Private Use
on Musical Works, Rights of Public
Performance,
and Collecting Society Systems.
By'
Judge Visit Sripibool
for
socio-cultural fund, and set up pension for composers.(266) Furthermore,
In other European countries such as Austrian, France and others, the royalties
collected by the societies probably will be deducted for social and cultural
purposes from remunerations around not exceed 10%.(267) But In the United
Kingdom shows significant parallels but most of all are in the contractual
practices. And some society such as PRS did not make any official socio-cultural
deductions.(268)
2 For a pension fund, in Germany there is a pension for 60+-year-old authors/members
who have paid premiums for at least 25 years. The publishing firm/members
receive their "pensions" already five years after starting their
payments and until the end of their membership. The payments have been
made by all the members and the level of their "pensions" relates
directly to their paid premiums.(269)
3 A distribution of royalties, the money should be distributed to the
individuals who appeared in those performances. In general, the income
should be distributed among individual right owners whose works have been
used.(270)
The Role of Collecting
Societies in the Digital Environment(271)
It
will be apparent from the discussion so far that clearing digital rights
for copyright purposes is potentially an enormous task. Consider a digital
radio station. Does the copyright and performer's right position for each
piece of music broadcast need to be cleared for each piece of music played?
Surely not -securing individual rights for each three minute track would
be a bureaucratic nightmare for user and owner alike.
In
fact since 1851 when SACEM in France was founded, 'collecting societies'
have been established around the word to act as clearing houses for a
range of copyright and related rights. Members of these societies (who
own the rights to be licensed) typically either transfer the rights to
be licensed to the society or empower the society to act as their agent
in granting licenses of their works. The society remits royalties (typically
on agreed scales) to members and administers licenses of members' rights.
The various collecting societies that operate in the UK have grown out
of the analogue world. Nevertheless they are likely to become increasingly
important in helping to manage the copyright licensing of works in the
digital environment. Indeed a number already grant licenses that relate
to 'electronic rights'.
There are many collecting societies operating in the UK. The functions
of some of the more important ones are set out below. Collecting societies
are particularly important to the music industry. Also discussed below
is a digital rights case study involving collecting societies.
Of
course collecting societies are generally voluntary in nature so not all
authors or publishers may choose to use them either in whole or in part.
Also the societies may not have yet devised licensing models for digital
works of it they have these may still be limited in scope. So collecting
societies are not a panacea for either authors or users. Nevertheless
they should always be considered in developing any strategy to protect,
use or exploit digital works. In addition a number now operate internationally
by working with foreign equivalent organizations on a reciprocal basis.
For example the International Federation of the Phonographic Industry
(IFPI) has developed a reciprocal agreement to allow webcasting across
national borders. There are also moves for collecting societies to co-operate
to provide a 'one-stop shop' for clearing multimedia rights. Digital technology
may itself assist collecting societies in these activities.
It
is now common for users to personalize their mobile phones by including
musical ring tones. If the tunes relate to musical works which are in
copyright then a license will be required from the owner of the copyright
then a license will be required from the owner of the copyright in the
musical work to(272):
1 In effect record (copy) the musical work into a (digital) file of electronic
instructions to be used to generate the musical tone;
2 Upload (ie copy) the file to a server;
3 Deliver the file to the user (this may involve transitory Internet copies
being made if delivered via the Internet;
4 Download the file to the mobile phone (copy).
The MCPS will grant licenses dealing with these activities in the context
of mobile phone ring tones. A license should not ordinarily be required
for playing the ring tone as this would generally not be a 'public performance'
of the recording or work. In addition if the file is made available for
access, downloading and/or sampling (to decide whether to buy it) via
the Internet then this is arguably inclusion of the work in a cable programme
broadcast and so a license from the PRS may also be required. Licenses
may also be required from the programmers/company responsible for creating
the digital file.
The Major Collecting
Societies in the UK.(273)
The
Copyright Licensing Agency Limited (CLA). The CLA was formed in 1982 and
deals with licensing content for reproduction by reprographic means. Its
members are the Authors' Licensing and Collecting Society (ALCS) and the
Publishers, respectively. The content is from books, journals and periodicals.
Until recently only literary works were covered but artistic works are
now included through arrangements with DACS(see later). Traditionally
the CLA has only permitted the photocopying of works under the license
(ie paper to paper copying) as opposed to digital scanning, but this likely
to change. But works as electronic form (eg CD-ROM or online) do not fall
within the CLA's licensing scheme at present, nor are they likely to.
The Newspaper Licensing Agency Limited (NLA). NLA was formed in 1996 in
order to license the making of newspaper articles. The newspaper publisher
typically assigns to the NLA the copyright in the typographical arrangement
of the published edition together with (where possible) the underlying
copyright in the literary and artistic works themselves. Design and Artists
Copyright Society Limited (DACS). DACS was founded in 1983 and deals with
works of visual art including photographs. DACS are addressing the challenges
of digitization and have developed a number of innovative digital licensing
models, and they will also deal with website image re-use issues, etc.
The Mechanical Copyright Protection Society Limited (MCPS). MCPS is the
society that protects the 'mechanical' copyright in musical works. This
includes the right to make sound-bearing copies of musical works, to issue
copies to the public, to import them and to authorize these activities.
MCPS is now in alliance with the PRS (see later). The MCPS offers a number
of licenses and services of relevance to digital works including computer
games, online music, mobile phone ring tomes, CDs, and DVDs. The MCPS-PRS
alliance is also co-ordinating an EU-funded project called 'Rights Watch'
to develop codes of conduct and procedures to remove copyright infringing
material from the Internet. Performing Right Society Limited (PRS). The
PRS administers the 'performing right' in musical works ie:
1 Right to perform the work in public;
2 To broadcast the work or to include it in a cable programme service;
3 Right to authorize others to do this;
4 Film synchronization rights (ie right to record the work on a film soundtrack)
are also administered by the PRS.
The PRS therefore licenses a wide range of persons including(274):
1 BBC, ITV and other broadcasters;
2 Cinemas;
3 Shops, offices, clubs, pubs, cafes, etc (eg for music on hold, background
music, etc).
Furthermore, the PRS classes the presentation of music on a website as
'cable performance' and therefore licenses this, whether the music is
'performed' via clips, streaming or otherwise. In addition where the music
is to be downloaded the MCPS will also need to be contacted in connection
with a mechanical rights license: this highlights that there is as yet
on one -stop shop licensing body for musical works.
The members of PRS comprise of composers, songwriters and musical publishers.
It administers the "performing right" in their music. PRS policy
and administration are controlled by an elected General Council of non-executive
Directors who include a Chairman and two Deputy Chairmen. Half the Council
members are writers and half are publishers, each category broadly divided
between pop and non-pop interests including classical. All Council Directors
are elected by the membership for the day-to-day running of the Society,
is appointed by the Council. Normally, the license fees are negotiated
with associations representing the various users. The users also have
the right to refer the PRS charges to the Copyright Tribunal, a legal
panel set up to resolve disputes between copyright owners and their customers.
PRS claims that it makes no profits for itself,(275) all money collected
is paid out as royalties after deduction only its operating costs.
Page
20
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(266)
See Id, at 4, 9.
(267) Ferdinand Melichar, Deductions Made by Collecting Societies for
Social and Cultural Purposes in the Light of International Copyright Law,
IIC International Review of Industrial Property and Copyright Law, Volume
22, the Max Planck Institute for Foreign and International Patent, Copyright
and Competition Law, Munich, 1991 at 47-60.
(268) See Kretschmer, supra note 4, at 4-5.
(269) See Jehoram, supra note 186, at 5.
(270) Id. at 6.
(271) Simon Stokes, Digital Copyright Law and Practice, Butterworths,
2002 at 169-170.
(272) Id. at 173-174.
(273) Id. at 170-173.
(274) See The Performing Right Yearbook, supra note 246, Id.
(275) The leaflet released by The Performing Right Society (PRS) March
1993 at 8.
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