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Private Use on Musical Works, Rights of Public
Performance, and Collecting Society Systems.
By' Judge Visit Sripibool
In the United Kingdom, whether a circumstance is fair dealing or not may consider in the relevant factors as follows; (25)
(a) The amount and importance of what has been taken.
(b) The nature of the accompanying material and the relation it bears to what has
(c) Whether it was necessary to use the performance or whether the use was
(d) Whether the performance or recording was published or not. If it was not, it
will be more difficult to establish fair dealing.
(e) Whether what is sought to be justified as a fair dealing in fact competes with
(f) The motive for the dealing.
From factors mentioned above, it can be said that the exception of copyright
Infringement in the United Kingdom must be looked in detail of circumstances. Namely, if amount of copies is a few or short when compared with the whole of an original work or a part of work copied is not the important part of the original work, it would be fair. If the nature of work is normally to be criticized or reviewed, it would be fair. If it is strongly necessary to use the work, it would be fair. If the work was published before, it would be fair. If the act of dealing does not compete with rights' owners, it would be fair. If the motive for the dealing is not commercial advantage, it would be fair dealing.
However, the circumstance of those factors is not straightforward to every case. Sometimes, a use of even a very limited part of a work can constitute breach of copyright. (26)
In the area of computer programme, fair dealing is obviously permitted. This allow lawful users to make back-up copies of computer programs, to decompile computer programs and to copy and adapt computer programs if certain conditions are present. (27)
The Copyright, Designs and Patents Act 1988 provides for some specific exceptions to copyright infringement collectively known as the "permitted acts". These are acts which can be done without requiring the permission of the copyright owner and without infringing the copyright in the work in question. The permitted acts can be classified as follow: (28)
Library and archive use
Use associated with public administration
A great many other miscellaneous exceptions.
In summary, in UK, fair use or the exceptions to copyright infringement, the defendant has to answer the following questions in the way of as follows: (29)
1 Does copyright subsist in the work? NO
2 Is the act complained of a restricted act? NO
3 Does the act related to a substantial part of the work? NO
4 Did copyright owner authorise/consent to the act? (Express or Implied) YES
5 Is infringement in the public interest? YES
6 Does act fall within the "permitted acts"? YES.
Fair Use in European Countries
Most of European Countries probably have the law systems relating to private use and fair dealing in different ways; Belgium Copyright Law does not permit the making of private copies for domestic use.(30) Denmark, the making of an individual copy of a 'disseminated work' for private use is permitted under the Denish Copyright law of 1961 .(31) France, the making of copies and reproductions which are strictly reserved for the private use of the copying party, and which are not intended for collective utilization, is permitted . (32)Germany, the making of single copies of a work for personal use is permitted whether the copy is made by the would-be user or by a third party; if the work is reproduced in a sound or visual record, however, the copying is only permitted if the third party makes the copy gratuitously .(33) Please note that under German Law, both own use and small scale of copies are permitted. Greece, Greece Copyright Law makes no provision for private copying, it is difficult to see how the making of private copies could be justified in term of protection of the public interest. (34)Ireland, the Irish Copyright Act 1963, section 12 provides fair dealing with a literary, dramatic or musical work for purposes of research or private study, but taping of works incorporated into sound recordings or cinematograph films is not permitted. (35)Italy, the Italian Copyright Law No. 633 of 22 April 1941, as amended up to 1981, Article 68, the reproduction of individual works for the personal use of 'reader' is permitted if the copying is done by hand or by an uncommercial medium of reproduction.(36) Luxembourg, the law on the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 23 September 1975, providing 'fair use' by way of public policy, states that none of the related rights granted under the law of 23 September 1975 may, however, be invoked against the making of any copy for private use. This means that the home taping of phonograms does not infringe the producer's right, even if it infringes the copyright in an author's work. (37)Netherlands, Dutch copyright law, the New Regulation of Copyright, of 23 September 1912, as amended up to 27 October 1972, by Article 16(b) it is not an infringement of copyright to reproduce a work in limited number of copies for the sole purposes of the personal practice, study or use of the person who makes the copies or who order that they be made exclusively for himself.(38) The United Kingdom, the Copyright, Designs and Patents Act 1988 Section 29(1), 30 (1)-(3), fair dealing with a literary work, dramatic, musical or artistic work for the purposes of research of private study, or in the way of incidental inclusion(39) of copyright material.(40)
Fair Use in the United States
In the United States, the idea of fair use, in the beginning, was recognized by the courts(41) in the name of "Innocent Infringement". The courts consider the elements as these: (42)
1 The nature of the plaintiff's authorship and intention.
2 The status and purpose of the user.
3 the extent of the use, both quantitatively and qualitatively.
4 The effect of the use on the copyright owner's interests. Competitive or Non-competitive.
5 The absence of intent to plagiarize, especially as evidenced by proper acknowledgement of the copyrighted source.
Fair use of a copyrighted work is not infringement. The root of what in the United States is so called now as 'fair use' firmly planted in the early English common law, where the defense was known as 'abridgment'. From the earliest days of the doctrine, courts have recognized that when a second author uses another's protected expression in a creative and inventive way, the result may be the advancement of learning rather than the exploitation of the first writer.
Fair use made its in debut in American Law in case of Folsom v.Marsh,9F. Cas. 342(C.C.D. Mass 1841) (43)
At present, the 1976 Copyright Act of the United States Section 107 states for fair use obviously. (44)
However, whether the idea of fair use mentioned above can be also used to the music or not. In the United States, the Congress indicated that "the same general standards of fair use are applicable to all kinds of uses of copyrighted material" (45)
In particular, on music, there are the provisions of limitations on exclusive rights in Section 110 (4) and Section 111(a) (1)
On music, if we strongly scrutinize to the Copyright Act of the United States Section 110 (4) (46) and 111(a) (1) (47) that would be impliedly held that if no direct charge were made to hear the works, Exclusive Rights would be exempted.
An Analysis of the Fair Use Factors (48) in the United States.
It would be useful if we can look into the idea of fair use of the United States in details. That will be shown respectively.
The Purpose and Character of the Use
First would be considered is that the use is normal and reasonable limits. However, the limits are not confined to issues of the amount of copying and the effect of such copying on the potential market for or value of the copyrighted work. Second, it would be considered on the purpose and character of the use. That is, whether such use is of a commercial nature or is for nonprofit purposes. However, the line between commercial and nonprofit organizations is increasingly difficult to draw. Many 'non-profit' organizations are highly subsidized and capable of paying, and the widespread public exploitation of copyrighted works by public and other non-commercial organizations is likely it grow. In addition to these trends, it is worth noting that performances and displays are continuing to supplant markets for printed copies and that in the future a broad 'not for profit' exemption could not only hurt authors but could dry up their incentive to write. (49) In the specific type of uses cannot be strictly defined because each case must be decided on its own facts.(50) In some case, the court focused on the extraction of the most valuable portion of plaintiff's work and defendant's lack of research and attribution.(51) Some case, the court said that the fair use theory does not allow anyone to be entitled to save time, trouble and expense by availing himself of another's copyrighted work for the sake of making an unearned profit.(52) In computer program, the court said that(53) the doctrine of fair use would apply to all stages in the operations of information and storage retrieval systems, including input, and output in the form of visual images or hard copies. Reproduction of small excerpts or key words for purposes of input, and output of bibliographic lists or short summaries, might be examples of fair use in this area. On the other hand, because the potential capabilities of a computer system are vastly different from those of a mimeograph of photocopying machine, the factors to be considered in determining fair use would have to be weighed differently in each situation. For educational use, like all others, must be divided into commercial and nonprofit uses.(54) For off-air taping, the court said that(55) home noncommercial "time-shifting" of free broadcast television programs was fair use. But the court did not decide whether the following types of off-air taping would be fair use: home noncommercial taping of programs one was viewing; tape duplication; use of tapes for public performance; librarying of tapes; trading of tapes for noncommercial or commercial purposes; sale or rental of tapes; taping outside of the home by individuals and businesses, schools, or other organizations; taping of pay or cable programs or of nonbroadcast material such as videotex or computer generated works. A number of these uses would likely not be fair use for a variety of reasons, including the court held that
(25) Richard Arnold, Performers' Rights and Recording Rights, ESC Publishing Limited, Oxford 1990 at 101
(26)Jonas Wickstraund v. Forening Svenska Tonsattares Internationella Musikbyra, Swedish Supreme Court, 10 December 1986.
(27)David Bainbridge, Software Copyright Law, Second edition, Butterworth & Co (Publishers) Ltd. 1994 at 26.
(28)Id. at 26.
(29)Id. at 27.
(30)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 78.
(31)Id. at 81.
(32)Id. at 82..
(33)Id. at 87.
(34)Id. at 90
(35)Id. at 93
(36)Id. at 96
(37)Id. at 99
(38)Id. at 100
(39)The incidental inclusion of a performance or recording in a sound recording, film, broadcast or cable programme does not infringe performers' rights or recording rights. It is expressly provided that music and any accompanying words (whether spoken or sung) that are deliberately included are not included. It is not clear whether this means that any other class of performance must be included non-deliberately in order to be incidental. The exception extends to subsequent dealings in anything the making of which was not an infringement by virtue of paragraph 3(1) and in copies of any such thing.-Richard Arnold, Performers' Rights and Recording Rights, ESC Publishing Limited, Oxford 1990 at 102
(40)The Copyright, Designs and Patents Act 1988
Section 31 Incidental inclusion of copyright material
(1) Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film, broadcast or cable programme.
(2) Nor is the copyright infringed by the issue to the public of copies, or the playing, showing broadcasting or inclusion in a cable programme service, of anything whose making was, by virtue of subsection (1), not an infringement of the copyright.
(3) A musical work, words spoken or sung with music, or so much of a sound recording, broadcast or cable programme as includes a musical work or words, shall not be regarded as incidental included in another work if it is deliberately included.
(41)De Acosta v. Brown, (1944) 146 F.2d 408.
(42)Benjamin Kaplan, Ralph S. Brown, Jr., Cases on Copyright, Unfair Competition, and Other Topics Bearing on the Protection of Literary, Musical, and Artistic Works, Brooklyn, the Foundation Press, Inc. 1960 at 309
(43)See Chisum, Jacobs, supra note 10, at 175.
(44)Section 107. Limitations on the Exclusive Rights: Fair Use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any others means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
(45)William F. Patry, The Fair Use Privilege in Copyright Law, The Bureau of National Affairs, Inc. Washington, D.C. 1985 at Preface ix.
(46)Section 110. Limitations on Exclusive Rights: Exemption of Certain Performances and Displays
Notwithstanding the provisions of section 106, the following are not infringements of copyright:
(4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if-
(A) there is no direct or indirect admission charge; or
(B) the proceeds, after deducting the reasonable costs of producing the performance, are used
exclusively for exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions:
(i) the notice shall be in writing and signed by the copyright owner or such owner's
duly authorized agent; and
(ii) the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and
(iii) the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation;
(47)Section 111. Limitations on Exclusive Rights: Secondary Transmissions
(a) Certain Secondary Transmissions Exempted.-
(1) the secondary transmission is not made by a cable system, and consists entirely of
the relaying, by the management of a hotel, apartment house, or similar establishment, of signals transmitted by a broadcast station licensed by the Federal Communications Commission, within the local service area of such station, to the private lodgings of guests or residents of such establishment, and no direct charge is made to see or hear the secondary transmission; or
(48)See Patry, supra note 45, at 361.
(49)Id. at 369.
(50) Id. at 371.
(52) Id. at 372.
(53) Id. at 388.
(54) Id. at 404.
(55) Id. at 412.