Private Use
on Musical Works, Rights of Public
Performance,
and Collecting Society Systems.
By'
Judge Visit Sripibool
In the United Kingdom, whether a circumstance is fair dealing or not may
consider in the relevant factors as follows; (25)
(a) The amount and importance of what has been taken.
(b) The nature of the accompanying material and the relation it bears
to what has
been taken.
(c) Whether it was necessary to use the performance or whether the use
was
gratuitous.
(d) Whether the performance or recording was published or not. If it was
not, it
will be more difficult to establish fair dealing.
(e) Whether what is sought to be justified as a fair dealing in fact competes
with
the performance.
(f) The motive for the dealing.
From
factors mentioned above, it can be said that the exception of copyright
Infringement in the United Kingdom must be looked in detail of circumstances.
Namely, if amount of copies is a few or short when compared with the whole
of an original work or a part of work copied is not the important part
of the original work, it would be fair. If the nature of work is normally
to be criticized or reviewed, it would be fair. If it is strongly necessary
to use the work, it would be fair. If the work was published before, it
would be fair. If the act of dealing does not compete with rights' owners,
it would be fair. If the motive for the dealing is not commercial advantage,
it would be fair dealing.
However, the circumstance of those factors is not straightforward to every
case. Sometimes, a use of even a very limited part of a work can constitute
breach of copyright. (26)
In the area of computer programme, fair dealing is obviously permitted.
This allow lawful users to make back-up copies of computer programs, to
decompile computer programs and to copy and adapt computer programs if
certain conditions are present. (27)
The Copyright, Designs and Patents Act 1988 provides for some specific
exceptions to copyright infringement collectively known as the "permitted
acts". These are acts which can be done without requiring the permission
of the copyright owner and without infringing the copyright in the work
in question. The permitted acts can be classified as follow: (28)
Fair dealing
Educational purposes
Library and archive use
Use associated with public administration
A great many other miscellaneous exceptions.
In
summary, in UK, fair use or the exceptions to copyright infringement,
the defendant has to answer the following questions in the way of as follows: (29)
1 Does copyright subsist in the work? NO
2 Is the act complained of a restricted act? NO
3 Does the act related to a substantial part of the work? NO
4 Did copyright owner authorise/consent to the act? (Express or Implied)
YES
5 Is infringement in the public interest? YES
6 Does act fall within the "permitted acts"? YES.
Fair Use in European
Countries
Most
of European Countries probably have the law systems relating to private
use and fair dealing in different ways; Belgium Copyright Law does not
permit the making of private copies for domestic use.(30) Denmark, the making of an individual copy of a 'disseminated work' for
private use is permitted under the Denish Copyright law of 1961 .(31) France, the making of copies and reproductions which are strictly reserved
for the private use of the copying party, and which are not intended for
collective utilization, is permitted . (32)Germany,
the making of single copies of a work for personal use is permitted whether
the copy is made by the would-be user or by a third party; if the work
is reproduced in a sound or visual record, however, the copying is only
permitted if the third party makes the copy gratuitously .(33) Please note that under German Law, both own use and small scale of copies
are permitted. Greece, Greece Copyright Law makes no provision for private
copying, it is difficult to see how the making of private copies could
be justified in term of protection of the public interest. (34)Ireland,
the Irish Copyright Act 1963, section 12 provides fair dealing with a
literary, dramatic or musical work for purposes of research or private
study, but taping of works incorporated into sound recordings or cinematograph
films is not permitted. (35)Italy, the Italian Copyright
Law No. 633 of 22 April 1941, as amended up to 1981, Article 68, the reproduction
of individual works for the personal use of 'reader' is permitted if the
copying is done by hand or by an uncommercial medium of reproduction.(36) Luxembourg, the law on the Protection of Performers, Producers of Phonograms
and Broadcasting Organisations of 23 September 1975, providing 'fair use'
by way of public policy, states that none of the related rights granted
under the law of 23 September 1975 may, however, be invoked against the
making of any copy for private use. This means that the home taping of
phonograms does not infringe the producer's right, even if it infringes
the copyright in an author's work. (37)Netherlands,
Dutch copyright law, the New Regulation of Copyright, of 23 September
1912, as amended up to 27 October 1972, by Article 16(b) it is not an
infringement of copyright to reproduce a work in limited number of copies
for the sole purposes of the personal practice, study or use of the person
who makes the copies or who order that they be made exclusively for himself.(38)
The United Kingdom, the Copyright, Designs and Patents Act 1988 Section
29(1), 30 (1)-(3), fair dealing with a literary work, dramatic, musical
or artistic work for the purposes of research of private study, or in
the way of incidental inclusion(39) of copyright material.(40)
Fair Use in the
United States
In
the United States, the idea of fair use, in the beginning, was recognized
by the courts(41) in the name of "Innocent Infringement". The
courts consider the elements as these: (42)
1 The nature of the plaintiff's authorship and intention.
2 The status and purpose of the user.
3 the extent of the use, both quantitatively and qualitatively.
4 The effect of the use on the copyright owner's interests. Competitive
or Non-competitive.
5 The absence of intent to plagiarize, especially as evidenced by proper
acknowledgement of the copyrighted source.
Fair use of a copyrighted work is not infringement. The root of what in
the United States is so called now as 'fair use' firmly planted in the
early English common law, where the defense was known as 'abridgment'.
From the earliest days of the doctrine, courts have recognized that when
a second author uses another's protected expression in a creative and
inventive way, the result may be the advancement of learning rather than
the exploitation of the first writer.
Fair use made its in debut in American Law in case of Folsom v.Marsh,9F.
Cas. 342(C.C.D. Mass 1841) (43)
At present, the 1976 Copyright Act of the United States Section 107 states
for fair use obviously. (44)
However, whether the idea of fair use mentioned above can be also used
to the music or not. In the United States, the Congress indicated that
"the same general standards of fair use are applicable to all kinds
of uses of copyrighted material" (45)
In particular, on music, there are the provisions of limitations on exclusive
rights in Section 110 (4) and Section 111(a) (1)
On music, if we strongly scrutinize to the Copyright Act of the United
States Section 110 (4) (46) and 111(a) (1) (47) that would be impliedly
held that if no direct charge were made to hear the works, Exclusive Rights
would be exempted.
An Analysis of
the Fair Use Factors (48) in the United States.
It would be useful if we can look into the idea of fair use of the United
States in details. That will be shown respectively.
The Purpose and
Character of the Use
First would be considered is that the use is normal and reasonable limits.
However, the limits are not confined to issues of the amount of copying
and the effect of such copying on the potential market for or value of
the copyrighted work. Second, it would be considered on the purpose and
character of the use. That is, whether such use is of a commercial nature
or is for nonprofit purposes. However, the line between commercial and
nonprofit organizations is increasingly difficult to draw. Many 'non-profit'
organizations are highly subsidized and capable of paying, and the widespread
public exploitation of copyrighted works by public and other non-commercial
organizations is likely it grow. In addition to these trends, it is worth
noting that performances and displays are continuing to supplant markets
for printed copies and that in the future a broad 'not for profit' exemption
could not only hurt authors but could dry up their incentive to write.
(49) In the specific type of uses cannot be strictly defined because each
case must be decided on its own facts.(50) In some case, the court focused
on the extraction of the most valuable portion of plaintiff's work and
defendant's lack of research and attribution.(51) Some case, the court
said that the fair use theory does not allow anyone to be entitled to
save time, trouble and expense by availing himself of another's copyrighted
work for the sake of making an unearned profit.(52) In computer program,
the court said that(53) the doctrine of fair use would apply to all stages
in the operations of information and storage retrieval systems, including
input, and output in the form of visual images or hard copies. Reproduction
of small excerpts or key words for purposes of input, and output of bibliographic
lists or short summaries, might be examples of fair use in this area.
On the other hand, because the potential capabilities of a computer system
are vastly different from those of a mimeograph of photocopying machine,
the factors to be considered in determining fair use would have to be
weighed differently in each situation. For educational use, like all others,
must be divided into commercial and nonprofit uses.(54) For off-air taping,
the court said that(55) home noncommercial "time-shifting" of
free broadcast television programs was fair use. But the court did not
decide whether the following types of off-air taping would be fair use:
home noncommercial taping of programs one was viewing; tape duplication;
use of tapes for public performance; librarying of tapes; trading of tapes
for noncommercial or commercial purposes; sale or rental of tapes; taping
outside of the home by individuals and businesses, schools, or other organizations;
taping of pay or cable programs or of nonbroadcast material such as videotex
or computer generated works. A number of these uses would likely not be
fair use for a variety of reasons, including the court held that
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(25)
Richard Arnold, Performers' Rights and Recording Rights, ESC Publishing
Limited, Oxford 1990 at 101
(26)Jonas Wickstraund v. Forening Svenska Tonsattares
Internationella Musikbyra, Swedish Supreme Court, 10 December 1986.
(27)David Bainbridge, Software Copyright Law, Second
edition, Butterworth & Co (Publishers) Ltd. 1994 at 26.
(28)Id. at 26.
(29)Id. at 27.
(30)Gillian Davies, Private Copying of Sound and Audio-Visual
Recordings, A study prepared for the Secretariat-General of the Commission
of the European Communities, Cultural Questions Division, ESC Publishing
Limited, 1984 at 78.
(31)Id. at 81.
(32)Id. at 82..
(33)Id. at 87.
(34)Id. at 90
(35)Id. at 93
(36)Id. at 96
(37)Id. at 99
(38)Id. at 100
(39)The incidental inclusion of a performance or recording in a sound
recording, film, broadcast or cable programme does not infringe performers'
rights or recording rights. It is expressly provided that music and any
accompanying words (whether spoken or sung) that are deliberately included
are not included. It is not clear whether this means that any other class
of performance must be included non-deliberately in order to be incidental.
The exception extends to subsequent dealings in anything the making of
which was not an infringement by virtue of paragraph 3(1) and in copies
of any such thing.-Richard Arnold, Performers' Rights and Recording Rights,
ESC Publishing Limited, Oxford 1990 at 102
(40)The Copyright, Designs and Patents Act 1988
Section 31 Incidental inclusion of copyright material
(1) Copyright in a work is not infringed by its incidental inclusion in
an artistic work, sound recording, film, broadcast or cable programme.
(2) Nor is the copyright infringed by the issue to the public of copies,
or the playing, showing broadcasting or inclusion in a cable programme
service, of anything whose making was, by virtue of subsection (1), not
an infringement of the copyright.
(3) A musical work, words spoken or sung with music, or so much of a sound
recording, broadcast or cable programme as includes a musical work or
words, shall not be regarded as incidental included in another work if
it is deliberately included.
(41)De Acosta v. Brown, (1944) 146 F.2d 408.
(42)Benjamin Kaplan, Ralph S. Brown, Jr., Cases on Copyright, Unfair Competition,
and Other Topics Bearing on the Protection of Literary, Musical, and Artistic
Works, Brooklyn, the Foundation Press, Inc. 1960 at 309
(43)See Chisum, Jacobs, supra note 10, at 175.
(44)Section 107. Limitations on the Exclusive Rights: Fair Use
Notwithstanding the provisions of sections 106 and 106A, the fair use
of a copyrighted work, including such use by reproduction in copies or
phonorecords or by any others means specified by that section, for purposes
such as criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research, is not an infringement
of copyright. In determining whether the use made of a work in any particular
case is a fair use the factors to be considered shall include-
(1) the purpose and character of the use, including whether such use is
of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of
fair use if such finding is made upon consideration of all the above factors.
(45)William F. Patry, The Fair Use Privilege in Copyright Law, The Bureau
of National Affairs, Inc. Washington, D.C. 1985 at Preface ix.
(46)Section 110. Limitations on Exclusive Rights: Exemption of Certain
Performances and Displays
Notwithstanding the provisions of section 106, the following are not infringements
of copyright:
(1)…
(4) performance of a nondramatic literary or musical work otherwise than
in a transmission to the public, without any purpose of direct or indirect
commercial advantage and without payment of any fee or other compensation
for the performance to any of its performers, promoters, or organizers,
if-
(A) there is no direct or indirect admission charge; or
(B) the proceeds, after deducting the reasonable costs of producing the
performance, are used
exclusively for exclusively for educational, religious, or charitable
purposes and not for private financial gain, except where the copyright
owner has served notice of objection to the performance under the following
conditions:
(i) the notice shall be in writing and signed by the copyright owner or
such owner's
duly authorized agent; and
(ii) the notice shall be served on the person responsible for the performance
at least seven days before the date of the performance, and shall state
the reasons for the objection; and
(iii) the notice shall comply, in form, content, and manner of service,
with requirements that the Register of Copyrights shall prescribe by regulation;
(47)Section 111. Limitations on Exclusive Rights: Secondary Transmissions
(a) Certain Secondary Transmissions Exempted.-
(1) the secondary transmission is not made by a cable system, and consists
entirely of
the relaying, by the management of a hotel, apartment house, or similar
establishment, of signals transmitted by a broadcast station licensed
by the Federal Communications Commission, within the local service area
of such station, to the private lodgings of guests or residents of such
establishment, and no direct charge is made to see or hear the secondary
transmission; or…
(48)See Patry, supra note 45, at 361.
(49)Id. at 369.
(50) Id. at 371.
(51) Id.
(52) Id. at 372.
(53) Id. at 388.
(54) Id. at 404.
(55) Id. at 412.
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