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Article

К разрешению правовой коллизии о выплате вознаграждения зарубежным кинокомпозиторам

Хозяйство и право. 2019. № 7. С. 19-27.

This article analyses the problem of the right to remuneration of foreign authors-composers for the public performance of their musical works included in a foreign film shown in the territory of the Russian Federation. The research gives the systematization and assessment of reasons for arguing parties on pro and contra the fee for remuneration paid to foreign cinema composers. The paper presents the questions formulated by the court on intellectual rights, which are crucial for cases on the subject matter. The first question is the recognition of remuneration right for foreign citizens and legal entities. The second question concerns the choice of applicable law for the determination of the addressee of the right and the possibility of its transfer under a contract. The identified problems required an analysis of the norms of Russian legislation, acts of international law, as well as modern interpretations of the provisions of the theory of copyright in the continental and Anglo-American legal systems. We have established that the norms of the Russian legislation, taking into account the principle of the national regime of the Berne Convention, require the payment of remuneration to foreign composers. The study revealed that the continental and the Anglo-American copyright doctrines solve the issue of authorship for legal entities in different ways. The Anglo-American model permits authorship for legal entities and provides mechanisms for its acquisition and transfer, while it recognizes to a limited extent an author’s moral rights that are considered inalienable in the continental doctrine. An analysis of the modern evolution of the continental copyright model in leading European jurisdictions revealed the dilution of authorship inalienability principle. We concluded that in the situation of convergence of legal doctrines, the issue of vesting foreign legal entities with the right to remuneration should be decided according to their domicile law. In conclusion of the paper, we give answers to questions posed by the court.