Copyrights regulate the relationships emerging from the creation of copyright works in the field of art, literature, profession, and science. Considering their content, we differentiate between moral, property and other copyrights. The subject matter is regulated by the Law on Copyrights and Related Rights (“Official Gazette of RS”, no. 104/2009, 99/2011, 119/2012, 29/2016 – decision of the Constitutional Court and 66/2019) (hereinafter: LCRR).
The rights considered close, i.e., closely connected or related, to copyrights presume the existence of copyright work and have their own subject of protection.
Phonogram represents a sound recording, an intangible asset embodied on a sound recording medium whose type determines which device it can be reproduced on. In accordance with the provision of Article 122 of the LCRR a phonogram is a recording of a specific sound, i.e., a sequence of sounds, recorded on a sound recording medium, unless the recording in question is included, i.e. integrated, in an audiovisual work. Sound recording means attaching sounds onto a medium which can be listened to, reproduced, or announced through a device. The sound is recorded by attaching it to a sound recording medium (i.e., CD, cassette, magnetophon tape, vinyl record), which subsequently enables the listening, reproduction, etc. of that sound. A phonogram is not a physical thing, and it’s important to distinguish it from the actual sound recording medium. It is necessary to have a device through which the phonogram is announced, so that the announcement is public, in a facility available to the public, in which case there is an obligation of fee payment for the public announcement of phonogram.
Phonogram producer is a natural or legal person taking the initiative and bearing the responsibility for the first recording of a certain sound or sequence of sounds, or that which represents sounds. A phonogram producer can also be a person that had produced a phonogram using the funds of another, but at their own risk.
Rights of phonogram producers is one of a total of six related rights defined and protected by The Law on Copyrights and Related Rights.
In the event that the phonogram is not issued or published in accordance with the law, the rights of phonogram producers will last for 50 years from the day of the first attachment i.e. creation of phonogram. If the phonogram Is not legally issued or published within the set timeframe, the rights will last for 70 years from the date of the first legal issue or publication, depending on which date comes first.
The producer of the issued phonogram is legally entitled to compensation for:
– phonogram broadcasting and rebroadcasting;
– public announcement of phonogram;
– public announcement of broadcast phonogram.
The phonogram producer may not waive the said right to compensation. What is crucial for the occurrence of an obligation for phonogram use compensation payment is not only that a person had performed an economic activity, but that the subject of protection had been used in its performance.
This compensation is collected from the user, in the form of a unique fee, based on the agreement on the collection and distribution of unique fee concluded between the organization for the collective realization of related rights of phonogram producers and the organization of the interpreter. There are no moral rights for phonogram producers, as is the case with authors and interpreters.
Phonogram producers can transfer their property rights to another person, and in that case the acquirer of rights of the phonogram producer is entirely equalized with the phonogram producer, in terms of rights and obligations.
Depending on the specific case, i.e., on the answer to the question of who organized and financed the production of the phonogram, authors, interpreters, or publishers cannot not be excluded, but it could also be any other person whose exclusive “task” had been the production of phonograms, without participating in the creation of copyright works themselves, their performance, advertising, or publication
For the purpose of better protection of own copyrights, phonogram producers in Serbia founded an Organization for the Collective Realization of Copyrights and Related Rights, registered for the protection of related rights, entrusted with the representation of the interests of phonogram producers through the collective realization of rights and the collection of fees for the use of their music in the Republic of Serbia, and subsequently the distribution of compensation to phonogram producers. “Organization of Phonogram Producers of Serbia – OFPS”, in accordance with the provisions of LCRR and the Law on Associations (“Official Gazette of RS”, br. 51/2009, 99/2011 – other laws and 44/2018 – other law), which performs its activity based on the Decision of the Intellectual Property Office, is the only Organization in the Republic of Serbia through which phonogram producers realize their property rights, i.e., are entitled to financial compensation for the broadcast and rebroadcast of phonograms, public announcement of phonograms and public announcement of broadcast phonograms.
OFPS has been appointed as the manager of ISRC codes on the territory of the Republic of Serbia by the “International Federation of the Phonographic Industry – IFPI“. An ISRC code (International Standard Recording Code) represents a unique code for identifying sound recordings, as well as music video recordings. Each recording is assigned a special code, and the recording is identified by that code around the world, and the code assigned in such manner cannot be changed. Sound recordings, i.e., music video recordings assigned an ISRC code, are identified by that code around the world regardless of the catalogue numbering or any other means of identification on a physical sound or sound and image recording medium.
Submitting the application for the assignment of ISRC is regulated by the OFPS International ISRC Handbook, which has determined that the recording (phonogram) rights holder can submit the said request with submitting the required documentation.
The purpose of the existence of such organization is enabling for the compensation belonging to different phonogram producers to be collected in one place, which makes the jobs of broadcasters, rebroadcasters and persons announcing phonograms or broadcast phonograms easier, seeing as how it would otherwise be difficult to reach the phonogram producer or phonogram producer’s right holder directly. The revenue in the form of fees collected from broadcasting, rebroadcasting, public announcement of phonogram, public announcement of broadcast phonogram, and from special fees, based on the Tariff which represents the organization’s general act establishing the level and means of determining the fee which the organization is charging the users for certain forms of using copyright works and subjects of related rights and special fee payers, is distributed by OFPS to rights holders based on the criteria set by the Plan of distribution. For the phonogram producer’s rights holder to be able to exercise their right through the Organization, they are not required to be its member.
