive 2001/29.
the import and export to third countries of copies of the film in commercial quantities, irrespective of whether they have been manufactured legally or in violation of the right under item 1 or item 5.
their alteration and synchronisation.