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Private Use on Musical Works, Rights of Public
Performance, and Collecting Society Systems.
By' Judge Visit Sripibool
competition policy may be identified to the scope of establishing a competitive order as and end in itself to safeguard economic freedom, Maintaining technological and economic progress, providing for a level playing field of fair competition, which implies prohibition of deceptive and fraudulent practices, threat, extortion and blackmail as well as unfair advantages through government subsidies, maintaining a decentralized structure of supply because small and medium-sized enterprises are considered as the backbone of a democratic society.(226) However, in the meaning of the exclusive right, the monopolies of collecting societies may not be exhausted because a first need of the societies is to have a monopoly in this field. This is in the interest of the rightowners and also of the users who want a one-stop-shop. In Europe the European Court of Justice, the highest guardian of European competitive law, has recognized the need for strong societies. While, the American courts, however, believe in different balance, and will not for instance allow monopolies of collecting societies, which are also restrained in many other ways. (227) So, sometimes, the collecting societies must be supervised by governmental organizations or by laws for the purpose of fair practice both their members and users.(228)
The Copyright Tribunal
Sometimes, collecting societies may abuse their powers. That may cause the members to be damaged. And sometimes, it may make discriminations to customers or licensees. So societies, in most countries, have to be controlled by a tribunal. However, the systems of Copyright Tribunal in each country are slightly different. Those different aspects can be shown below as follows;
The United Kingdom
In the United Kingdom,(229) the Copyright Tribunal was established under the Copyright Act 1956, the former name was Performing Right Tribunal, later it has renamed the Copyright Tribunal. The purpose of establishing the Performing Right Tribunal is to prevent or deal with any abuse of the monopoly rights conferred upon owners of copyright.(230) Even though the United Kingdom is one of members of the Berne Convention,(231) there are many provisions for the Performing Right Tribunal. The Copyright Tribunal is made up of a chairman and two deputy chairmen appointed by the Lord Chancellor after consulting the Lord Advocate, and between two and eight ordinary members appointed by the Secretary of State. Persons appointed as chairman or deputy chairmen must be barristers, advocates or solicitors of at least seven years' standing, or who have held judicial office. The copyright, Designs and Patents Act 1988 section 146 contain provisions for the resignation or removal of members of the Tribunal and provision is made for the payment of members in section147, as well as for the appointment of staff for the Tribunal.
The constitution of the Tribunal for the purpose of proceedings is to comprise a chairman, either the chairman or a deputy chairman, and two or more ordinary member. Voting on decisions is by majority, with the chairman having a further casting vote if the votes are otherwise equal. The jurisdiction of the Tribunal is set out in section 149 as being to hear and determine proceedings under:
1 the reference of a proposed or existing scheme, for example by an organization representing persons claiming they require licences which are covered by the scheme;
2 an application with respect to entitlement to a licence under a licensing scheme, for example where a person has been refused a licence by the operator of a licensing scheme;
3 the reference or application with respect to licensing by a licensing body, for example as regards the terms of a proposed licence or the expiry of an existing licence in the case of certain types of works and acts;
4 appeals against the coverage of a licensing scheme or licence as regards the power of the Secretary of State to extend the coverage of schemes and licences relating to the reprographic copying by educational establishments;
5 applications to settle royalty payments in respect of compulsory licenses granted by the Secretary of State in respect of sound recordings, films and computer programs under section 66;
6 applications to settle the terms of licences available as of right as a consequende of a report of the Monopolies and Mergers Commission;
7 applications under section 135D in respect of the statutory licence to broadcast sound recordings;
8 applications to give consent under Part II of the Act which concerns rights in performances;
9 determination of the royalty or other payment to be made to the trustees for the Hospital for Sick Children, Great Ormond Street, London.
The copyright, Designs and Patents Act 1988 has further provisions as regards the making of procedural rules for the Tribunal and fees to be charged, and under section 151, the Tribunal can make orders as to costs. Finally, under section 152, appeals may be made to the High Court, or to the Court of Session in Scotland, on any point of law arising from a decision of the Tribunal. It should be noted that the Tribunal is not a proactive body and can only respond to applications and references made to it.
Austria, under the Austrian Copyright Law there is established a special Arbitration Board whose powers include the resolution of disputes between copyright collecting societies and users' organizations. Its members include one nominated by the collecting method of resolving disputes about tariffs but in practice it has been very rarely used.(232)
Germany, in Germany the tariffs of copyright societies are subject to the jurisdiction of the ordinary civil court; a court action must be preceded by proceedings before the Arbitration Board of the German Patent Office which is the supervisory authority under the provisions of the Law on the Administration of Copyright and Neighbouring Rights of 1965. The Board comprises a Chairman and two Associates who must all be qualified to hold the office of judge. After attempts to reach an amicable settlement of a dispute have failed , the Arbitration Board's duties are limited to submitting a non-binding conciliatory proposal that can, but does not have to be, accepted by the parties. If, in the course of an already pending legal dispute, it should appear that a royalty rate is in dispute, the proceedings will be suspended until a decision has been reached by the Board. In addition to having jurisdiction over disputes about the tariffs of copyright societies, the Board can also be referred to in other types of dispute, for example, disputes over the grounds of a claim, the infringement of copyright, the obligation to pay royalties of the authority of a society to act on behalf of specific rightholders. The Law requires that the proposals of the Arbitration Board must be fair and reasonable and that it must apply objective criteria to determine whether a royalty is reasonable. These arrangements are generally considered to be satisfactory as they have given to copyright societies and users alike and instrument capable of striking a fair balance between the interests of creators and the users of their works.(233)
Switzerland, in the Swiss Federation, societies administering rights collectively require a licence to operate from the Federal Intellectual Property Office, which has general supervisory powers over them. Their tariffs have first to be negotiated with the appropriate users' association and then submitted to the approval of a Federal Arbitration Board. The members of this Commission are appointed by the Federal Council, and at each hearing there are five members, comprising the President, two independent assessors and two additional members, one nominated by the users' organizations and the other by the collecting societies. The Board is required to approve a tariff if it considers that its structure and provisions are 'appropriate'; if not, after hearing evidence from both sides, it has power to modify its terms. Unusually(and helpfully) the legislation lays down several detailed criteria for calculating the remuneration payable under a tariff. These are:
1 the users' receipts attributable to the utilization concerned or, if such receipts are not identifiable, the costs of such utilization.
2 the number and kind of protected works or other subject matter used; and
3 the proportion of the works etc used which are protected compared with those in the public domain.
The law also specifies that, for authors' rights, the maximum remuneration payable is 10 % of the user's receipts or cost and, for neighbouring rights 3%. The Board's decisions can be the subject of appeal to the Federal High Court.(234)
Australia, in Australia, the Copyright Tribunal, established under the Copyright Act 1968, is similar in the scope of its jurisdiction to the 1988 UK Tribunal, including determination of remuneration to be paid in respect of certain uses which are subject to compulsory licenses. The Australian provisions, which are generally considered to have worked well in practice, differ from those in the United Kingdom in another interesting respect, namely, that in Australia a licensing body may itself, as a kind of pre-emptive measure, refer its own license scheme for adjudication by the Tribunal in the hope that it will be confirmed as reasonable.(235)
New Zealand, Under its 1962 Copyright Act, New Zealand established a Tribunal which, both in its constitution and extent of jurisdiction, closely resembled the old UK performing Right Tribunal, the main differences being:
1 that, unlike that Tribunal, its jurisdiction included licences to make sound recordings or cinematograph films for the purpose of broadcasting them and (in the case of cinematograph films) to broadcast them; and
2 that its jurisdiction extended to the terms and conditions of licences offered or granted by individual copyright owners (as does also the jurisdiction of the Australian and South African Tribunals).
The New Zealand Copyright Act 1994 maintained this Tribunal and widened its jurisdiction to correspond broadly to that of the 1988 UK Tribunal.(236)
South Africa, the constitution and jurisdiction of the South African Tribunal, established by the Copyright Act 1978, is largely based on the 1956 UK model, the main differences being:
1 that, as in the Republic of Ireland, its powers are vested in a single person (in this case the Commisioner of Patents);
2 that unlike the 1956 UK Tribunal, its jurisdiction is not limited to performing and broadcasting rights but extends to licenses and license schemes in respect of all the right granted under the Act; and
3 that (as in Australia and New Zealand) it has jurisdiction over licenses offered or granted by individual copyright owners.(237)
Canada, under the Canadian Copyright Act 1985, any organization issuing licences for performances of copyright musical work is required to file annually with the Copyright Office statements of the tariffs it proposes to apply during the next ensuing calendar year. These are then published in the Canada Gazette with notification that any person having any objection must file his objection within a stated period. Objections received and then referred to a Copyright Board established under the Act, consisting of a 'person who holds or who has held high judicial office' (the Chairman) and not more than four other members appointed by the Government. Proceedings of the Board are governed by rules made by itself and on the conclusion of its consideration it may make such alteration in the proposed tariffs as it thinks fit. The fees and charges determined by it are then published in the Canada Gazette and any user who tenders payment in accordance with the Board's decision is immune from any infringement proceedings even if the licensing body concerned has not actually granted its licence. Its decisions are subject to appeal only on restricted legal grounds.
Although this system has been criticized as unjustifiably prejudicial to the authors' exclusive right, it is, on the whole, considered to have worked efficiently and in particular it has effectively removed the risk of anti-trust accusations against Canada's performing right society (SOCAN), in marked contrast to the position across its southern border. Canada's 1985 Act also provides a mechanism for the determination by the Copyright Board of royalties and related terms and conditions in other areas of copyright (for example, reproduction rights) in the event that a party or parties wish to invoke the jurisdiction of the Board for that purpose.(238)
The United States of America
The United States may be different from others. Under the US Copyright Act 1976, there was created a Copyright Royalty Tribunal comprising five governmentally appointed Commissioners who appointed their Chairman annually from among their numbers. The Tribunal's jurisdiction was, however, limited:
1 to determining royalty rates payable under certain compulsory licenses, and
2 to determining the distribution of royalty fees deposited with the Register of Copyrights in respect of certain of those compulsory licenses.
The constitution and operation of this Tribunal was the subject of considerable political controversy, and it has recently been abolished, its functions being transferred to arbitration panels appointed by Libraian of Congress on the recommendation of the Register of Copyright.
The licensing organizations which administer musical performing rights in the United States were not subject to the jurisdiction of this Tribunal. They operate under consent decrees resulting from anti-trust proceedings brought against them by the US Department of Justice. In the case of the only one of the three organizations administering musical performing rights which is owned and controlled by those whose rights it administers (ASCAP), the consent decree provides that applicants for licenses on terms which cannot be agreed between the parties may apply to the Federal District Court for the Southern District of New York for the determination of a reasonable fee. In such proceedings the burden of proof in on ASCAP to establish the reasonableness of the fee
(226) Manfred Neumann, Competition Policy History, Theory and Practice, Edward Elgar Publishing, 2001 at 1.
(227) See Id, supra note 186.
(228) See Lingen, supra note 178, at 211-216.
(229) See Bainbridge, supra note 194, at 85.
(230) Michael Freegard, Jack Black, The decisions of the UK Performing Right and Copyright Tribunal, Butterworths, 1997 at 9.
(231) Id. at 2. The United Kingdom is a member of the Berne Convention but the United Kingdom made the following declaration in relation to Article 11 of the Convention:
'The United Kingdom delegation accepts the provisions of Article 11 of the Convention on the understanding that His Majesty's Government remains free to enact such legislation as they may consider necessary in the public interest to prevent or deal with any abuse of the monopoly rights conferred upon owners of copyright by the law of the United kingdom.'
(232) Id. at 46.
(234) Id. at 47.
(235) Id at 48.
(238) Id. at 49.