Private
Use on Musical Works, Rights of Public
Performance,
and Collecting Society Systems.
By'
Judge Visit Sripibool
the
transmission right in the musical works, except where the music on hold
came from an authorized sound broadcast rather than a recording. Under
the Copyright Act the "broadcast to the public by transmitting is
not limited to wireless transmissions involving the kind of widespread
dissemination which is normally implicit in the concept of broadcasting.
Any wireless transmission will now fall within the broadcast right even
though it is make to only one person at a time rather than to the public
in a collective sense. However after the decision released, the Copyright
Convergence Group (CCG) in Australia recommended to the Copyright Law
Review Committee. The CCG considered that it would be desirable expressly
to exclude from the scope of the transmission right certain communications
which are of an essentially non-commercial, private or domestic nature
such as interactive services, telephone conversations, telebanking and
videoconferencing services. The CCG did not want to define the term of
'public' preferred the term that the court interpreted. The CCG was concerned
to ensure that copyright owners should be able to license point-to-point
transmissions of copyright material, such as on demand services, even
though they did not involve a transmission to the public as commonly understood.(159)
However,
it is not mean that any act as a public performance will be deemed as
an infringement. Even though it is the public performance but such circumstances
is exempted by law impliedly that is not infringement. For example, a
person who gives a public performance by means of any radio receiving
set or gramophone in any place need not pay anything for the right to
do so such public performance is a lawful act and no infringement of copyright.(160)
Public Performance
in the United Kingdom
In
the United Kingdom, personal use in public even without direct or indirect
charges is to be deemed as an incident of some commercial activity. It
would be infringed.(161) In Turner(162) the court said that music played
to employees during working hours was a performance in public as the worker
were effectively an audience. Performances of music over loudspeakers
at a factory as part of "music while you work" programmes for
employees, or over loudspeakers or through juke boxes to provide entertainment
for the clientele at a bar, caf?, discotheque or restaurant, or any section
of the public (other than a purely domestic circle) constitute performances
in public, as do performances at public concerts, dances or recitals.(163)
Where a performer performs the music as written by the composer following
a closely as possible the composer's directions, and not, in his interpretation,
substantially varying the work of the composer or adding to it new elements
of melody of harmony, it is probable that no new work or adaptation in
created by the performance: the performer has no rights in his performance.(164)
Public Performance
in the United States
In
the United States, the Copyright Act of 1976 confers the exclusive right
"to perform the copyrighted work publicly"(165) , it would be
noted that Section 106(4) the exclusive right applies only to "literary,
musical, dramatic, and choreographic works, pantomimes, and motion pictures
and other audiovisual works." This omits (1) pictorial, graphic,
or sculptural works, which by their nature cannot be performed, but as
to which the comparable right of public display applies, and (2) sound
recordings. Congress omitted performance rights from the latter for policy
reasons.(166)
Act of 1976 broadly defines "perform" and "public."
To "perform" a work "means to recite, render, play, dance,
or act it, either directly or by means of any device or process or, in
the case of a motion picture or other audiovisual work, to show its images
in any sequence or to make the sounds accompanying it audible." To
perform a work "publicly" means:
"(1) to perform or display it at a place open to the public or at
any place where a
substantial number of persons outside of a normal circle of a family and
its social
acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the
work
to a place specified by clause (1) or to the public, by means of any device
or
process, whether the members of the public capable of receiving the performance
or display receive it in the same place or in separate places and at the
same time
or at different times."(167)
Public Performance
in the Thailand
In
Thailand, the Copyright Act of B.E. 2537 Section 4 defines: "Communication
to Public" means making the work available to public by means of
performing, lecturing, preaching, music playing, causing the perception
by sound or image, constructing, distributing or by any other means.(168)
As
regarded the Act, the meaning of public performance in Thailand is broadly.
However,
on musical work, the Copyright Act of Thailand has the provision for the
public performance without infringement if that public performance is
within the provision provided. That is(169):
" Section 36. The public performance, as appropriate, of a dramatic
work or a musical work which is not organized or conducted for seeding
profit from such activity and without direct or indirect charge and the
performers not receiving remuneration for such performance is not deemed
an infringement of copyright; provided that it is conducted by an association,
foundation or another organization having objectives for public charity,
education, religion or social welfare and that Section 32 paragraph one
is complied with."
Scope of Public
Performance
The
meaning of public performance mentioned all countries above shown in the
same ways. That is, it covers many acts of performance on copyrighted
works. Briefly, it focuses on the nature of the audience.(170) That is,
if there are many audiences, it would be a public performance even there
is no any charge to the customers, however, not necessary to consider
on the amount of people,(171) even a few of audiences but performing in
unspecific area it would be deemed a public performance. Moreover, any
acts of performance to many people in a specific place is also to be deemed
a public performance.(172) For the meaning of performance, that covers
any act played by any person such as to recite, render, play, dance, sing,
cause sound or image, and others, these would be performances.(173)
The Consent of
Copyright owners
In
some situations, the consent of the copyright owner itself may be an issue,
for the consent need not be expressed but can be implied. For example,
the copyright owner may have acquiesced in the infringement and the court
might consider this to be a form of implied consent or, alternatively,
it could refuse to enforce the copyright on the basis of estoppel.(174)
Moreover, there is an idea for fair use in some aspects that it is the
formulation something of the "implied consent"(175)
For
the implied consent theory. There is a classic example case.(176) That
is, the case of implied consent theory can be found in American Institute
of Architects v. Fenichel. In Fenichel, plaintiff published a compilation
of standard forms to be used by owners, contractors, subcontractors, and
architects in the construction industry. Defendant made six copies of
the largest and most important form and delivered them to the owners and
contractors he was dealing with. The judgment was favor for defendant.(177)
Page
12
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(159)
Anne Fitzgerald, Playing Music on Hold, Computer and Telecommunications
Law Review, Sweet & Maxwell, 1996 at 4 (Westlaw).
(160) Vigneux v. Canadian Performing Right Society, Supreme Court of Canada,
18 January 1945.
(161) See Cornish, supra note 91, at 362.
(162) Turner v. PRS, [1943] Ch. 167, CA.
(163) J.A.L. Sterling and M.C.L. Carpenter, Copyright Law in the United
Kingdom and The Rights of Performances, Authors and Composers in Europe,
Legal Books PTY LTD Sydney-London 1986 at 114.
(164) Id. at 117.
(165) 17 U.S.C. Section 106(4).
(166) See Chisum, Jacobs, supra note 10, at 4 - 128.
(167) Id. 17 U.S.C Section 101.
(168) See The Copyright Act of Thailand of B.E. 2537 (1994), supra not
54 , at 5.
(169) Id. at 17.
(170) See Id, supra note 124.
(171) See Id, supra note 158.
(172) See Id, supra note 162.
(173) See Id, supra note 10.
(174) See Bainbridge, supra note 27, at 25.
(17) Leon E. Seltzer, Exemptions and Fair Use in Copyright the Exclusive
Rights Tensions in the 1976 Copyright Act, Harvard University Press, Cambridge,
Massachusetts and London, England 1979 at 31.
(176) American Institute of Architects v. Fenichel, 41 F. Supp. 146, 147
(S.D.N.Y. 1941)
(177) See Patry, supra note 45, at 61.
In Fenichel, the court held that "when the plaintiff put on the general
market a book of forms, he implied the right to their private use. The
conclusion follows from the nature of a book of forms. No one reads them
a literature; their sole value is in their usability. To constrict the
defendant to mere reading of the forms in the bound volume would unjustly
enrich the plaintiff whose very publication of a form implies its usability."
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