The dissertation is the first in domestic science special complex research of legal issues of public use of musical works in public places, in which the main attention is focused on materials of judicial practice of courts of economic jurisdiction, as the developed practical basis of realization of normative provisions of regulation of the corresponding legal relations for the purpose of further application in the activity of the newly formed specialized judicial institution – the Intellectual Property High Court. The work consists of three sections, which explore the legal aspect of the use of a musical work by authors and other subjects of exclusive rights to musical works as an object of economic relations – a commodity in order to profit from the results of their creative activities.
The specific features and peculiarities of such a cultural and social phenomenon as a musical work in the legal plane are studied, as a result of which the author's definition of a musical work as an object of legal regulation is given.
The status of the author and other holders of exclusive rights to musical works, the ability of such subjects to satisfy their subjective rights and legally protected interests in the exercise of certain powers to use a musical work are analyzed. As a result, it is installed that in the current state of legal support for subjective copyright has necessitated the consolidation at the regulatory level of specific ways of their implementation.
Special attention is paid to and general characteristics are given to the subjects of related rights who directly apply a musical work in their activity. First of all, they are performers of musical works: musicians and singers.
It is established that the performer of a musical work, which the legislator refers to the subjects of related rights, is the closest in its legal nature to the author of the work, and the result of his intellectual activity – performance by its characteristics can be attributed to copyright, and therefore its legal status is on the border of related rights and copyrights, however, more inclined to the latter.
The position is supported that, taking into account the specific features of the methods of copyright enforcement, the latter should be understood as specifically permitted by the provisions of civil law permits and prohibitions for holders of subjective copyright and persons who oppose them due to the absolute nature of these rights to make actions aimed at satisfying certain tangible or intangible interests of subjective copyright holders.
The focus is on the use of the work as one of the ways to exercise (implement) the author's powers, which is a qualitative feature of the process of exercising subjective civil law, indicating by what means, in what order, in relation to which objects took place subjective civil law in each case.
A proposal has been made to apply the concept of «use of the work» exclusively to the subject of copyright. Instead, it is proposed to apply the concept of «application of the work» to entities that use the work in their activities only for profit, but without the acquisition of property rights.
An analysis of the statutory rights and obligations of collective property management organizations in terms of their adequacy and compliance with the tasks set before the latter in order to protect the author from violation of his rights by other subjects of music is made.
Proposals have been developed to increase the efficiency of the exercise of powers by collective management organizations and to improve the order of interaction between the author and such organizations. The necessity of separation of the function of protection (including – judicial) of the author's rights to the work as one of the main functions of collective management organizations is substantiated. In particular, in order to improve the effectiveness of protection of property rights of authors, it is proposed to assign to the organization of collective management the right to protection of copyright objects that are under its management under a contract with the right holder, as discretionary.
