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Private Use on Musical Works, Rights of Public

Performance, and Collecting Society Systems.

By' Judge Visit Sripibool

requested by it. Pending completion of negotiations or proceedings, the applicant for a license has the right to use works in the ASCAP repertoire but the court may fix an interim fee pending final determinations. The court's decisions are subject to the normal appeal processes.(239)
The now defunct Copyright Royalty Tribunal was a major and controversial creation of the 1976 Act. It was an independent agency functioning within the legislative branch of the government, and was set up to administer copyright's five compulsory licenses. Members of the agency were nominated by the President for staggered seven-year terms. The Copyright Royalty Tribunal served two functions. The first was to set the statutory royalty rates for the compulsory licenses. The Second was to settle disputes concerning the distribution of monies collected for cable television and jukebox performances. Although the statute provided relatively clear direction for the Tribunal's rate-making activities, it gave little indication how the Tribunal should distribute royalties. As a result of this vagueness, the Tribunal's activities had become embroiled in a constant stream of litigation and criticism, and then, the Copyright Royalty Tribunal was abolished. In 1993, the Congress replaced it with Copyright Arbitration Royalty Panels to be convened, as the need arises, by the Librarian of Congress with the recommendation of the Register of Copyrights.(240) On December 7, 1994, the Copyright Office issued final regulations concerning the copyright arbitration panels. At the same time, however, the Copyright Office announced that it will continue as a practice the Copyright Royalty Tribunal's practice(241).


An important function of collecting societies is the general representation of its members in making submissions to governments, and generally in bringing before the public the arguments in support of the recognition of the rights of its members. Societies often dispose of legal and other expertise of high caliber which enables them to institute campaigns on particular issues, and also to keep up a steady representation of members' rights in ongoing public relations exercises.

Like in the United States, there are many collecting societies. They have a variety of functions, most of them are alliance calling ADAPSO; these consist of the Computer Software and Services Industry Association, the American Film Marketing Associations (AFMA), the Association of American Publishers (AAP), the Computer and Business Equipment Manufacturers Association (CBEMA), the International Anticounterfeiting Coalition (IACC), the Motion Picture Association of America (MPAA), the National Music Publishers' Association (NMPA) and the Recording Industry Association of America (RIAA). They have always functioned to lobby the parliament members to pass the Act for the protection to the right's owners.

Undoubtedly, collecting societies have enabled rightowners to benefit from the exercise of rights and the regulation of use of their material in circumstances in which individuals could never hope to locate and license all or even the majority of the uses being made. Furthermore, it can be said that, where properly regulated, the collecting society performs a function, which is in the public interest, since it facilitates the application of the provisions of the law so that situations where a right is established but not exercised are avoided.
Inevitably, collecting societies, in growing more efficient and in acquiring more extensive repertoires, including those of other countries, have assumed positions of sole responsibility for the exercise of rights in particular areas, and this has led to conflict with the laws on competition, in particular as regards the exercise of rights where, in effect, a monopoly situation exists.
It is likely that the effective control of the use of protected material in electronic transmissions, interactive services, etc., will mean that rightowners will be obliged to register their rights with the respective collecting societies, if such uses are to be controlled. While this may be regarded as a negative aspect, if one recalls that formalities are not permitted under the Berne Convention as a criterion for the subsistence of rights, it should, it is thought, be recalled that such has long been the situation with the exercise of broadcasting and public performance rights, where collecting societies have administered repertoires in circumstances where the individual rightowner could not have acted.
it would seem that any negative aspect of collective society licensing can be met by national rules on tribunal adjudication of tariffs: and there is too the ultimate sanction, as it were, of application of the competition rules.
The importance of collecting societies is likely to grow in the new technological environment, particularly in view of the need for international licensing procedures to deal with the use of protected material in satellite transmission, multimedia productions and on the Internet and services. In addition, the role of collecting societies in licensing the production and dissemination of protected material in multimedia productions will doubtless increase.

Collective management is perceived as being in the interest of both authors and those users who fond themselves faced with increasingly lengthy and costly searches for rights clearance, which often proves incomplete. Inevitably, it follows that rights management organizations have become an essential practical and economic ingredient within the copyright regime.(242)

In 1996, in the United States, the five major media companies, accounting(as rightholders and users) for 80 per cent of royalties collected and distributed by European collecting societies, have discovered a commercial logic for withdrawing from the current regime of collective administration altogether. Polygram (now part of Universal) reported that it had identified potential saving of $ 2.5 million per annum if royalties payable from Polygram Records to Polygram Publishing were processed directly. In South East Asia, multinational music publishers have signed a Memorandum of Understanding which allows the major players to collect mechanical royalties themselves without having to support a system of copyright societies along European lines.(243)

However, the system of the collecting society in each country may be different. It is up to three concepts as followed: legal conceptions, economic conceptions, and philosophical conceptions.(244) In some points, especially on music, in an economic analysis of music copyright would consider market performance, as reflected in allocative efficiency, transactions costs and technological progress. This would implicate four principles. First, the relative price ratio between two substitutable distribution technologies should not be distorted by the presence of asymmetric copyright surcharges. Distortion is most likely to occur when one of the two technologies is made subject to a particular copyright surcharge, while the other is not. Second, transactions and monitoring costs should be reasonably economized by 'one-stop shopping' and reduced administration. Third, higher copyright fees benefit labels and publishers but are among the costs that concern providers of new technology. Fourth, a copyright system that does not directly protect creators may pose dangers with regard to their abuse. Furthermore, there are four points in licensing system. First, all licensing rights concerning digital audio transmissions of sound recordings and music compositions should be integrated under the respective administration of record labels and music publishers, who may license music to users through exclusive or compulsory licences (as legally specified). Second, payments due to each can be monitored through one independent organization charged with the responsibility of tracking music usage and assessing due amounts. Third, songwriters and publishers should be guaranteed and equitable share of digital royalties. Fourth, societies that have been established to collect performance royalties in musical compositions can be limited or proscribed from licensing digital transmissions.(245)

In France, the amount of royalty payable on tapes is to be proportional to their duration. The scale of remuneration over a period of between one to five years is to be fixed by agreement between representative bodies of right owners and manufactures and importers. Failing agreement, the scale will be fixed by a committee including representatives of the interested parties and presided over by a magistrate, who has a casting vote. Right owners will be obliged to donate 20 percent of their royalties to support cultural purposes. In respect of the royalty on audio tapes, right owners have agreed since 1976 that 50 percent will be paid to authors, composers and music publishers, 25 percent to producers and 25 percent to performers(246) .

In Germany, if it is to be expected that it will be reproduced for personal use by the fixation of broadcasts on visual or sound record, or by transferring from one visual or sound record to another, the author of the work shall have the right to demand from the manufacturer of equipment suitable for making such reproductions a remuneration for the opportunity provided to make such reproductions. A person who for commercial purposes introduces or reintroduces such equipment shall be jointly responsible with the manufacturer. This right shall not exist if, from all of the circumstances, it appears probable that the equipment will not be used for the commercial purposes. This right may only be enforced through collecting societies. By way of remuneration, each copyright owner shall be entitled to an equitable participation in the proceeds realized by the manufacturer from the sale of such equipment; the total claims of all copyright owners shall not exceed 5 percent of such proceeds.(247)

In Italy, the Italian authors' society has an official stamp of the SIAE. This stamp is applied to all legitimately produced phonograms in respect of which the author's copyright royalty has been paid; any record or tape on sale without it is assumed to be pirated, and a complaint from SIAE will be followed by police action. If SIAE brings a civil action itself, the record companies may join it.(248)

In the United Kingdom, collecting societies is necessary since neither performers' rights nor recording rights are assignable, any collecting societies which may be established to license users and collect royalties under Part II of the 1988 Act will not be able to take enforcement proceedings in their own name. They will therefore function in a manner akin to, say, Mechanical-Copyright Protection Society Ltd rather than, say, Phonographic Performance Ltd.(249) The collecting societies have worked well in the music field where, for example, the MCPS, the PRS and the PP have been operating successfully for many years.(250)

Rate of Royalty

Normally, the rate of royalties may not be fixed by laws, in particular in the United Kingdom and the United Sates, the rate of fees collected by the collecting societies is up to bargaining between the societies and licensees.(251) However, for the new system will be settled, the questions might be asked that is what is the best rate of fees for both parties? For these questions, in general, the rate of fees systems can be separated as follow;(252)
1 A uniform fee per license
2 A fee based on all receipts

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(239) Id. at 49-50.
(240) See Leaffer, supra note 108, at 223-225.
(241) See Patry, supra not 140, at 260.
(242) See Suthersanen, supra note 181, at 18.

(243) See Bainbridge, supra note 194, at 151.
(244) Id. at 147-150.

(245) Michael A. Einhorn, Music licensing in the digital age, Copyright in the Cultural Industries, Edited by Ruth Towse, Edward Elgar Publishing, United Kingdom 2002 at 166.
(246) 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 85.
(247) Id. at 87
(248) Id. at 96
(249) See Arnold, supra note 25, at 76

(250) Alan Williams, Duncan Calow, Andrew Lee, Multimedia, Contracts, Rights and Licensing, Pearson Professional Limited 1996 at 143.
(251) This information given by Dr. Uma Suthersanen the distinguished lecturer of school of law, Queen Mary & Westfield College University of London, in the occasion of discussing on my paper, taking place on 17 October 2002 at 4.00-5.30PM. I wish to take an opportunity to thank her again. She gives me very much useful information.
(252) See PRS v Musical in Dance Halls, below note 283.