Private Use on Musical Works, Rights of Public

Performance, and Collecting Society Systems. (1)

By' Judge Visit Sripibool *

Introduction

A current hot issue in developing countries is the problem of conflict of interests in royalty collecting for music in department stores, restaurants and Karaoke shops nationwide. Some groups want to collect fees directly by themselves, others want to collect on behalf of the collecting societies, while the entrepreneurs do not want to pay fees.

Even though the dispute of copyright interests mentioned above may not be called "crisis" right now, but it has shown a significant sign that it might become a big problem in the near future, which some aspects have already occurred. For example; in Thailand, an event was the protest of the society of Karaoke owners against the government's policy on this issue in few months ago.

However, finally, fees must inevitably be collected. The important question is that how is the best?

If fees for music mentioned above will be collected without the system, what will be going on? In theory, the problems would be as below;
1 Many enterprises of entertainment will face the cost of allowances that occur both high fees for music and many other rights of the copyright's owners.
2 The higher the music copyright fees will be paid, the infringement of copyrights will be higher.
3 Music businesses may be obstructive.
When there are the said problems, the questions on intellectual property rights will then be raised to discuss, inevitably, both the concept of the exclusive rights of the copyright owners and the concept of rights of users who have legitimate copyrighted works, moreover, the concept of private uses.

A classic question always raised is that why the owner of legitimate copyrighted works cannot freely use or play the legitimate copies without paying fees for the copyright owners, because they have already paid when they bought the copies? Why they cannot play music to entertain their customers without any direct charge to the customers.

How do we balance between the rights of owners and the rights of consumers? What will we choose between the money for the owner's rights and the entertainment for public? When do we focus on the economic rights, or do we concentrate on the public interests? These questions will respectively be answered later, otherwise the problems would be solved in their own process.

With the philosophy aspect, the copyright law is designed to achieve this objective by granting property right to authors that provide them with financial incentives to produce and distribute creative works. The user's right philosophy assumes that authors will only invest sufficient resources in creating and publishing new works if they will have ownership rights that will enable them to control and profit from their works' distribution to the public. So, actually, the concept of the copyright owner is the economic right. If we talk about the economic rights, unavoidably, we have to talk about the economic system. At present, the free market economic system disfavors monopoly unless there is a limited justification for them.(2) The question is whether the exclusive right of the copyright owner is a monopoly. Let see other philosophies. The United States'economy and the economies of most Western nations are based on the free market system and the belief that profits are the just reward for labor expended in creative endeavors. However, some other countries are based on different economic foundations and have different viewpoints on the concept of authorship. Many eastern economies are related to the religions of Confucianism, Buddhism, and Islam, which are more communally oriented. According to these countries' economic systems, profits should be shared within society. Under the authorship philosophies of some Asian countries such as Korea, creative works have historically been viewed not as private property belonging to their authors but as goods for everybody to share freely. In these countries, cultural esteem rather than financial gain was the main incentive for creativity. In feudal China, Confucian literary and artistic culture was based upon interaction with the past and discouraged bold innovation. Much of this background has survived in the people's Republic of China, which has been hostile to the concept of private ownership rights in intellectual property. However, China has been forced, due to foreign economic pressure, to adopt a copyright system highly similar to those of most Western nations. The forced nature of copyright is a probable reason for the enforcement problems that have been prevalent in China as well as other Asian countries. In many cultures, copying of copyrighted works is tolerated to a much greater extent than in the United States. In Islamic countries, where piracy is rampant, the rationale is that copying of original material should not be prevented since the most

widespread dissemination of knowledge benefits the public good. Similarly, in countries such as China, Taiwan, South Korea and Singapore, imitation and reproduction of ideas, art and scholarship are sometimes considered a token of honor and respect. In the concept of economic rights philosophy, American copyright law, although historically based upon the user's rights philosophy, also incorporates some of the author's rights philosophy. Actually, it may be more accurate to describe the current American copyright policy as an economic rights (or trade-based) philosophy. The United States is the world's largest producer and exporter of intellectual property. Copyrighted works account for over $457 billion (or 5.5%) of the annual gross domestic product in the United States. Copyright-related industries are also the fastest growing segment of the U.S. economy and employment in copyright related industries has grown at about three times the rate of employment growth in the economy as a whole in recent years, accounting for about 4.3 million jobs. Copyrights bring more revenue into the United States than any other major industry, including aircraft, automobiles and agriculture. As copyrighted works have become a larger part of international trade, they have also become one of the few positive components in the otherwise unfavorable United States trade balance (i.e., the U.S. imports more of just about everything than it exports). One major exception is copyrighted works, where the U.S. has a surplus trade balance with every country in the world. Although foreigners are not buying huge quantities of American physical products such as cars, stereos or computers, foreign sales of American intellectual property products such as music, movies, television programs and computer programs are substantial. Consequently, the United States has taken a much more active role in expending copyright's reach and enforcing copyright on an international basis, often without much consideration of either author's or user's rights. For example, the United States recently decided to extend the duration of copyright by twenty years. It seems unlikely that this additional twenty years of copyright protection will make authors more likely to create artistic works. In reality, the two primary motivating factors for the twenty year extension were: (1) to preserve many valuable copyrights (including the copyrights to several Disney characters such as Mickey Mouse and songs written by George Gershwin) that were about to expire; and (2) to bring the term of American copyright protection in line with many European countries. Although these reasons may be important, they have little to do with encouraging authors to create new works. These was no evidence presented to suggest that authors would be less likely to create new works without the additional twenty years of protection and, in fact, this issue was not even considered by Congress. The passage of the term extension amendment was due primarily to the lobbying efforts of the copyright owners of some very valuable copyrighted works such as Disney and the Gershwin estate, with only token consideration given to providing incentives to authors or public access. This goes against the ideological basis for copyright, but reflects the reality of our political system.(3)

Facts mentioned above have obviously shown that the reasons for protection on intellectual property works in each country are different. Those reasons are based on political, religious, economic, and cultural philosophical basis.

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(1)This paper is made for the ECAP II Research Programme, taking place at Queen Mary Intellectual Property Law Research Institute University of London, 1 September- 31 October 2002.
* Judge of The Central Intellectual Property & International Trade Court, Bangkok, Thailand. I am grateful to all those who give me a good opportunity for researching at a wonderful institute, Queen Mary Intellectual Property Research Institute, Queen Mary & Westfield College University of London. Especially, I would like to thank Mr. Johan Amand. Project Director of ECAP II Project who supports all of allowances in the periods of two months including flight tickets and accommodation, Ms. Gulsemin Bal, Project Assistant, who has completely arranged all for me, Professor Michael Blakeney, Director of Queen Mary Intellectual Property Research Institute, who warmly allows me to make a research here, Dr. Uma Suthersanen, lecturer of school of law, Queen Mary collage University of London, who is very nice for all information for making the research. Ms. Swee Ng, IP Units staff, who has friendly helped me for all in London.

(2) David J. Moser, Music Copyright for the New Millennium, ProMusic Press, 2002 at 5.

(3) Id. at 6-7.