6 May 2011 № D-582/2011
The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman of the Constitutional Court of the Republic of Belarus P.P. Miklashevich, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, V.P. Isotko, V.V. Podgrusha, L.M. Ryabtsev, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov
on the basis of part one of Article 116 of the Constitution of the Republic of Belarus, subpoint 1.1 of point 1 and point 3 of the Decree by the President of the Republic of Belarus of June 26, 2008 No. 14 “On Certain Measures to Improve the Activities of the Constitutional Court of the Republic of Belarus”
in open court session in the exercise of obligatory preliminary review examined the constitutionality of the Law of the Republic of Belarus “On Copyright and Neighbouring Rights”.
Having heard the reporting judge V.P. Isotko, having analysed the relevant provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Law of the Republic of Belarus “On Copyright and Neighbouring Rights” and other legislative acts of the Republic of Belarus, the Constitutional Court found the following:
The Law of the Republic of Belarus “On Copyright and Neighbouring Rights” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on April 27, 2011, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on April 28, 2011 and submitted for signing by the President of the Republic of Belarus.
The Law governs the relations arising from the creation and exploitation of scientific, literary and artistic works (copyright), of performances, phonograms, programs of broadcasting or cable distribution organisations (neighboring rights). It clarifies, in particular, the provisions relating to proprietors and subject matter of copyright and neighbouring rights, it determines the scope and time-limits of these rights, the conditions for transfer and assignment of the exclusive right to a work or matter of copyright or neighbouring rights, the procedure administering the economic rights of authors and other rightholders and the procedure of copyright and neighbouring rights protection.
When examining the constitutionality of the Law the Constitutional Court proceeds from the following.
1. According to part three of Article 21 of the Constitution, the State shall guarantee the rights and freedoms of citizens of Belarus that are enshrined in the Constitution and laws, and specified by the State's international obligations.
One of the constitutional freedoms is the freedom of artistic and scientific creativity (Article 51 of the Constitution). The results of creative activity appear as intellectual property, which shall, in accordance with part three of Article 51 of the Constitution, be protected by law.
There are provisions similar to the mentioned constitutional rules in the Universal Declaration of Human Rights (Article 27) and the International Covenant on Economic, Social and Cultural Rights (Article 15), providing for the freedom of creative activity and everyone’s right to the protection of his moral and material interests resulting from it.
The Constitutional Court considers that the provisions of the Law are aimed at the development of these constitutional rules and the formation of a legal mechanism to uphold constitutional guarantees and international obligations in the field of copyright and neighbouring rights with regard to the principles of protection of authors' rights and neighbouring rights enshrined in the Berne Convention for the Protection of Literary and Artistic Works of 1886, the World Copyright Convention of 1952, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 1961 and other international treaties, to which the Republic of Belarus is a party.
2. The Republic of Belarus has been declared to be a state, based on the rule of law and bound by the principle of supremacy of law (part one of Article 1 and part one of Article 7 of the Constitution). These constitutional provisions involve certainty and consistency in the legal regulation of social relations.
The Law specifies the persons recognised as authors of audiovisual works (article 12), individual moral rights of the author and performer (articles 15, 25), rights of authors and employers to a service-related work (article 17), as well as cases of free exploitation of works and matters protected by copyright and neighbouring rights (chapter 4).
The Law introduces the regulation of the activities of the organisations for collective administration of the economic rights of authors or other rightholders (chapter 6), that follows the generally recognised principles of such administration and is provided by the Agreement on the Common Principles of Regulation in the Field of Preservation and Protection of Intellectual Property Rights of December 9, 2010, concluded by the governments of the member–states of the Customs Union and ratified by the Republic of Belarus.
In view of the foregoing the Constitutional Court pays attention to the fact that the adherence to the principle of legal certainty makes the legal regulation of copyright and neighbouring rights more precise, clear and logically consistent, increasing the level of their protection.
3. The Law stipulates that the exclusive right to a work shall belong to the author in relation to his work or another rightholder. It means the ability to exploit the work at his discretion, in any form or by any means, to allow or prohibit others from exploiting it (point 2 of article 16); the proprietors of neighbouring rights shall have similar exclusive rights in relation to the matters protected by neighbouring rights (point 2 of article 25, articles 28 and 29).
However, the rules of chapter 4 of the Law provide for cases of exploitation of works and matters protected by copyright and neighboring rights without the consent of their authors or other rightholders, including the reproduction of a lawfully disclosed work ad litem, the reproduction of works for the blind and visually impaired, the exploitation of works for educational and research purposes in the media, as well as by libraries and archives. Thus, the Law imposes restrictions on the exercise of exclusive rights by the authors, other rightholders. Some of these restrictions are additional in comparison with the existing legal regulation. For example, the reproduction of a work for the purposes of criminal proceedings or in the arbitration shall be permissible without the consent of the authors (point 4 of article 32). The public performance of works by non-professional performers and non-professional artistic teams without a profit (point 6 of article 32), the reproduction of works and matters protected by neighbouring rights for personal use (article 35) shall also be permissible without the consent of the authors.
Article 23 of the Constitution permits the restriction of personal rights and freedoms only in the instances specified by law, in the interests of national security, public order, protection of the morals and health of the population as well as rights and freedoms of other persons. Based on this constitutional rule, the Constitutional Court considers the restrictions imposed by the Law to be legally permissible as they are provided by law; socially justified as they are intended to achieve the constitutional and significant purposes related to the public order and to ensuring the rights and freedoms of other persons in the cultural life and as they do not distort the essence of the exclusive rights of authors and other rightholders.
4. Under part one of Article 60 of the Constitution everyone shall be guaranteed protection of his rights and freedoms by a competent, independent and impartial court. In the decision of the Constitutional Court of December 3, 2008 “On the calculation of procedural time-limits in the administrative proceedings” it was noted that the guaranteed judicial protection is connected with the lawful and justified court ruling, with the ability to review and revise it, including by means of appeal as established by law.
Article 48 of the Law specifies the decision-making procedure by an authorised state body on state accreditation or refusal of state accreditation, its early termination in relation to the organisation for collective administration of economic rights. At that the right to appeal against these decisions before the court is provided only if state accreditation is refused, although its early termination may also present the violation of the rights of organisations for collective administration of economic rights.
According to the Constitutional Court, in case of early termination of state accreditation the organisations for collective administration of economic rights should be guaranteed the judicial protection of their rights and legitimate interests as established by law.
The Law is based on the constitutional principles and rules, and generally aims to improve the legal regulation of relations in one of the areas of exclusive rights in relation to the results of intellectual activity.
In view of the foregoing, the Constitutional Court deems the Law not to be in conflict with the Constitution as to the content of its rules, the form of the act, the procedure of its adoption and as regards the distribution of powers between the subjects of the legislative procedure.
Guided by parts one, seven of Article 116 of the Constitution of the Republic of Belarus, parts eight, thirteen, fourteen of article 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges, subpoint 1.1 of point 1 and point 3 of the Decree by the President of the Republic of Belarus of June 26, 2008 No. 14 “On Certain Measures to Improve the Activities of the Constitutional Court of the Republic of Belarus”, the Constitutional Court of the Republic of Belarus
RULED:
1. To recognise the Law of the Republic of Belarus “On Copyright and Neighbouring Rights” to be conforming to the Constitution of the Republic of Belarus.
2. The present decision shall come into force since the date of its adoption.
3. To publish the present decision in accordance with legislation.
Presiding Officer –
Chairman of the Constitutional Court
Republic of Belarus
P.P. Miklashevich