Private
Use on Musical Works, Rights of Public
Performance,
and Collecting Society Systems.
By'
Judge Visit Sripibool
unreasonably
prejudice the legitimate interest of the right holder. These three conditions
apply on a cumulative basis, each being a separate and independent requirement
that must be satisfied. These three conditions sometimes called "the
three step test".
The Panel already rejected the first criteria: the business exemption
in Section 110(5)(B) would not only cover "certain special cases,"
given the large number of establishments that potentially may benefit
from it, based on the estimations made. The Panel also referred to the
preparatory works for the 1948 Brussels Conference regarding Article 11bis(1)(iii),
revealing that establishments intended to be covered by the exclusive
right of the author also included factories, shops and offices. The Panel
therefore emphasized that a law that exempts a major part of the users
that were specifically intended to be covered by the provisions of Article
11bis(1)(iii) could not be considered a special case in the sense of Article
13 of TRIPS.
Although there was no need to examine the other two conditions of Article
13 of TRIPS, the Panel continued its analysis. It found that the second
condition was also fulfilled: although even before 1998 a large number
of establishments was not licensed by U.S. collecting societies, rightholders
would expect to be in a position to authorize the use of broadcasts for
many of the establishments covered by the exemption and therefore receive
appropriate compensation. The exemption therefore conflicts with a "normal
exploitation" of the work as it eliminates the author's reasonable
expectations to be compensated.
Regarding the third condition and regarding the calculations and estimations
of losses to be suffered by authors, the Panel also failed to agree with
the U.S. position that the economic impact of the exemption would be minor.
The Panel supported the position of the Commission that potential loss
of revenue also has to be taken into account. Regarding the estimations,
the Panel recalled that the burden of proof that the conditions of Article
13 of TRIPS are met would be on the U.S.
The
dispute in the case of U.S. and E.U. above, it seems that the amendment
of the Copyright Act in the United States puts back copyright protection
in the USA at least in part to a time when music was generally regarded
as public property, to the benefit of commercial operations. In the United
States, the meaning and purpose of the Fairness in Music Licensing Act
are obvious: the financial burden on smaller businesses it to be reduced
at the expense of copyright holders. What about the small business in
developing countries in light of the shops of restaurants which cannot
be obviously separated from homestyles or private uses.? Even, in compared
with, if the substantive changes to the Aiken exemption are only minimal,
their financial effects on the total income of the collecting societies
are considerable. A conflict of interests between the small businessman
and the individual composer or text writer, who often relies entirely
on the distributions from performing rights societies, has been decided
to the detriment of the latter, although the license fees weigh lightly
on businesses and, like other business expenditure, can be passed on to
the final customer. At the same time, the license fees without exception,
in some situation, may detriment to small business, and some may evade
to the private human rights.
In the Copyright law of U.S., it seems that, sometimes, the exclusive
right of the copyright owners is not philosophically original rights of
the owners, the exclusive right of the owner is not real right. Actually,
the exclusive right is up to laws specified. It means 'no laws no rights.'
Moreover, the exclusive right in the Copyright Act of U.S., obviously,
is up to the political power struggled in Congress.(151) In the United
States, many business operators appear to regard music transmitted by
radio as public property, as was for instance expressed in the satisfied
reaction to the amendment by a restaurant owner in Virginia: "it's
a matter of fairness. We can't control the music that comes over the radio
or television any more than we can control the weather."(152) As
the continuing license obligation for the use of video and sound recordings
shows so that the concept that the individual business on longer had to
acquire a license could easily be overcome. However, in the United States,
the user agreements with the radio and television companies with restaurants
are completely different in content because radio stations in the USA
are mostly exempted by collecting societies from payment for the reproduction
by commercial businesses.(153)
The commission's decision to file proceedings against the legislative
amendment in conflict with the Berne Convention at the request of European
collecting societies could therefore only be welcomed, and the Panel's
decision in favor of the authors proves that this step was justified.
The WTO Panel decision is considered an important victory for U.S. songwriters
as well as for European composers and collecting societies. The Dispute
Panel has recommended the U.S. to bring its law into conformity with its
obligations under international law. So far, there has been no reaction
from U.S. legislators as to whether the attacked legislation shall be
amended, and the process to see the law modified by Congress may be slow.
The
WTO Panel Decision mentioned above can be concluded as follows;
1 the WTO Panel did not take into account both the meaning of "public"
and the interests of the social welfare. But they only focused on "the
three step test".
2 in the concept of the conflict with normal exploitation of the work,
the WTO Panel also did not concentrate on the practical importance or
economically compete with the right owner.
3 the further interesting issue that was agued by the United States is
that the exemption did not 'conflict with a normal exploitation of the
work' because if the songwriters have already received royalties from
producers,(154) can they get more? In this matter, the WTO 's Panel did
not consider. In the WTO Panel's decision, the scope of exclusive rights,
the Panel said impliedly that the right owners can extend their exclusive
rights to be broadly without limitation of remuneration.
Briefly,
on the contrary, in Aiken, the court, within the Copyright Act of 1976
so far, said as follows;
1 only a commercial performance or communication of a copyrighted work
for profit constitutes a relevant exploitation subject to the copyright
holder's exclusive right. If there is no direct commercial interest, the
exclusive right is not protected.
2 the small fast-food restaurants, shops, or cafes where there are no
direct charges to their customers are not infringed. Only operating a
radio or a television within their business premises they would not be
deemed to communicate the works of music transmitted to the public. Such
use is a homestyle.
3 the court interprets the meaning of the "public" by mean of
focusing on the economic competition. In the other word, the court tries
to balance the economic powers between the small businesses and the big
businesses in the same field of business.
Public performance
What is public performance?
The
meaning of public performance is always not clear. Somewhere, the definition
of 'performance' is something of a hybrid.(155) It is with the meaning
of others which are not also clear. When looking into the meaning of the
'public' through the meaning in the dictionary(156) , 'public performance'
would mean any act concerning the people as a whole or any act shared
by any people or act done or existing openly. However, in views of the
courts in the United Kingdom, the courts indicate that the decisive factor
is the nature of the audience, rather than its size or whether it paid
for the pleasure of the nature of the venue. A public performance or exhibition
is one for which the audience is note a "domestic or quasi-domestic
one". It seems that a "domestic or quasi-domestic" audience
is one that lives under one roof. Thus a performance of a play by members
of the Women's Institute of one village to an audience of members of the
Institute of anther village was held to have been "in public"
even though non-members had not been admitted and no charge had been made.(157)
The
meaning of "public performance" in some case is not necessary
to concentrate on an amount of people. Sometimes, only one person who
play musical work may be deemed as a "public performance" if
anyone can access to play that work anytime and anywhere. For example,
in APRA(158) The summary of facts of the case, the defendant(Telstra)
is a mobile phone company which serves its customers a music on hold.
The music will be played by the customers whenever they want, anywhere
they need. The music on hold can be played or used only one person who
holds the cell phone. In the First Instance, the court stated that in
providing a music on hold service to customers, Telstra did not infringe
the diffusion right as the music on hold never proceeded to the subscribers'
premises, but only to persons who had called the customer subscriber.
Nor did providing music on hold to mobile phones infringe the right to
broadcast to the public. It was not a broadcast to the public because
of its essentially private nature. The acts of Telstra is just to facilitate
the private communications between two people and a communication from
one party to another in this context could not be regarded as a broadcast
by Telstra to the public. But the Australia Full Federal Court said that
the act of Telstra has been infringed
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(151)
See Goldmann, supra note 6, at 416-417.
(152) Id. at 428.
(153) Id.
(154) See McCluggage, supra note 119, at 1-47.
(155) See Arnold, supra note 124, at 42.
(156) See Id, supra note 121.
(157) See Arnold, supra note 124, at 104.
(158) Australasian Performing Right Association Ltd v. Telstra Corp Ltd,
Australia Federal Court, [1995] 31 I.P.R. 289.
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