Private Use
on Musical Works, Rights of Public
Performance,
and Collecting Society Systems.
By'
Judge Visit Sripibool
shops,
etc. Only collecting societies are capable of collecting remuneration
for those kinds of use outside the Internet.
Of
course, there is a danger that the societies may abuse their positions.
It may cause damages to the owners of copyright. To prevent such abuse,
in the United Kingdom, the Performing Right Tribunal was set up by the
Copyright Act 1956 to regulate the licensing of performing rights, and
this has now become the Copyright Tribunal.(196) The Copyright Tribunal
has jurisdiction in relation to most schemes of rights. If there is a
dispute between societies and licensee, the Tribunal may confirm or vary
the claiming as the Tribunal thinks reasonable in the circumstances. There
are also provisions for reference to the Tribunal if a person has been
refused a license by the operator of the scheme, or the operator has failed
to procure a license for him, for example if the person is seeking a license
for a work that is in a category of case excluded from the scheme. The
Copyright Tribunal has to make its determinations on the basis of what
is reasonable in the circumstances, the Tribunal shall have regard to
the availability of granting of licenses to other persons in similar circumstances,
the Tribunal shall exercise its powers so that there is no unreasonable
discrimination between licensees.(197)
Societies
had already been formed in the eighteenth and early nineteenth centuries
to represent the general interests of authors in making negotiations and
in representations to governments and other bodies. It came to be recognized
that, in addition, societies were needed to administer rights and to collect
the payments due for use of protected material.
Four
developments in the history of societies administering rights (collecting
societies) may be noted. The first development was the formation in the
nineteenth and early twentieth centuries of national collecting societies.
These national societies came into existence in most countries with developed
industries for the exploitation of authors' works.
The second development was the making of reciprocal agreements between
the national societies, so that they could represent each other's repertoires.
This process was assisted by the formation in 1926 of the confederation
Internationale des Societies des Auteurs et Compositeurs (CISAC), with
headquarters in Paris, CISAC continues in existence and now represents
societies of authors, composers and publishers throughout the world. Besides
affording the means for contract between its constituent members, CISAC
has made important contributions to studies on copyright and author's
rights through its Legal Committee and its publications.
The third development was the formation of collecting societies to represent
rightowners other than authors. During the 1930s, sound recording producers
began to claim public performance and broadcasting rights in the recording
which they issued. As in the case of authors, it was found necessary to
established organizations that would administer the rights, once they
were recognized. Further impetus to this development was given by the
adoption of the Rome Convention in 1961. As countries joined the Convention,
societies were found in Scandinavia, Germany and other countries with
the specific object of administering, for the benefit of record producers
and performers, the remuneration arising from the broadcasting and public
performance of phonograms.
The fourth development was the formation of collecting societies to deal
with new uses of protected material. Thus in the 1970s, the new technological
means of photocopying were developed. Some countries have passed laws
granting authors and related rights owners a share in the money collected
by way of levies on recording machines and equipment: these schemes cover
not only photocopying but also, in a number of countries, sound and audiovisual
recording. As far as photocopying (reprography) was concerned, international
contact was achieved through the establishment of the International Federation
of Reprographic Reproduction Organisations (IFRRO). Organisations such
as the Societe de la Propriete Artisteque et des Dessins et Modeles (SPADEM),
were found in a number of countries, representing and administerings the
rights of graphic artists and photographers as regards, in particular,
commercial reproduction of their works in books, magazines, postcards,
etc. Collecting societies have been formed to administer the rental and
lending rights of authors and owners of related rights. Societies administering
particular areas of the reproduction rights in relation to particular
uses have also been formed.
The present situation is, then, that collecting societies administering
rights of authors and of owners of related rights have been established
throughout the world. There are many types of collective administration
in the world(198) . The development of new technological means of disseminating
works will probably lead to the increased activities of these societies,
and the formation of new entities to deal with new aspects of these developments.
Developing in
Thailand
In
Thailand, Thailand currently has two copyright collecting societies, The
Music Copyright (Thailand) Ltd. under royal patronage, and Phonoright
(Thailand) Co.Ltd. The Music Copyright is the agent responsible for collecting
royalties for public performance of musical works, while Phonoright is
the agent for collecting royalties from public performance of sound recordings.
However, these two groups face considerable obstacles in securing royalties
from users. Such difficulties may in part be attributable to a prevailing
unawareness by users of the general principles of copyright law. The presence
of two collecting societies exacerbates the confusion. Furthermore, as
many users do not understand the distinction between musical works and
sound recordings, they may always question the motives of two collecting
societies collecting fees.(199)
Models of Collecting
Societies.
A different model is arrived at of one emphasizes the importance of subjecting
rights management organizations to a global supervisory system, whereby
the organizations are subject to continuous surveillance by a designated
Ministry. This provides a safeguard against any abusive activity by the
collecting society, either in
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(196)
See Id, supra note 194.
(197) Id. at 83.
(198) Stephen M. Stewart, International Copyright and Neighbouring Rights,
Second edition, Butterworths, London, 1989 at 968-985. In European countries,
Austria has 6 societies, two societies for musical, and one of each of
dramatic and literary, published works, plastic and photographic, and
sound recording. Belgium has 3 societies, one of sound recording, one
of musical literary, dramatic, plastic, photographic, and audio-visual,
and one of photographic. Bulgaria has one society. Its function is on
musical, literary, and dramatic. Czechoslovakia has 4 societies. Two of
them are on musical area, and the others are literary and dramatic. Denmark
has 4 societies, one of published works, one of sound recordings, and
two of musical works. Finland has three societies, each of them is sound
recording, published works, and musical works respectively. France has
8 societies, each of them is published works, artistic, dramatic, musical
works respectively, and the others are one of musical, literary, dramatic,
one of literary, documentary, one of sound recording, and one of artistic
and photographic. Germany has 7 societies, two of them are musical, one
of literary, dramatic, plastic, one of dramatic, one of sound recording,
one of visual arts and published works, and one of dramatic, literary
and scientific. Greece has 3 societies, one of musical, literary and dramatic,
one of dramatic, and one of dramatic and literary. Hungary has 1 society.
It focuses on musical and literary. Iceland has 3 societies. Each of them
is sound recording, published works, and musical respectively. Ireland
has 3 societies. Two of them are musical, and another is sound recording.
Israel has 2 societies. One is musical, literary, and dramatic. Another
is sound recording. Italy has 2 societies. One is sound recording. Another
is musical, literary, dramatic, photographic and works of figurative art.
Netherlands has 8 societies. Each of them is artistic, dramatic and literary,
sound recordings, photographic, published works, and audio-visual respectively,
and two of them are musical. Norway has 3 societies. Each of them is sound
recording, published works, and musical respectively. Poland has 1 society.
Its focuses on the area of musical, literary and dramatic. Portugal has
one society. It focuses on all categories. Spain has 3 societies. One
focus on sound recording, one of published works, and another is on musical,
dramatic, literary, choreographic, and cinematographic. Sweden has 4 societies.
Each of them focuses on published works, sound recordings, plastic,(When
we see so-called 'plastic'. It means mostly focusing on graphic reproduction)
and musical respectively. Switzerland has 4 societies. One is on sound
recordings, one is on dramatic, literary, artistic, photographic, one
is on dramatic, dramatico-musical, choreographic, audio-visual, and another
is on musical. United Kingdom has 7 societies. ALCS is on dramatic, literary.
CLA is on literary. DACS is on artistic, plastic and photographic. MCPS
is on musical. PRS is on musical. PPL is on sound recordings. VPL in on
music and videograms. Russia has one society. It is on musical, dramatic,
literary photographic, and works of fine art. United States has 7 societies.
AMRA
is on musical. ASCAP is on musical. BMI is on Musical. Copyright Clearance
Center Inc is on published works. FOX is on musical. SESAC in on musical.
VEGA is on artistic and plastic. Canada has 6 societies. CAPAC focuses
on musical. PROCAN focuses on musical. SARDeC focuses on literary, dramatic,
audio-visual. SODRAC focuses on musical. Union de Ecrivains Quebecois
focuses on musical. VIS-ART focuses on artistic and plastic. Argentina
has 3 societies. AADI-CAPIF focuses on sound recordings. Sociedad General
de Autores de la Argentina focuses on musical, literary and dramatic.
SADAIC focuses on musical. Brazil has 7 societies. AMAR focuses on musical
and sound recording. SADEMBRA focuses on musical. SBACEM focuses on musical.
SBAT focuses on musical, literary, and dramatic. SOCINPRO focuses on sound
recording. SICAM focuses on musical. UBC focuses on musical. Chile has
2 societies. SATCH focuses on dramatic. SCD focuses on musical. Columbia
has 2 societies. ACINPRO focuses on sound recording. SAYCO focuses on
musical. Ecuador has 2 societies. APEIFE focuses on sound recording. SAYCE
focuses on musical. Mexico has 5 societies. ANDI focuses on sound recording.
SACM focuses on musical. SOGEM focuses on musical, literary and dramatic.
Directores focuses on film, audio-visual. SOMEN focuses on sound recording.
Paraguay has one society. It is on the musical, literary and dramatic.
Peru has one society. It focuses on musical. Uruguay has one society.
It is on musical. Literary, dramatic and sound recording. Venezuela has
one society. It is on musical. India has 2 societies. IPRS focuses on
musical. Phonographic Performance (Private) Ltd. focuses on sound recording.
Hong Kong has 2 societies. CASH focuses on musical. Phonographic Performance
(SE Asia) Ltd. focuses on sound recordings. Japan has 5 societies. Geidankyo
focuses on sound recording. Japan Copyright Clearance Centre focuses on
published works. Japan Phonograph Record Association focuses on sound
recordings. JASRAC focuses on musical. WGJ focuses on audio-visual. South
Korea has one society. It is on musical. Philippines and Singapore have
each of one society. Each of them focuses on musical. Australia &
New Zealand have 4 societies. Two of them focus on musical, and others
focus on published works and sound recordings.
(199)
Christopher E. Knight, Draft "Collection of Copyright Royalty and
Performer's Right Royalty Act in Thailand", Entertainment Law Review,
Volume 11 2000 , Sweet & Maxwell, 2000 at N-75. |