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Private Use on Musical Works, Rights of Public
Performance, and Collecting Society Systems.
By' Judge Visit Sripibool
for socio-cultural fund, and set up pension for composers.(266) Furthermore, In other European countries such as Austrian, France and others, the royalties collected by the societies probably will be deducted for social and cultural purposes from remunerations around not exceed 10%.(267) But In the United Kingdom shows significant parallels but most of all are in the contractual practices. And some society such as PRS did not make any official socio-cultural deductions.(268)
2 For a pension fund, in Germany there is a pension for 60+-year-old authors/members who have paid premiums for at least 25 years. The publishing firm/members receive their "pensions" already five years after starting their payments and until the end of their membership. The payments have been made by all the members and the level of their "pensions" relates directly to their paid premiums.(269)
3 A distribution of royalties, the money should be distributed to the individuals who appeared in those performances. In general, the income should be distributed among individual right owners whose works have been used.(270)
The Role of Collecting Societies in the Digital Environment(271)
It will be apparent from the discussion so far that clearing digital rights for copyright purposes is potentially an enormous task. Consider a digital radio station. Does the copyright and performer's right position for each piece of music broadcast need to be cleared for each piece of music played? Surely not -securing individual rights for each three minute track would be a bureaucratic nightmare for user and owner alike.
In fact since 1851 when SACEM in France was founded, 'collecting societies' have been established around the word to act as clearing houses for a range of copyright and related rights. Members of these societies (who own the rights to be licensed) typically either transfer the rights to be licensed to the society or empower the society to act as their agent in granting licenses of their works. The society remits royalties (typically on agreed scales) to members and administers licenses of members' rights.
The various collecting societies that operate in the UK have grown out of the analogue world. Nevertheless they are likely to become increasingly important in helping to manage the copyright licensing of works in the digital environment. Indeed a number already grant licenses that relate to 'electronic rights'.
There are many collecting societies operating in the UK. The functions of some of the more important ones are set out below. Collecting societies are particularly important to the music industry. Also discussed below is a digital rights case study involving collecting societies.
Of course collecting societies are generally voluntary in nature so not all authors or publishers may choose to use them either in whole or in part. Also the societies may not have yet devised licensing models for digital works of it they have these may still be limited in scope. So collecting societies are not a panacea for either authors or users. Nevertheless they should always be considered in developing any strategy to protect, use or exploit digital works. In addition a number now operate internationally by working with foreign equivalent organizations on a reciprocal basis. For example the International Federation of the Phonographic Industry (IFPI) has developed a reciprocal agreement to allow webcasting across national borders. There are also moves for collecting societies to co-operate to provide a 'one-stop shop' for clearing multimedia rights. Digital technology may itself assist collecting societies in these activities.
It is now common for users to personalize their mobile phones by including musical ring tones. If the tunes relate to musical works which are in copyright then a license will be required from the owner of the copyright then a license will be required from the owner of the copyright in the musical work to(272):
1 In effect record (copy) the musical work into a (digital) file of electronic instructions to be used to generate the musical tone;
2 Upload (ie copy) the file to a server;
3 Deliver the file to the user (this may involve transitory Internet copies being made if delivered via the Internet;
4 Download the file to the mobile phone (copy).
The MCPS will grant licenses dealing with these activities in the context of mobile phone ring tones. A license should not ordinarily be required for playing the ring tone as this would generally not be a 'public performance' of the recording or work. In addition if the file is made available for access, downloading and/or sampling (to decide whether to buy it) via the Internet then this is arguably inclusion of the work in a cable programme broadcast and so a license from the PRS may also be required. Licenses may also be required from the programmers/company responsible for creating the digital file.
The Major Collecting Societies in the UK.(273)
The Copyright Licensing Agency Limited (CLA). The CLA was formed in 1982 and deals with licensing content for reproduction by reprographic means. Its members are the Authors' Licensing and Collecting Society (ALCS) and the Publishers, respectively. The content is from books, journals and periodicals. Until recently only literary works were covered but artistic works are now included through arrangements with DACS(see later). Traditionally the CLA has only permitted the photocopying of works under the license (ie paper to paper copying) as opposed to digital scanning, but this likely to change. But works as electronic form (eg CD-ROM or online) do not fall within the CLA's licensing scheme at present, nor are they likely to. The Newspaper Licensing Agency Limited (NLA). NLA was formed in 1996 in order to license the making of newspaper articles. The newspaper publisher typically assigns to the NLA the copyright in the typographical arrangement of the published edition together with (where possible) the underlying copyright in the literary and artistic works themselves. Design and Artists Copyright Society Limited (DACS). DACS was founded in 1983 and deals with works of visual art including photographs. DACS are addressing the challenges of digitization and have developed a number of innovative digital licensing models, and they will also deal with website image re-use issues, etc. The Mechanical Copyright Protection Society Limited (MCPS). MCPS is the society that protects the 'mechanical' copyright in musical works. This includes the right to make sound-bearing copies of musical works, to issue copies to the public, to import them and to authorize these activities. MCPS is now in alliance with the PRS (see later). The MCPS offers a number of licenses and services of relevance to digital works including computer games, online music, mobile phone ring tomes, CDs, and DVDs. The MCPS-PRS alliance is also co-ordinating an EU-funded project called 'Rights Watch' to develop codes of conduct and procedures to remove copyright infringing material from the Internet. Performing Right Society Limited (PRS). The PRS administers the 'performing right' in musical works ie:
1 Right to perform the work in public;
2 To broadcast the work or to include it in a cable programme service;
3 Right to authorize others to do this;
4 Film synchronization rights (ie right to record the work on a film soundtrack) are also administered by the PRS.
The PRS therefore licenses a wide range of persons including(274):
1 BBC, ITV and other broadcasters;
3 Shops, offices, clubs, pubs, cafes, etc (eg for music on hold, background music, etc).
Furthermore, the PRS classes the presentation of music on a website as 'cable performance' and therefore licenses this, whether the music is 'performed' via clips, streaming or otherwise. In addition where the music is to be downloaded the MCPS will also need to be contacted in connection with a mechanical rights license: this highlights that there is as yet on one -stop shop licensing body for musical works.
The members of PRS comprise of composers, songwriters and musical publishers. It administers the "performing right" in their music. PRS policy and administration are controlled by an elected General Council of non-executive Directors who include a Chairman and two Deputy Chairmen. Half the Council members are writers and half are publishers, each category broadly divided between pop and non-pop interests including classical. All Council Directors are elected by the membership for the day-to-day running of the Society, is appointed by the Council. Normally, the license fees are negotiated with associations representing the various users. The users also have the right to refer the PRS charges to the Copyright Tribunal, a legal panel set up to resolve disputes between copyright owners and their customers. PRS claims that it makes no profits for itself,(275) all money collected is paid out as royalties after deduction only its operating costs.
(266) See Id, at 4, 9.
(267) Ferdinand Melichar, Deductions Made by Collecting Societies for Social and Cultural Purposes in the Light of International Copyright Law, IIC International Review of Industrial Property and Copyright Law, Volume 22, the Max Planck Institute for Foreign and International Patent, Copyright and Competition Law, Munich, 1991 at 47-60.
(268) See Kretschmer, supra note 4, at 4-5.
(269) See Jehoram, supra note 186, at 5.
(270) Id. at 6.
(271) Simon Stokes, Digital Copyright Law and Practice, Butterworths, 2002 at 169-170.
(272) Id. at 173-174.
(273) Id. at 170-173.
(274) See The Performing Right Yearbook, supra note 246, Id.
(275) The leaflet released by The Performing Right Society (PRS) March 1993 at 8.