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Private Use on Musical Works, Rights of Public
Performance, and Collecting Society Systems.
By' Judge Visit Sripibool
Collecting Society Systems
The collective administration of copyrights has become an important item. The phenomenon is advancing but not new. The French music copyright agency (SACEM) dates from the middle of the last century and the Dutch national agency (Buma) was founded some 85 years ago. Collective administration arose because of the factual impossibility of the individual copyright holder to control the mass use of music himself. And as technological developments progress, the need for authors to combine forces is growing in more areas. Combined force, however, means combined power.(178) At present, copyright collecting societies occupy a dominant market position in at least two respects(179) :
(1) towards the users of protected works who may have just one legitimate supplier of licenses, and
(2) towards the users of protected works who may have no alternative provider of a rights administration infrastructure.
(3) towards the copyright owners for protection of the works which cannot be managed in the best way of exploitation.
On musical works, the fundamental philosophy behind collective administrative of rights in music via collecting societies consists in making it accessible to those who want to use and enjoy it in accordance with law in an orderly manner. For collecting societies this means: to become entitled to represent a world repertoire of music-with or without texts-, to license it without discrimination to qualified users, to control that it is lawfully used , to collect money for its use and to distribute the money-reasonable and necessary costs deducted-to the right owners in accordance with principles agreed upon inbetween themselves. Thereby, insofar as uses of individual works can be ascertained, these uses shall form the basis for computing which amounts shall become distributed to the individual right owners of the perspective works(180) because it has to be acknowledged that in cases of mass use if protected works, individual management of the right owner has individually become illusory.(181)
An increasingly stronger individual rights and a powerful monopolistic collecting society leads to a further issue: the perceived need for regulation, supervision, and control of the activities of rights management organization. Many problems may occur from those collecting societies need for governmental intervention. The first justification for governmental intervention is the addressing of any anti-competitive effect which results from the activities of collecting societies. A Second rationale for government regulation is the need for independent supervision to ensure equitable licensing practices of collective management organizations, with special emphasis on the tariff rate. A third rationale for such regulation focuses on the author-society relationship, and this is possibly a more controversial justification for governmental regulation.(182)
Pros for Collecting Society
Normally, many people need a collecting society, while, others do not. However, the collecting society, like all of things, has both good and not so good aspects.
In the useful aspect, there might be as follow;
1 the collecting society has its power of exercises for protection on their repertoire for their members.(183) As so called "the world repertoire"(184)
2 the collecting society is not only royalty processing centers but also has a statutory duty to foster and protect creators.(185)
3 the collecting society can manage the rights conferred by the author and other rightowners who could never individually control the mass use of their works.(186)
4 Users, collectors of those works can easily access to a one-stop-shop to clear all rights in different kinds of works simultaneously.
Cons for Collecting Society
There are many aspects of uses of powers exercised by the collecting society which may cause damages to societies, as follows;
1 the powers of the society could be misused, particularly if the combination of forces is based on legally created monopoly position.(187)
2 the nature of copyright is prohibitive, linking the use of protected works to the consent of the copyright holder. But in the hands of a collective right agency the exclusive rights are reduced purely to right to a fee. The author loses control.(188) This all means that the exclusive right to authorize has been degraded to a mere right to remuneration.(189)
3 the complexity of governance structures may reflect uncertainty about the property rules underlying collective administration.(190)
4 Composers can no longer enter the market as individuals.(191)
Historical Background and Functions in Europe(192)
Owners of copyright realized at an early stage that it was not always possible to exercise their rights on an individual basis, particularly in the case of works, which were intended for widescale public performance, such as plays and musical works. Moreover if there is a good system of licensing, the owners of intellectual property rights ought to be able to extract full value of their rights.(193) And it may be inconvenient for the owner of copyright to agree licenses and collect fees, or alternately the copyright owner may want the backing of a powerful body to help defend his right in a court of law, if it comes to that. On the other hand it much more convenient if a user of copyright material can negotiate a single licence with respect to a range of works rather than having to agree separately with all the individual owners.(194)
Even in the digital age, at this moment, the Internet may prove to become the most important development for authors in general and, not least, for composers and songwriters. Formerly, a composer or songwriter was dependent on a record company that would produce and distribute phonograms with his or her music, and, if no record company did so, virtually nobody would have the possibility of becoming acquainted with that particular music. Many such traditional barriers to music distribution disappear, or change their character, on the Internet. One will be able to contact directly millions and millions of people around the world. All Internet users can easily access any web site containing your musical works, in whole or in part. Professional marketing of the music will probably in most cases still require the assistance of new web advertising agencies, or traditional record companies or music publishers, the availability as such is important for may authors. So, the Internet offers many opportunities for authors. However, authors would get much more benefits if they continue to administer the rights through collecting societies because(195):
First, the digital world - even more than the analogue world - will be inhabited by giant media corporations that want to own as many copyrights as possible. The background is obvious: money. Within a few years, the on-line music market will be worth billions and billions of dollars. Those who control the copyrights can make significant profits. The media corporations will without doubt be able to put tremendous pressure on an individual author in order to make buy-out agreements. Without the support of a collective, such authors will probably lose all their rights. Only collecting societies- and especially collecting societies with exclusive membership agreements-can secure a continuous flow of remuneration following a continuous use of the works of the author.
Second, the administration of individual rights is not so easy in the music area. Unlike the situation in literature, there are normally many rightholders connected to one recording of a musical work. Besides the composer, songwriter, lyricist and, perhaps, adapter, musicians are granted some related rights in many countries, and maybe a studio or record company would also be entitled to some recording rights. It is complicated to administer so many rights.
Third, administration of individual rights will not bring about any money for the public performance of the music at concerts, on radio and television, in restaurants,
(178) Niek van Lingen, Collective Copyright Administration Competition and Supervision, Intellectual Property and Information Law, edited by Jan J.C. Kabel, Kluwer Academic Publishers, 1998 at 142, at 212.
(179) See Kretschmer, supra note 4, at 1(Westlaw)
(180) Gunnar W. G. Karnell, Collecting Societies in Music, Editors: David Peeperkorn, Cee Van Rij, Collecting Societies in the Music Business, MAKLU Publishers, 1989 at 17.
(181) Uma Suthersanen, Collectivism of Copyright: The Future of Rights Management in the European Union, The Yearbook of Copyright and Media Law, Oxford University Press, 2000 at 16-17.
(182) Id. at 22.
(183) See Lingen, supra note 178, at 212.
(184) See Kretschmer, supra note 4, at 1.
(185) See Id at 9.
(186) Herman Cohen Jehoram, The Future of Copyright Collection Societies, European Intellectual Property Review, Sweet & Maxwell, 2001 at 2 (Westlaw).
(187) See Id, supra note 178.
(188) See Lingen, supra note 178, at 211.
(189) See Jehoram, supra note 186, at 3.
(190) See Kretschmer, supra note 4, at 1.
(191) Id. at 9.
(192) J.A.L. Sterling, World Copyright Law, Sweet & Maxwell, London 1998 at 403-407.
(193) David J. Teece, Managing Intellectual Capital, Oxford University Press, New York 2000 at 25.
(194) David I Bainbridge, Intellectual Property, Third edition, Pitman Publishing, 1996 at 82.
(195) See Schonning, supra note 133, at 968-969.