Суміжні права виконавців на цифровий контент: проблемні питання

The article is devoted to the study of problematic issues related to the distribution of performers’ related rights to digital content. The authors analyze certain categories of related rights objects in the context of extension of performers’ property and personal non-property rights to digital content. It is determined that the protection of performers’ property and personal non-property rights applies when their performance is digitally broadcast through the online platform of a digital content provider. In such a situation, the performer is entitled to remuneration from the supplier for the use of such performance. The same rule should apply to the use and distribution of previously unbroadcast performances recorded in phonograms or videograms. The author clarifies the legal status of phonograms and videograms as objects of related rights, since these objects can be directly converted into digital form and become the subject of agreements regulating the circulation of digital content. It is established that in case of transformation of a phonogram or videogram into digital form by converting a primary signal of any type into a digital signal, such a derivative phonogram or videogram will be considered a digital copy and will lose additional protection of property and personal non-property rights of its producers in accordance with the terms of the digital content supply agreement. Based on the analysis of case law, the author establishes that when entering into a contract for the supply of digital content which is the subject of copyright and related rights on the Internet, the supplier is obliged to obtain permission to use such a protected object or pay an appropriate fee to an authorized person (author or owner of related rights) for any use of the work. The author substantiates the need to improve the legislation in the field of copyright and related rights protection on the Internet by supplementing Article 1 of the Law of Ukraine «On Copyright and Related Rights» with provisions stipulating that in case of first-time recording of a phonogram or videogram in digital form, such recording will be considered digital content. It is determined that producers of phonograms and videograms are granted the exclusive right to use such works on the Internet. In the event that a phonogram or videogram becomes the subject of a digital content supply agreement, producers are subject to the protection of their property and personal non-property rights, with the possibility of compensation for damages in case of violation of these rights by the digital content provider.