Categories Judicial News

Suspension of decision no. 10/03rd of February 2012 of ORDA

On the 09^th of March 2012, in docket no. 1359/2/2012, the Bucharest Court of Appeal, Administrative and Fiscal Contentious Section, upheld the request of CREDIDAM (Romanian Center for Performers’ Rights Management) for the suspension of the execution of Decision no. 10/03^rd of February 2012 of ORDA (Romanian Copyright Office). Consequently, as from the 03^rd of February 2012, the payment of the remunerations for the radio broadcasting of commercial phonograms and of those published for commercial purposes or of the reproductions thereof by the radio broadcasting bodies will continue to be made to CREDIDAM

Suspension of decision no. 305/29th of December 2011 of ORDA

On the 26^th of January 2012, in docket no. 250/2/2012, the Bucharest Court of Appeal, Administrative and Fiscal Contentious Section, upheld the request of CREDIDAM (Romanian Center for Performers’ Rights Management) for the suspension of the execution of Decision no. 305/29^th of December 2011 of ORDA (Romanian Copyright Office).

Consequently, as from the 26^th of January 2012, all the economic agents who use artistic performances for ambient purposes will resume the payments to CREDIDAM.

Thank you for your solidarity and be assured that we will provide the same level of cooperation as until the issuance of Decision no. 305/29^th of December 2011 of ORDA. Please resume the use of the facility granted to you on www.credidam.ro.

IMPORTANT Suspension of decision no. 6/31st of January 2012 of ORDA

The Court of Appeal suspended the decision of ORDA (Romanian Copyright Office) for the temporary withdrawal of the operating permit of CREDIDAM (Romanian Center for Performers’ Rights Management), which is why the association will continue its activity pertaining to the collection of copyright and the distribution of money to the artists.

Suspension of decision no. 288/23rd of November 2011 of ORDA

This is to inform you that, as from the 18^th of January 2012, Decision no. 288/23^rd of November 2011 whereby ORDA (Romanian Copyright Office) granted to CREDIDAM (Romanian Center for Performers’ Rights Management) a deadline for compliance with the law until the amendment of the Memorandum of Incorporation with regard to the manner of revocation of agency agreements was suspended by the Bucharest Court of Appeal through the Civil Judgment no. 300/18^th of January 2012, issued in docket no. 10072/2/2011.

Until the ruling of the court as regards the cancellation of Decision no. 288/2011, the performance of Decision no. 288/2011 will be suspended, and the Memorandum of Incorporation of CREDIDAM will be applied in the form endorsed by ORDA on the 18^th of March 2011. Consequently, the revocation of the mandates will be made in accordance with the provisions of art.8, para. 10 of the CREDIDAM Memorandum of Incorporation.

Suspension of CREDIDAM

Yet another proof of the brutal and unprincipled intrusion of the politics: the Romanian Copyright Office abusively suspended the activity of CREDIDAM (Romanian Center for Performers’ Rights Management).

By Decision no. 6/31^st of January 2012, the Romanian Copyright Office (ORDA) temporarily withdrew the operating permit of the Romanian Center for Performers’ Rights Management (CREDIDAM), suspending its collective management activity. The invoked legal basis: the non-compliance with other two decisions (no. 229/04^th of August 2011 and no. 304/28^th of December 2011). CREDIDAM is ready to assert publicly, with evidence, that the reasons for the suspension are fictitious and that they represent an onerous interest.

In essence, things are as follows:

1. Decision no. 229/2011 refers to the compliance with the law by CREDIDAM, within 30 days from the issuance thereof. Conditions for compliance with the law: the start of the negotiations with the televisions (CREDIDAM is now in full arbitration procedure with them) and the start of the negotiations for public communication/ambient (pubs, discos, stores etc.).

CREDIDAM submitted requests to ORDA, on the 02^nd of September 2011 and on the 05^th of September 2011, save that ORDA did not issue Decisions for the establishment of negotiation commissions, based on the requests submitted by CREDIDAM. Currently, ORDA issued a decision for the suspension of the CREDIDAM activity, although it is obvious that the fault lies with ORDA.

1. Decision no. 304/28^th of December 2011 was issued after the control pertaining to public communication/ambient, which was completed on the second half of November 2011. Then, the ORDA representatives collected from the headquarters of CREDIDAM copies of a few thousands of documents from the organisation’s database. The purpose was to cover up Decision no. 305, issued on the following day (29^th of December 2011), removing off the liability of CREDIDAM the collection for public communication/ambient. The liability for the respective collection was granted immediately, upon request, to the ARAIEX Association (Artists’ Association of Romania), established by Adriana Bahmuţeanu Prigoană. CREDIDAM promptly filed a court action, and the decision of ORDA was suspended by the Bucharest Court of Appeal.

Decisions no. 229 and no. 304/2011 were challenged in court are the trial date thereof was set within 14 days, on the 15^th of February 2012.

Very important – In accordance with art. 138, index 3 of Law no. 8/1996: “The Decision may be subject to appeal at the courts of administrative contentious. In case of non-compliance with the final decision, ORDA will temporarily withdraw the notice stipulated in art.125 of the law.” Neither decision is final, all the more so that a trial date was set for them on the 15^th of February 2012.

In protest of the working manner of ORDA, all the televisions forming the arbitration commission refused to pay the fee of the 5 arbiters who carry out their activity under ORDA. Such fee currently amounts to Lei 7,500 per arbiter. Moreover, the televisions will challenge the arbitral award in court.

CREDIDAM has already informed the international associations it is affiliated to, because the rights of the foreign and Romanian artists which it represents are now in real danger. In accordance with the bilateral agreements, the external payments should have been made at the beginning of February, and because CREDIDAM is blocked, it cannot collect and distribute the ownership rights owed to the foreign artists.

CREDIDAM is the first Romanian association which performs the management of the intellectual property rights of performers. Established in 1996, with support from the Dutch Government, under the MATRA programme, the association counts more than 11,000 Romanian and foreign members. It is the signatory of 33 international bilateral agreements, entered into with similar associations from Europe and Canada. In Romania, CREDIDAM represents the interests of the foreign performers whose recordings are being used on the territory of our country. The interests of Romanian performers, who are CREDIDAM members, are represented and protected in the countries which signed the bilateral agreements with CREDIDAM.

Suspension of CREDIDAM

Iulian Vrabete, member of the Board of Directors of CREDIDAM:

The latest abuse of the current leadership was committed by the ORDA governmental body on CREDIDAM – the Romanian Centre for Performers’ Rights Administration!

Appointed to supervise the application of the laws on intellectual rights and to coordinate the activity of the organisations collecting such rights, the Romanian Copyright Office (ORDA) fancies itself as the master of such private law associations. According to the law, the Government’s unique role is that of ensuring coordination, and ORDA has been trying, for a few years, to bring the collected money under political control. Failing to do that directly, as it would obviously been unconstitutional, it chose the formula of setting up its own “home-grown” bodies, to whom it would transfer the collecting rights, so that the money is oriented in the pre-established direction.

For the performers’ rights, the Romanian Centre for Performers’ Rights Administration (CREDIDAM) has been functioning since 1996; however, it has been subject to a sustained denigration campaign, despite the fact that, in the last ten years, the controls performed by ORDA, by the Ministry of Finance, by the National Agency for Fiscal Administration and by the Fraud Squad failed to highlight any fraud.

Currently, CREDIDAM counts more than 11,000 members and represents artists from numerous countries based on the bilateral agreements concluded with international bodies or even directly, through the mandates issued by them.

A few months ago, a parallel body was set up in great secrecy: ARAIEX. Benefiting from the ORDA support, it received its operating permit in a great hurry. More than that, ORDA forgot to publish the respective permit on its official website, so that nobody could contest such decision. The reason for which a new body, having only three founding members, was so interesting, was the fact that it was established by Mr. Silviu Prigoană, PDL Deputy, and his wife, Adriana Bahmuţeanu-Prigoană. For those concerned, the two signed jointly the request for registering the ARAIEX name and logo with OSIM (State Office for Inventions and Trademarks). At the present time, ARAIEX counts less than 200 members. Almost all of them are folk music performers, all of them being connected to the Etno and Taraf television channels, which are owned by the above mentioned family.

After months of deliberate baffling and abuse, through aberrant decisions issued by ORDA, many of them suspended afterwards by the courts of law, the governmental body gave its supreme strike, issuing a decision for suspending the CREDIDAM activity. This is how the road was cleared for the new “home-grown” company, fact otherwise impossible to be imposed under normal conditions.

Of course, the decision can be challenged. No doubt that dozens of protest letters will continue to arrive from international organisations, which don’t believe in the fact that the money of their artists (some of them registered directly with CREDIDAM, such as Elton John, Celine Dion or Dire Straits) will reach the hands of a party-led company, and that, eventually, the justice will also be the one who will settle the problem.

You may remember the recent health law, according to which the money given by people to the State would reach several hand-picked private companies. One can observe the same tactics of the orange leadership, of performing an abuse and of taking advantage of the time obtained until the settlement in court, to line its rest.

Controls at CREDIDAM

5 days after the end of the last control, between the 14^th of November 2011 and the 25^th of November 2011, ORDA (Romanian Copyright Office) performed another control at CREDIDAM (Romanian Center for Performers’ Rights Management). The thematic of this control: read here. Actually, ORDA took advantage of such control and collected from CREDIDAM its entire database with the ambient users (bars, discos, restaurants, shops etc.), database protected by the Law on copyright and related rights itself. This database was created by CREDIDAM during its 15 years of activity. Message taken from www.orda.ro:

“Between the 3^rd and the 7^th of October 2011, the ORDA representatives will perform a prompt control at the CREDIDAM headquarters, based on the dispositions of art. 138(2) para. (1), corroborated with art. 138 para. (1) letter h). The objectives of the control are the following:

• the record of the collected amounts, by sources, for the period between 2008 and 2011;
• the distribution of the collected amounts, between 2008 and 2011;
• the status of the management mandates and of the managed repertory;
• the supervision of the way in which the distribution criteria were established, and of the manner of performing the actual distributions;
• the verification of the manner in which the administration fee was established and withheld, and of the use of amounts for joint purposes, others than the coverage of the real costs incurred with the collection and distribution activities”.

Here are some observations in relation to this message:

1. The control did not end on the 07^th of October 2011, but it will continue in the following week, i.e. between the 10^th and the 14^th of October 2011;
2. The control was not notified three days in advance, according to the dispositions of the control methodology, approved by Decision no. 310/11^th of November 2010 of the ORDA General Manager, methodology which is posted on orda.ro;
3. According to the same methodology, we quote: “the deadline for performing the prompt control is of three days, being subject to extension only one time”. As it can be seen, such control is being performed over a period exceeding the one stipulated in the methodology, respectively five days, and with a further extension.
4. The objectives proposed for the prompt control are actually objectives of the background controls performed in 2008, 2009 and 2010.

Concretely:

1. The amounts collected for 2008, 2009 and 2010 – were verified by ORDA on occasion of the background controls, the findings thereof being recorded in the minutes concluded on the respective date, submitted to ORDA and currently posted both on credidam.ro and on www.orda.ro.
2. The distribution of the amounts collected for the period between 2008 and 2011 was checked by ORDA on occasion of the background controls, the findings thereof being recorded in the minutes concluded on the respective date, submitted to ORDA, and currently posted on orda.ro. It is worth mentioning that the amounts related to the year 2008, until the 01^st of October 2008, are prescribed, and the amounts distributed in 2009, which are posted on www.orda.ro, do not correspond with the amounts communicated by CREDIDAM. We are not aware of the reason why other amounts than the real ones were posted on www.orda.ro.
3. The status of the management mandates and of the managed repertory – was checked by ORDA on occasion of the background controls, the findings thereof being recorded in the minutes concluded on the respective date;
4. The supervision of the way in which the distribution criteria were established, and of the manner of performing the actual distributions – was checked by ORDA on occasion of the background controls, the findings thereof being recorded in the minutes concluded on the respective date;
5. The verification of the manner in which the administration fee was established and withheld, and of the use of amounts for joint purposes, others than the coverage of the real costs incurred with the collection and distribution activities – was checked by ORDA on occasion of the background controls, the findings thereof being recorded in the minutes concluded on the respective date;

Minutes no. 8486/01^st of June 2010 – we quote: “this is a situation of the money collected by CREDIDAM, of the levied fee and of the spent amounts – year 2008 – fee amounted to 10.93%”.

Minutes no. 3003/03^rd of January 2011 – we quote: “for the year 2009, “the withheld administration fee…..  14.6 % from the total value of the transferred amounts.”

Minutes no. 1852/22^nd of July 2011 – we quote: “for the year 2010, “the withheld administration fee amounted to 14.82%”. 

Still on occasion of the controls performed at the CREDIDAM headquarters, ORDA ascertained that CREDIDAM did not have in the past and at the respective time expenses in the chapter entitled “the use of amounts for joint purposes, others than the coverage of the real costs incurred with the collection and distribution activities”.

For more details, please read the Minutes concluded on the 03^rd of October 2011 and on the 06^th of October 2011, as well as the CREDIDAM address no. 18.689/05^th of October 2011, whereby we requested copies of the two apprehensions underlying the last control.

Pursuant to the thematic control performed between the 3^rd and the 7^th of October 2011, ORDA issued Decision no. 268/2011, whereby it granted CREDIDAM 2 days for compliance with the law, more exactly for submitting certain documents at the ORDA Registration Office. See the Decision.

CREDIDAM requested for clarifications through address no. 19668/19^th of October 2011. See the address.

ORDA answered by address no. 12959/20^th of October 2011. See the address.

CREDIDAM submitted at ORDA, on the 21^st of October 2011, 13.15 p.m., together with the cover letter no. 19749, the documents indicated in the enclosed list of documents. See the address and the list of documents.

CREDIDAM challenged Decision no. 268/19^th of October 2011, issued by the ORDA General Manager. The prior complaint was submitted at ORDA on the 28^th of October 2011. Read here. After the challenge filed by CREDIDAM, ORDA tried to make up for the control minutes by address no. 13601/04^th of November 2011. Read here.

CONTROLS PERFORMED AT CREDIDAM in the first 10 and a half months of 2011:

ORDA

1. Background control for the year 2009, between the 29^th of November 2010 and the 03^rd of January 2011 (one month and 3 days);
2. Thematic control: 11^th of February 2011 – 22^nd of February 2011 (12 days);
3. Thematic control: 14^th of March 2011 – 30^th of March 2011 (17 days);
4. Thematic control: 16^th of May 2001 – 01^st of June 2011 (17 days);
5. Background control for the year 2010, started on the 04^th of July 2011 and ended on the 22^nd of July 2011 (19 days);
6. Thematic control: 06^th of September 2011 – 28^th of September 2011 (23 days);
7. Thematic control: 03^rd of October 2011 – 07^th of October 2011 (5 days);
8. Thematic control: 14^th of November 2011 – 25^th of November 2011.

National Agency for Fiscal Administration

9. Control carried out between the 23^rd of June 2011 and the 26^th of August 2011 (two months).

CREDIDAM was subject to the control of the Romanian State Authorities for 7 months and 16 days out of 10 months and a half of the year 2011.