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Private Use on Musical Works, Rights of Public
Performance, and Collecting Society Systems.
By' Judge Visit Sripibool
unreasonably prejudice the legitimate interest of the right holder. These three conditions apply on a cumulative basis, each being a separate and independent requirement that must be satisfied. These three conditions sometimes called "the three step test".
The Panel already rejected the first criteria: the business exemption in Section 110(5)(B) would not only cover "certain special cases," given the large number of establishments that potentially may benefit from it, based on the estimations made. The Panel also referred to the preparatory works for the 1948 Brussels Conference regarding Article 11bis(1)(iii), revealing that establishments intended to be covered by the exclusive right of the author also included factories, shops and offices. The Panel therefore emphasized that a law that exempts a major part of the users that were specifically intended to be covered by the provisions of Article 11bis(1)(iii) could not be considered a special case in the sense of Article 13 of TRIPS.
Although there was no need to examine the other two conditions of Article 13 of TRIPS, the Panel continued its analysis. It found that the second condition was also fulfilled: although even before 1998 a large number of establishments was not licensed by U.S. collecting societies, rightholders would expect to be in a position to authorize the use of broadcasts for many of the establishments covered by the exemption and therefore receive appropriate compensation. The exemption therefore conflicts with a "normal exploitation" of the work as it eliminates the author's reasonable expectations to be compensated.
Regarding the third condition and regarding the calculations and estimations of losses to be suffered by authors, the Panel also failed to agree with the U.S. position that the economic impact of the exemption would be minor. The Panel supported the position of the Commission that potential loss of revenue also has to be taken into account. Regarding the estimations, the Panel recalled that the burden of proof that the conditions of Article 13 of TRIPS are met would be on the U.S.
The dispute in the case of U.S. and E.U. above, it seems that the amendment of the Copyright Act in the United States puts back copyright protection in the USA at least in part to a time when music was generally regarded as public property, to the benefit of commercial operations. In the United States, the meaning and purpose of the Fairness in Music Licensing Act are obvious: the financial burden on smaller businesses it to be reduced at the expense of copyright holders. What about the small business in developing countries in light of the shops of restaurants which cannot be obviously separated from homestyles or private uses.? Even, in compared with, if the substantive changes to the Aiken exemption are only minimal, their financial effects on the total income of the collecting societies are considerable. A conflict of interests between the small businessman and the individual composer or text writer, who often relies entirely on the distributions from performing rights societies, has been decided to the detriment of the latter, although the license fees weigh lightly on businesses and, like other business expenditure, can be passed on to the final customer. At the same time, the license fees without exception, in some situation, may detriment to small business, and some may evade to the private human rights.
In the Copyright law of U.S., it seems that, sometimes, the exclusive right of the copyright owners is not philosophically original rights of the owners, the exclusive right of the owner is not real right. Actually, the exclusive right is up to laws specified. It means 'no laws no rights.' Moreover, the exclusive right in the Copyright Act of U.S., obviously, is up to the political power struggled in Congress.(151) In the United States, many business operators appear to regard music transmitted by radio as public property, as was for instance expressed in the satisfied reaction to the amendment by a restaurant owner in Virginia: "it's a matter of fairness. We can't control the music that comes over the radio or television any more than we can control the weather."(152) As the continuing license obligation for the use of video and sound recordings shows so that the concept that the individual business on longer had to acquire a license could easily be overcome. However, in the United States, the user agreements with the radio and television companies with restaurants are completely different in content because radio stations in the USA are mostly exempted by collecting societies from payment for the reproduction by commercial businesses.(153)
The commission's decision to file proceedings against the legislative amendment in conflict with the Berne Convention at the request of European collecting societies could therefore only be welcomed, and the Panel's decision in favor of the authors proves that this step was justified.
The WTO Panel decision is considered an important victory for U.S. songwriters as well as for European composers and collecting societies. The Dispute Panel has recommended the U.S. to bring its law into conformity with its obligations under international law. So far, there has been no reaction from U.S. legislators as to whether the attacked legislation shall be amended, and the process to see the law modified by Congress may be slow.
The WTO Panel Decision mentioned above can be concluded as follows;
1 the WTO Panel did not take into account both the meaning of "public" and the interests of the social welfare. But they only focused on "the three step test".
2 in the concept of the conflict with normal exploitation of the work, the WTO Panel also did not concentrate on the practical importance or economically compete with the right owner.
3 the further interesting issue that was agued by the United States is that the exemption did not 'conflict with a normal exploitation of the work' because if the songwriters have already received royalties from producers,(154) can they get more? In this matter, the WTO 's Panel did not consider. In the WTO Panel's decision, the scope of exclusive rights, the Panel said impliedly that the right owners can extend their exclusive rights to be broadly without limitation of remuneration.
Briefly, on the contrary, in Aiken, the court, within the Copyright Act of 1976 so far, said as follows;
1 only a commercial performance or communication of a copyrighted work for profit constitutes a relevant exploitation subject to the copyright holder's exclusive right. If there is no direct commercial interest, the exclusive right is not protected.
2 the small fast-food restaurants, shops, or cafes where there are no direct charges to their customers are not infringed. Only operating a radio or a television within their business premises they would not be deemed to communicate the works of music transmitted to the public. Such use is a homestyle.
3 the court interprets the meaning of the "public" by mean of focusing on the economic competition. In the other word, the court tries to balance the economic powers between the small businesses and the big businesses in the same field of business.
What is public performance?
The meaning of public performance is always not clear. Somewhere, the definition of 'performance' is something of a hybrid.(155) It is with the meaning of others which are not also clear. When looking into the meaning of the 'public' through the meaning in the dictionary(156) , 'public performance' would mean any act concerning the people as a whole or any act shared by any people or act done or existing openly. However, in views of the courts in the United Kingdom, the courts indicate that the decisive factor is the nature of the audience, rather than its size or whether it paid for the pleasure of the nature of the venue. A public performance or exhibition is one for which the audience is note a "domestic or quasi-domestic one". It seems that a "domestic or quasi-domestic" audience is one that lives under one roof. Thus a performance of a play by members of the Women's Institute of one village to an audience of members of the Institute of anther village was held to have been "in public" even though non-members had not been admitted and no charge had been made.(157)
The meaning of "public performance" in some case is not necessary to concentrate on an amount of people. Sometimes, only one person who play musical work may be deemed as a "public performance" if anyone can access to play that work anytime and anywhere. For example, in APRA(158) The summary of facts of the case, the defendant(Telstra) is a mobile phone company which serves its customers a music on hold. The music will be played by the customers whenever they want, anywhere they need. The music on hold can be played or used only one person who holds the cell phone. In the First Instance, the court stated that in providing a music on hold service to customers, Telstra did not infringe the diffusion right as the music on hold never proceeded to the subscribers' premises, but only to persons who had called the customer subscriber. Nor did providing music on hold to mobile phones infringe the right to broadcast to the public. It was not a broadcast to the public because of its essentially private nature. The acts of Telstra is just to facilitate the private communications between two people and a communication from one party to another in this context could not be regarded as a broadcast by Telstra to the public. But the Australia Full Federal Court said that the act of Telstra has been infringed
(151) See Goldmann, supra note 6, at 416-417.
(152) Id. at 428.
(154) See McCluggage, supra note 119, at 1-47.
(155) See Arnold, supra note 124, at 42.
(156) See Id, supra note 121.
(157) See Arnold, supra note 124, at 104.
(158) Australasian Performing Right Association Ltd v. Telstra Corp Ltd, Australia Federal Court,  31 I.P.R. 289.