27. 04. 2011

Broadcasters’ problems with OFPS and the lists of broadcast phonograms

In the end of 2010 and the beginning of 2011, legal proceedings for commercial offence of alleged not submitting the lists of broadcast phonograms to OFPS were initiated against many broadcasters across Serbia. These proceedings were initiated by OFPS by sending a series of complaints to RBA, which RBA, having been incompetent to deal with these complaints, forwarded to public prosecutors.

Working in the best interests of its stations, ANEM has undertaken a series of activities for solving this problem. Apart from the specific legal instruction, legal advice and other types of legal aid to stations as well as the public statement from January 24, 2011, two meeting were held at request of ANEM, both on February 10: the first, with the representatives of OFPS, which did not yield expected results in regard to the requested suspension of the proceedings, and the second, with the Intellectual Property Office, at which the representatives of ANEM presented all objections to the work and illegality of OFPS acts, also informing the Office on the initiated legal proceedings and their consequences for broadcasters. After that, on February 14, 2011, ANEM submitted its written request to the Intellectual Property Office for initiating the process of monitoring and control over the OFPS' acts, requesting undertaking urgent measures and protection of broadcasters from unacceptable treatment by OFPS. In its request, ANEM pointed at non-transparency, illegality and collision of the OFPS' acts regulating this issue, stressing, among other things, the following: non-conformity of the OFPS Rules about the notification of broadcast phonograms by the broadcasters with the OFPS Tariff, that prescribes that submitting the list in the OFPS form is only one of the alternatively envisaged ways of submitting the program files; the non-conformity of these acts with the relevant provisions of the Law on Copyright and Related Rights; legal uncertainty regarding the procedure of submitting the lists of broadcast phonograms, since the broadcasters are not aware which act they shall abide by; too wide authority of the collective organization to reject the complete list due to a minor omission or even to impose a fine. The said problem was the topic of the meeting held on March 2, 2011, with the representatives of Public Prosecutor's Office (PPO), at which it was agreed that PPO would issue, after considering all related facts, the instruction for all prosecutor's offices on acting in cases of legal proceedings for commercial offence initiated against broadcasters on the basis of OFPS' legal claims.

Acting on the ANEM request for performing monitoring and control over the OFPS' acts, the Intellectual Property Office found numerous irregularities in the work of OFPS and its acts, accepting almost all ANEM objections and requests. In accordance with its finding, the Office has also ordered the organization to remedy these irregularities, requesting from OFPS to bring into agreement, within the given deadline, the disputable articles of the Rules with the Tariff and the Law in accordance with the Office's instructions. The Office's notice to ANEM from April 6, 2011, containing all ascertained irregularities in the work and acts of OFPS and orders to OFPS, was submitted to the Prosecutor's Office by ANEM in order this Office could issue without delay the instruction for local prosecutor's offices on acting on legal claims related to commercial offence initiated against broadcaster for alleged not submitting the lists of broadcast phonograms.

At request of ANEM, the Intellectual Property Office organized the meeting on April 19, 2011, attended by the representatives of ANEM, RTS, national broadcasters, OFPS and SOKOJ, with the aim to discuss the improvement of the communication between OFPS and its users regarding the submitting the lists of broadcast phonograms. At this meeting, it was agreed, among other things, that possibilities for uniforming said lists of OFPS and SOKOJ needed to be considered, which would significantly facilitate the broadcasters' fulfilling of this obligations, which was in the interest of the collective organizations, too. After this meeting, the representatives of OFPS, SOKOJ and ANEM agreed to hold another meeting dedicated to this issue, that would be held in the beginning of May at ANEM premises.