Private Use
on Musical Works, Rights of Public
Performance,
and Collecting Society Systems.
By'
Judge Visit Sripibool
The
net royalties are distributed to PRS members in accordance with the extent
to which their works have been broadcast or publicly performed. In some
case, it is not possible to find out every detail of performances. PRS
then uses "samples" to allocate royalties, and also draws on
record sales charts and other relevant information. Any composer, songwriter
and music publisher can be a member if they are qualified by PRS's regulations.(276)
Anyone wants to be a member have to pay an admission fee: 50 Pounds Sterling
(VAT included) for composers and authors, and 250 Pounds Sterling (plus
VAT) for publishers. Membership normally lasts for the member's lifetime.
However, a member has the right to resign at intervals of three years
from the original date of admission. Provisional writer membership may
also be terminated at the discretion of the General Council if no royalties
are credited to a member over at least a period of three years. On the
death of a member, an heir may be admitted as a successor member.
Phonographic Performance Ltd (PPL). Under the Copyright, Designs and Patents
Act 1988 (CDPA) there is a separate copyright for sound recordings as
opposed to musical works. PPL deals with the public performance right
for sound recordings. These sound recordings can be in any format (CD,
audio files, etc). PPL licenses TV and radio stations, discos and clubs,
juke box operators, background music operators and so on and this includes
Internet simulcasts etc. An Internet simulcast in defined by the PPL as
an Internet broadcast where a PPL-licensed broadcaster simultaneously
transmits its terrestrial programming unchanged via the Internet. The
PPL does not currently license Internet. The PPL does not currently license
Internet radio services other than Internet simulcasts. In accordance
with UK copyright law, PPL considers that 'public performance' means any
performance outside the strictly family or domestic circle. PPL also licenses
the reproduction of sound recordings-this is called 'dubbing; ie where
a sound recording is re-recorded. PPL currently grants licenses to dub
sound recording for the purposes of subsequent broadcasting or public
performance only. If dubbing is required for any other purpose e.g. digital
sampling then the record company or other owner will need to be dealt
with separately. Video Performance Ltd (VPL). VPL administers the public
performance, broadcast/cable programme rights and dubbing rights in music
videos.
Cases Concerning
the Collecting Societies
In
European countries, there are many cases concerning the collecting societies.
Some of them is the problem of discrimination between nationals of Member
States which the court (ECJ) said that such abuse could affect trade between
Member States,(277) some of them concern about the charging of two royalties
and the rate of royalties which the court held that charging of two royalties
might be possible with regard to the normal exploitation of copyright,
in part of the rate of royalties the court said that royalties claimed
were not unreasonable.(278) In a compulsory license case, the court said
that the compulsory license may be granted for insufficiency of exploitation
of the owner of rights.(279) In the European Community, the collecting
society in any member states cannot charge royalties to any licensees
from another state in different rate without compared on a consistent
basis and unable to justify such the difference.(280)
In
the United Kingdom, in case of infringement, and the plaintiff asking
of injunction, the question is that how long is the appropriate period,
and the injunction would be effect. The Court of Appeal said that the
appropriate form of injunction should be one with immediate effect and
of unlimited duration. The reason is that a plaintiff whose copyright
has been infringed in entitled as to an injunction as a matter of course.
In a infringement action the copyright owner has available all relief,
including injunctive relief, and there is nothing requiring an owner of
copyright of a type being considered in the case. An owner may exercise
and exploit his proprietary right by licensing some and not others. He
may charge whatever he wishes. Collecting societies have been recognized
to be in the public interest. A court, when granting an injunction, is
nevertheless required to exercise discretion and in so doing there might
be circumstances where restriction or refusal of an injunction would be
warranted. A person who exploits his proprietary right by licensing is
entitled, where there are special circumstances, to prevent another from
using that property right without his license and to refuse to grant a
license save on his herms and conditions as to payment and use.(281)
There
is an interesting case in Hong Kong concerning of the collecting of Royalties.
Both parties are limited companies incorporate in Hong Kong. The plaintiff
is wholly owned by an association called the International Federation
of Phonogram and Videogram Producers (IFPI) which has about 600 members
worldwide. The members produce sound recordings issued on more than 6000
"labels" worldwide. The purpose of the plaintiff, as the creature
of IFPI, is to collect royalties in respect of the public performance
in Hong Kong of the sound recording of members of IFPI.
The defendant carries on the business of a restaurant called the "California"
in Hong Kong. Recorded music is played from phonograms in the restaurant
during the serving of meals and at other times when there is dancing after
dinner on three nights a week.
The plaintiff issued a specially indorsed writ against the defendant in
a copyright infringement action. In the statement of claim the plaintiff
pleaded that it was the owner of the copyright, consisting of the exclusive
right of public performance in Hong Kong, in a number of sound recordings
including seven specified recording bearing the labels of specified recording
companies.
The statement of claim went on to allege, inter alia, that the defendant
had infringed the plaintiff's copyright in the seven recordings by causing
or authoring them to be heard in public in the defendant's restaurant
on 4 December 1987 without the plaintiff's consent. It was further pleaded
that the defendant was daily continuing to cause the public performance
of sound recordings notwithstanding its knowledge that it was infringing
the plaintiff's copyright.
On the basis of those allegations the plaintiff sought injunctive relief,
damaged or an inquiry as to damages or an account of profits arising out
of the defendant's infringement, discovery and cost
On 27 January 1988 the defendant filed that affidavit of Mr. R H Kaufman
who is the executive general manager of the defendant. He deposed at some
length regarding the negotiations and correspondence regarding license
fees between the parties which had preceded the action and which had culminated
in the demand by the plaintiff for qualified license fees from 1 January
1988, including a greatly enhanced fee of $34,046 for 1988.
Mr. Kaufman deposed that the defendant had never intended to misappropriate
the property of other without payment. His evidence was that before the
defendant was advised by its legal advisers regarding the issues concerning
the subsistence of the copyright and the plaintiff's ownership of that
right, the defendant had been involved in protracted negotiations with
the plaintiff about the reduction in the amount of the license fee until,
all of a sudden, the plaintiff had demanded an increase of more than 15
times. He deposed that the defendant's wish was that the legal issue regarding
the copyright should be resolved at an early date so that the defendant
could obtain a license from "the appropriate body" at a reasonable
fee, to be determined if necessary by the Performing Right Tribunal. As
to the legal issue which the defendant sought to be resolved, Mr Kaufman
deposed to his belief, based on legal advice, that the pleading in the
amended statement of claim had '
in no way demonstrated that the
plaintiff has a legal title to sue in its own name nor in any way could
it procure the just determination of the legal issues involve
".
He exhibited to his affidavit a copy of a draft defense which he deposed
that the defendant sought to rely upon. The draft defense denies the plaintiff's
claim to be the owner of the copyright, consisting of the exclusive rights
of public rights of public performance in Hong Kong, in the relevant seven
recordings, and puts the plaintiff to strict proof of that claim with
full discovery, and to strict proof of the plaintiff's legal title to
sue as provided for under the Copyright Act 1956.
The allegation of infringement was denied, in the draft defense, but on
such denial was made in Mr. Kaufman's affidavit
The judge gave his reasons for concluding that that Section 20(7) of the
Copyright Act 1956 did not avail the plaintiff in establishing ownership
of the copyright it claimed in the relevant recordings. Those reasons
are not challenged on appeal and they are clearly right because Section
20(7) only raises a presumption of ownership of copyright in a sound recording.
In the present case where the hearing proceeded on the basis that the
only effective issue concerned ownership of the copyright, Section 9 of
the orfinance positively required proof to the contrary before the presumption
of ownership arising in favour of the plaintiff could be rebutted, No
such proof was attempted by the defendant. The prima facie case made out
by the plaintiff, strengthened by Section 9, remained unaffected by the
defendant's mere denials. It followed, in my judgment, that as matters
stood at the hearing the plaintiff should not have been denied summary
judgment.(282)
The case, in some part of detail of the judgment, mentioned above give
us many questions of collecting society. First, How much is the fee of
royalties that would be appropriate? Second, What is a kind of rights
that is in the scheme of the collecting society?, and what is not? Third,
does which party have to prove the ownership of the copyright?
Cases
decided by the Tribunal
Case
concerning, for the public performance of copyright music in the collecting
society repertoire, both the method of computation and the amount of the
fees.(283) In 1959, the Tribunal said that if there is an agreement between
the collecting society and the licensee, even later the circumstances
changed, the collecting society cannot change rates of fees to collect
on the licensee. On the issues of computation of the fees, the Tribunal
said that it would therefore permit the proprietor of any individual dance
hall to elect voluntarily to pay at the rate of 1.5% on his actual gross
takings from admission charges.(284)
In
the matter of a discrimination, the Tribunal said that the collecting
society cannot differentiate on the rate of fees (discount fees) to licensees.
Such behaviors would be 'pregnant with the possibilities of unfair restrictions
and injustice.(285)
There
is an interesting case concerning on the royalty fees on music in discotheques.
The Tribunal decided on 1 August 1989.(286) The originator is the Performing
Right Society Ltd.('the PRS'). The interested party is the British Entertainment
and Dancing Association Ltd.('BEDA'). The PRS referred to the Tribunal
the licence scheme comprised in its Tarriff D which applied to commercial
dance halls and other premises where the main business carried on was
dancing and where dances took place on not less than one day each week
throughout the year or during a season of not less than 75 days in the
year. This tariff had first been considered by the Tribunal. In that reference
the Tribunal had made an order fixing the licence fee payable to PRS at
1.6% of the sum produced by the application of a formula which had been
in operation since 1949 (Basis A) but permitting the licensee to elect
to pay instead 1.5% of the actual annual gross takings from admission
charges (Basis B). In this reference the PRS contended that Basis A should
be deleted, that commercial discos (as defined) should be brought within
tariff D and that there should be substituted for Basis B a tariff calculated
as follows:
Commercial discos
Basis I:
6% of the annual gross total of admission receipts (broadly defined) together
with
3% of the annual gross takings from all activities conducted at the establishment
including sums paid for food and drink (excluding takings falling under
the 6%
Page
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(276)
Id. at 10-11.
(277) J.A.L. Sterling, World Copyright Law, Sweet & Maxwell, London
1998 at 632-633 both in GEMA v. E.C. Commission , Greenwich Film Productions,
Paris v. SACEM and GVL v. Commission.
(278) See Id. in Basset v. SACEM.
(279) Commission of the European Communities v. United Kingdom of Great
Britain and Northern Ireland. February 18, 1992-Case No. C-30/90 (Court
of Justice of the European Communities)
(280) Ministere Public v. Jean Louis Tournier, July 13, 1989- Case No.395/87
(Court of Justice of the European Communities).
(281) Phonographic Performance Ltd. v. Maitra, Court of Appeal, January
3, 1998 Unreported. Entertainment Law Review vol.9 1998. London Sweet
& Maxwell, 1998 at N-68.
(282) Phonographic Performance (South East Asia) Ltd. v. California Entertainments
Ltd., April 14, 1988. (Court of Appeal of Hong Kong)
(283) PRS v. Musical in Dance Halls, Michael Freegard, Jack Black, The
decisions of the UK Performing Right and Copyright Tribunal, Butterworths,
1997 at 53-56.
(284) Id.
(285) Id. at 63-64.
(286) Id at 151-159.
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