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Articles
Private Use on Musical Works, Rights of Public
Performance, and Collecting Society Systems.
By' Judge Visit Sripibool
The net royalties are distributed to PRS members in accordance with the extent to which their works have been broadcast or publicly performed. In some case, it is not possible to find out every detail of performances. PRS then uses "samples" to allocate royalties, and also draws on record sales charts and other relevant information. Any composer, songwriter and music publisher can be a member if they are qualified by PRS's regulations.(276) Anyone wants to be a member have to pay an admission fee: 50 Pounds Sterling (VAT included) for composers and authors, and 250 Pounds Sterling (plus VAT) for publishers. Membership normally lasts for the member's lifetime. However, a member has the right to resign at intervals of three years from the original date of admission. Provisional writer membership may also be terminated at the discretion of the General Council if no royalties are credited to a member over at least a period of three years. On the death of a member, an heir may be admitted as a successor member.
Phonographic Performance Ltd (PPL). Under the Copyright, Designs and Patents Act 1988 (CDPA) there is a separate copyright for sound recordings as opposed to musical works. PPL deals with the public performance right for sound recordings. These sound recordings can be in any format (CD, audio files, etc). PPL licenses TV and radio stations, discos and clubs, juke box operators, background music operators and so on and this includes Internet simulcasts etc. An Internet simulcast in defined by the PPL as an Internet broadcast where a PPL-licensed broadcaster simultaneously transmits its terrestrial programming unchanged via the Internet. The PPL does not currently license Internet. The PPL does not currently license Internet radio services other than Internet simulcasts. In accordance with UK copyright law, PPL considers that 'public performance' means any performance outside the strictly family or domestic circle. PPL also licenses the reproduction of sound recordings-this is called 'dubbing; ie where a sound recording is re-recorded. PPL currently grants licenses to dub sound recording for the purposes of subsequent broadcasting or public performance only. If dubbing is required for any other purpose e.g. digital sampling then the record company or other owner will need to be dealt with separately. Video Performance Ltd (VPL). VPL administers the public performance, broadcast/cable programme rights and dubbing rights in music videos.
Cases Concerning the Collecting Societies
In European countries, there are many cases concerning the collecting societies. Some of them is the problem of discrimination between nationals of Member States which the court (ECJ) said that such abuse could affect trade between Member States,(277) some of them concern about the charging of two royalties and the rate of royalties which the court held that charging of two royalties might be possible with regard to the normal exploitation of copyright, in part of the rate of royalties the court said that royalties claimed were not unreasonable.(278) In a compulsory license case, the court said that the compulsory license may be granted for insufficiency of exploitation of the owner of rights.(279) In the European Community, the collecting society in any member states cannot charge royalties to any licensees from another state in different rate without compared on a consistent basis and unable to justify such the difference.(280)
In the United Kingdom, in case of infringement, and the plaintiff asking of injunction, the question is that how long is the appropriate period, and the injunction would be effect. The Court of Appeal said that the appropriate form of injunction should be one with immediate effect and of unlimited duration. The reason is that a plaintiff whose copyright has been infringed in entitled as to an injunction as a matter of course. In a infringement action the copyright owner has available all relief, including injunctive relief, and there is nothing requiring an owner of copyright of a type being considered in the case. An owner may exercise and exploit his proprietary right by licensing some and not others. He may charge whatever he wishes. Collecting societies have been recognized to be in the public interest. A court, when granting an injunction, is nevertheless required to exercise discretion and in so doing there might be circumstances where restriction or refusal of an injunction would be warranted. A person who exploits his proprietary right by licensing is entitled, where there are special circumstances, to prevent another from using that property right without his license and to refuse to grant a license save on his herms and conditions as to payment and use.(281)
There is an interesting case in Hong Kong concerning of the collecting of Royalties. Both parties are limited companies incorporate in Hong Kong. The plaintiff is wholly owned by an association called the International Federation of Phonogram and Videogram Producers (IFPI) which has about 600 members worldwide. The members produce sound recordings issued on more than 6000 "labels" worldwide. The purpose of the plaintiff, as the creature of IFPI, is to collect royalties in respect of the public performance in Hong Kong of the sound recording of members of IFPI.
The defendant carries on the business of a restaurant called the "California" in Hong Kong. Recorded music is played from phonograms in the restaurant during the serving of meals and at other times when there is dancing after dinner on three nights a week.
The plaintiff issued a specially indorsed writ against the defendant in a copyright infringement action. In the statement of claim the plaintiff pleaded that it was the owner of the copyright, consisting of the exclusive right of public performance in Hong Kong, in a number of sound recordings including seven specified recording bearing the labels of specified recording companies.
The statement of claim went on to allege, inter alia, that the defendant had infringed the plaintiff's copyright in the seven recordings by causing or authoring them to be heard in public in the defendant's restaurant on 4 December 1987 without the plaintiff's consent. It was further pleaded that the defendant was daily continuing to cause the public performance of sound recordings notwithstanding its knowledge that it was infringing the plaintiff's copyright.
On the basis of those allegations the plaintiff sought injunctive relief, damaged or an inquiry as to damages or an account of profits arising out of the defendant's infringement, discovery and cost…
On 27 January 1988 the defendant filed that affidavit of Mr. R H Kaufman who is the executive general manager of the defendant. He deposed at some length regarding the negotiations and correspondence regarding license fees between the parties which had preceded the action and which had culminated in the demand by the plaintiff for qualified license fees from 1 January 1988, including a greatly enhanced fee of $34,046 for 1988.
Mr. Kaufman deposed that the defendant had never intended to misappropriate the property of other without payment. His evidence was that before the defendant was advised by its legal advisers regarding the issues concerning the subsistence of the copyright and the plaintiff's ownership of that right, the defendant had been involved in protracted negotiations with the plaintiff about the reduction in the amount of the license fee until, all of a sudden, the plaintiff had demanded an increase of more than 15 times. He deposed that the defendant's wish was that the legal issue regarding the copyright should be resolved at an early date so that the defendant could obtain a license from "the appropriate body" at a reasonable fee, to be determined if necessary by the Performing Right Tribunal. As to the legal issue which the defendant sought to be resolved, Mr Kaufman deposed to his belief, based on legal advice, that the pleading in the amended statement of claim had '…in no way demonstrated that the plaintiff has a legal title to sue in its own name nor in any way could it procure the just determination of the legal issues involve…". He exhibited to his affidavit a copy of a draft defense which he deposed that the defendant sought to rely upon. The draft defense denies the plaintiff's claim to be the owner of the copyright, consisting of the exclusive rights of public rights of public performance in Hong Kong, in the relevant seven recordings, and puts the plaintiff to strict proof of that claim with full discovery, and to strict proof of the plaintiff's legal title to sue as provided for under the Copyright Act 1956.
The allegation of infringement was denied, in the draft defense, but on such denial was made in Mr. Kaufman's affidavit…
The judge gave his reasons for concluding that that Section 20(7) of the Copyright Act 1956 did not avail the plaintiff in establishing ownership of the copyright it claimed in the relevant recordings. Those reasons are not challenged on appeal and they are clearly right because Section 20(7) only raises a presumption of ownership of copyright in a sound recording. In the present case where the hearing proceeded on the basis that the only effective issue concerned ownership of the copyright, Section 9 of the orfinance positively required proof to the contrary before the presumption of ownership arising in favour of the plaintiff could be rebutted, No such proof was attempted by the defendant. The prima facie case made out by the plaintiff, strengthened by Section 9, remained unaffected by the defendant's mere denials. It followed, in my judgment, that as matters stood at the hearing the plaintiff should not have been denied summary judgment.(282)
The case, in some part of detail of the judgment, mentioned above give us many questions of collecting society. First, How much is the fee of royalties that would be appropriate? Second, What is a kind of rights that is in the scheme of the collecting society?, and what is not? Third, does which party have to prove the ownership of the copyright?Cases decided by the Tribunal
Case concerning, for the public performance of copyright music in the collecting society repertoire, both the method of computation and the amount of the fees.(283) In 1959, the Tribunal said that if there is an agreement between the collecting society and the licensee, even later the circumstances changed, the collecting society cannot change rates of fees to collect on the licensee. On the issues of computation of the fees, the Tribunal said that it would therefore permit the proprietor of any individual dance hall to elect voluntarily to pay at the rate of 1.5% on his actual gross takings from admission charges.(284)
In the matter of a discrimination, the Tribunal said that the collecting society cannot differentiate on the rate of fees (discount fees) to licensees. Such behaviors would be 'pregnant with the possibilities of unfair restrictions and injustice.(285)
There is an interesting case concerning on the royalty fees on music in discotheques. The Tribunal decided on 1 August 1989.(286) The originator is the Performing Right Society Ltd.('the PRS'). The interested party is the British Entertainment and Dancing Association Ltd.('BEDA'). The PRS referred to the Tribunal the licence scheme comprised in its Tarriff D which applied to commercial dance halls and other premises where the main business carried on was dancing and where dances took place on not less than one day each week throughout the year or during a season of not less than 75 days in the year. This tariff had first been considered by the Tribunal. In that reference the Tribunal had made an order fixing the licence fee payable to PRS at 1.6% of the sum produced by the application of a formula which had been in operation since 1949 (Basis A) but permitting the licensee to elect to pay instead 1.5% of the actual annual gross takings from admission charges (Basis B). In this reference the PRS contended that Basis A should be deleted, that commercial discos (as defined) should be brought within tariff D and that there should be substituted for Basis B a tariff calculated as follows:
Commercial discos
Basis I:
6% of the annual gross total of admission receipts (broadly defined) together with
3% of the annual gross takings from all activities conducted at the establishment
including sums paid for food and drink (excluding takings falling under the 6%
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(276) Id. at 10-11.
(277) J.A.L. Sterling, World Copyright Law, Sweet & Maxwell, London 1998 at 632-633 both in GEMA v. E.C. Commission , Greenwich Film Productions, Paris v. SACEM and GVL v. Commission.
(278) See Id. in Basset v. SACEM.
(279) Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland. February 18, 1992-Case No. C-30/90 (Court of Justice of the European Communities)
(280) Ministere Public v. Jean Louis Tournier, July 13, 1989- Case No.395/87 (Court of Justice of the European Communities).
(281) Phonographic Performance Ltd. v. Maitra, Court of Appeal, January 3, 1998 Unreported. Entertainment Law Review vol.9 1998. London Sweet & Maxwell, 1998 at N-68.
(282) Phonographic Performance (South East Asia) Ltd. v. California Entertainments Ltd., April 14, 1988. (Court of Appeal of Hong Kong)
(283) PRS v. Musical in Dance Halls, Michael Freegard, Jack Black, The decisions of the UK Performing Right and Copyright Tribunal, Butterworths, 1997 at 53-56.(284) Id.
(285) Id. at 63-64.
(286) Id at 151-159.