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Private Use on Musical Works, Rights of Public
Performance, and Collecting Society Systems.
By' Judge Visit Sripibool
even home noncommercial taping could be denied to be fair use if some meaningful likelihood of future harm exists, and every commercial use is an un-fair use if that may be presumed to result in future potential harm.
The Nature of the Copyrighted Work
Some kinds of work, even a short portion may have a significant impact on the commercial market for the work.(56) This element may be considered in case by case.
The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole
The questions of infringement and fair use do not always turn on quantitative assessments. In some case, the court said that(57) whether the appropriated publication constitutes a substantial portion of that which it copied cannot be determined alone by lines or inches which measure the respective articles. And another case, the court said that(58) when it comes to a question of quantity, it must be very vague. One writer might take all the vital part of another's book, though it might be but a small proportion of the book in quantity. It is not only quantity but value that is always looked to. It is useless to refer to any particular cases as to quantity. These can be concluded that the amount and substantiality of the portion of work must be as well considered on the value of the copyrighted work.
The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work
The effect of the use of work is not necessary to be occurred in the time of copy. It might occur in the future.(59) The effect of the potential market does also not immediately occur to the copyright's owner.(60) And the court focused on the value of the copyrighted work in the way of considering on the type of harm to the copyrighted work, not holding on the aspect of compensation, that is, even the act of copier may not show any damage, it might not be deemed to be fair use. In some case, the court said that(61) the copyright laws are intended to prevent copiers from taking the owner's intellectual property not aimed at recompensing damages that flow indirectly from copying.
Fair Use in Australia(62)
Australia has a common law system. The copyright exceptions and fair use is a fair dealing. The Australia Copyright Act 1968 provides the provisions for fair dealing(63) for the purpose of :
1 Research and study;
2 Criticism or review;
3 Reporting the news; and
4 The conduct of judicial proceedings or the giving of professional legal advice.
In Australia, the public policy objective of each provision served by each of the exceptions is different. For example, the exceptions for fair dealing for research or study meets the public policy objective of making materials available for students and scholars. The fair dealing exception for criticism or review is derived from the view that once a work is released to the world, there is a public benefit from its quotation for criticism or review. The exception for reporting the news meets the public policy objective of disseminating information about current events as widely as possible. The provisions in relation to legal proceedings are inserted into the Act to ensure that the smooth operation of the conduct of justice in the country is not impaired by the operation of exclusive rights.
Furthermore, the Australia Copyright Act also includes a number of exceptions, which while they permit the use of copyright material without prior permission also require payment to be made to the copyright owner. The most significant of these are the various statutory licenses for education.
Fair Use in Thailand
Thailand has the provisions in the Copyright law of B.E. 2537 regarding the fair use. There are some provisions concerning the topic of this paper is that(64)
"Section 32. An act against a copyright work by virtue of this Act of another person which does not conflict with a normal exploitation of the copyright work by the owner of copyright and does not unreasonably prejudice the legitimate right of the owner of copyright is not deemed an infringement of copyright.
Subject to paragraph one, any act against the copyright work in paragraph one is not deemed an infringement of copyright; provided that the act is each of the following:
(1) research or study of the work which is not for profit;
(2) use for personal benefit or for self benefit together with the benefit of other
family members or close relatives;
(3) comment, criticism or introduction of the work with an acknowledgement of
the ownership of copyright is such work;
(4) news reporting through mass media with an acknowledgement of the
ownership of copyright in such work;
(5) reproduction, adaptation, exhibition or display for the benefit of judicial
proceedings or administrative proceedings by authorized officials or reporting such proceedings;
(6) reproduction, adaptation, exhibition or display by an instructor for the benefit
of instruction provided that the act is not for profit;
(7) reproduction, adaptation in part of a work or abridgement or making a
summary by an instructor or an educational institution so as to distribute or
sell to students in a class or in an educational institution provided that the act is not for profit;
(8) use of the work as part of questions and answers in an examination.
Section 33. A reasonable recitation, quotation, copying, emulation or reference in
part from a copyright work by virtue of this Act with an acknowledgement of the
ownership of copyright in such work is not deemed an infringement of copyright;
provided that Section 32 paragraph one is complied with.
Section 34. A reproduction of a copyright work by virture of this Act by a
librarian in the following cases is not deemed an infringement of copyright;
provided that the purpose of such reproduction is not for profit and Section 32
paragraph one is complied with:
(1) reproduction for use in the library or another library;
(2) reasonable reproduction in part of a work for another person for the benefit of
research or study "
Fair Use in Case Laws
There are many cases occurring in many countries regarding fair use or fair dealing which shows magnificent ideas. So it is necessary to see the instance cases.
Fair Dealing in the United Kingdom
In the United Kingdom, the developments of fair use is in the cases begun from 1740,not called "Fair Use" but called "Used Fairly". For example, in Gyles v. Wilcox,1740, the court the court, Lord Chancellor Hardwicke, said that an abridgment had appropriated 35 out of the original 275 sheets of plaintiff's work. The abridgment can be excused from liability. because the abridgment is an invention as a new work.(65) While in Tonson v. Walker(66) ,1752, the court said that the defendant had merely added new own 28 original notes into the 1,500 notes of plaintiff's work is an evasion to the copyrighted work of plaintiff. In Dodsley v. Kinnersley,(67) 1761, the court rested on the fact that plaintiffs had previously published extracts of the work, which indicated to the court that the market for or value of the work would not be injured. In Roworth v. Wilkes,(68) 1807, the court said that "the intention to pirate is not necessary in an action of this sort."
In Wilkins v. Aikin,(69) 1810, the questions of quotation, competition, and amount of creativity are necessary to qualify as a fair use.
In the cases mentioned above show the historical idea of fair dealing in the United Kingdom. Namely, in the first stage fair dealing was developed by the courts. Those cases the courts focused on as follows;
1 the quantitative works of use.
2 the nature of an creation
3 the value of small parts of an original work.
4 the market value injured.
5 the intention of users.
The United States of America
In the United States, 1839, in Gray v. Russell,(70) the case involving the scope of protection to be accorded compilations of public domain materials. In Gray, plaintiff added public domain notes to a public domain Latin grammar. Defendant, in his edition of the same grammar, was alleged to have appropriated substantial portions of the notes found in plaintiff's work. After finding that plaintiff had a protectible interest in the plan, arrangement, and combination of the notes, and that defendant had infringed that interest. In Folsom v. Marsh,(71) 1841, the court rested on the substance of work, intellectual labor of the defendant, the essential part of the chief value of the original work, even though the defendant took only 4.5 percent of plaintiff's work, the court held that this portion was the most interesting and valuable that was infringement.(72) In Story v. Holcombe(73) , 1847, the court said that "the infringement of a copyright does not depend so much upon the length of the extracts as upon their value" In Murray v. Bogue,(74) 1852, the court said that the extraction of the vital part of the original work will not be deemed fair use. In Jarrold v. Houlston,(75) the good faith is an important element in a defendant availing himself of a claim of fair use.(76) In Simms v. Stanton(77) , 1896, the court focused on the point of "substantially diminish value of the copyrighted work", and an original work of copyright's owner should have been " protectible".(78) In West Pub. Co. v. Edward Thompson Co.,(79) 1909, the court focused on the question of substantial similarity in the expression between the two works, rather than on labor. In Leon v. Pacific Telephone & Telegraph Co.(80) 1937, the court laid great stress on plaintiff's " expensive, complicated, well-organized endeavor, requiring skill, ingenuity, and original research." In Leon, it can be concluded that copyright does not protect research efforts, business, or investment but copyright is only designed to promote the progress of science.(81)
For music, in Bloom & Hamlin v. Nixon(82) , 1903, the court found no infringement. In Bloom, the court held that the defendant did not perform or represent the song within the meaning of the Copyright Act, merely, imitated the chorus without musical accompaniment, merely, peculiar actions, gestures, and tones of the plaintiff are not infringed,(83) and in Green v. Minzenheimer(84) ,1909, the court found the same, the imitation of the voice, postures and mannerism did not infringe plaintiff's copyright. But, in Green v. Luby(85) , if a defendant sings the entire copyrighted song with musical accompaniment, the defendant may not be excused. Furthermore, in musical case, in Broadway Music Corp. v. F-R Pub. Corp.(86) ,1940, where plaintiff, copyright owner of the song "Poor Pauline," which was published contemporaneously with the movie Perils of Pauline, charged the New Yorker magazine with infringement for its reproduction of a portion of the chorus of the song in its "Talk of the Town" column. The chorus was quoted in connection with a commentary on the death of Pearl White, who had starred in the movie and who was associated with the song in the mind of the public. The defendant contended that there was no infringement and that the "incidental, illustrative, and fragmentary use that was a fair use". The court agreed. In particular, in case of broadcasting of music or reprinted some parts of the chorus of the song without music, it would be fair use in the way of implied consent.(87)
Those cases, in the historical aspects in the United States, can be concluded that the courts focused on as follows;
1 the substantial portions of the works
(56) Id at 418.
(57) Id. at 451.
(58) Id. at 452.
(59) Id. at 456.
(60) Id. at 457.
(61) Id. at 458.
(62) See Id, supra note 17.
(63) Australia Copyright Act 1968
Division 3-acts not constituting infringements of copyright in works
40 Fair dealing for purpose of research or study
(1) A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, for the purpose of research or studay does not constitute an infringement of the copyright in the work.
(1A) A fair dealing with a literary work (other than lecture notes) does not constitute an infringement of the copyright in the work if it is for the purpose of, or associated with, an approved course of study or research by an enrolled external student of an educational institution.
(1B) In subsection (1A) the expression lecture notes means any literary work produced for the purpose of the course of study or research by a person lecturing or teaching in or in connection with the course of study or research.
(2) For the purposes of this Act, the metters to which regard shall be had, in determining whether a dealing with a literary, dramatic, musical or artistic work or with an adaptation of a literary, dramatic or musical work, being a dealing by way of reproducing the whole or a part of the work or adaptation, constitutes a fair dealing with the work or adaptation for the purpose of research or study include:
(a) the purpose and character of the dealing;
(b) the nature of the work or adaptation;
(c) the possibility of obtaining the work or adaption within a reasonable time at an ordinary
(d) the effect of the dealing upon the potential market for, or value of, the work or adaptation; and
(e) in a case where part only of the work or adaptation is reproduced-the amount and
substantiality of the part copied taken in relation to the whole work or adaptation.
(3) Notwithstanding subsection (2), a dealing with a literary, dramatic or musical work, or with an adaptation or such a work, being a dealing by way of the reproducing, for the purposes of research or study:
(a) if the work or adaptation comprises an article in a periodical publication-of the whole or a part of that work or adaptation; or
(b) in any other case-of not more than a reasonable portation of the work or adaptation; shall be taken to be a fair dealing with that work or adaptation for the porpose of research or study.
(4) Subsection (3) does not apply to a dealing by way of reproducing the whole of a part of an
article in a periodical publication if another article in that publication, being an article dealing with a different subject matter, is also reproduced.
41 Fair dealing for purpose of criticism or review
A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary dramatic or musical work, does not constitute an infringement of the copyright in the work it is for the purpose of criticism or review, whether of that work or of another work, and a sufficient acknowledgment of the work is made.
42 Fair dealing for purpose of reporting news
(1) A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if:
(a) it is for the purpose of , or is associated with, the reporting of news in a news in a newspaper, magazine or similar periodical and a sufficient acknowledgement ot the work is made; or
(b) it is for the purpose of, or is associated with, the reporting of news by means of a communication or in a cinematograph film.
(2) The playing of a musical work in the course of reporting news by means of a communication or in a cinematograph film is not a fair dealing with the work for the purposes of this section if the playing of the work does not form part of the news being reported.
43 Reproduction for purpose of judicial proceedings or professional advice
(1) The copying in a literary, dramatic, musical or artistic work is not infringed by anything done for the purposes of a judicial proceeding or of a report of a judicial proceeding.
(2) A fair dealing with a literary, dramatic, musical or artistic work does not constitute an infringement of the copyright in the work if it is for the purpose of the giving of professional advice by:
(a) a legal practitioner, or
(b) a person registered as a patent attorney under the Patents Act 1990; or
(c) a person registered as a trade marks attorney under the Trade Marks Act, 1995.
(64) The Copyright Act of Thailand of B.E. 2537 (1994) (unofficially translated by the Department of Intellectual Property, Ministry of Commerce, Thailand), Published by the Department of Intellectual Property, September 2000 at 14-15.
(65) See Patry, supra note 45, at 6.
(66) Id. at 7.
(67) Id. at 8.
(68) Id. at 12.
(70) Id. at 18.
(71) Id. at 19.
(72) In Folsom, there are 3 main factors focused by the court:
1 The nature and objects of the selections made.
2 The quantity and value of the materials used.
3 The degree in which the use may prejudice the sale , or diminish the profits, or supersede the objects of the original work.
(73) Id. at 25.
(74) Id. at 29.
(76) In Jarrold, plaintiff was the publisher of the The Guid to Science, which by its question-and-answer format was designed to provide instruction in science "for the benefit of young persons and others who have not received a scientific education. A number of the questions has been submitted by the public in response to requests by plaintiff, while a number of the answers were taken from common treaties. Defendant published a book called The Reason Why, which followed the same format as the plaintiff's but which included original lectures by defendant.
(77) Id. at 38.
(78) In Simms, there are credible testimony that some of plaintiff's expression was of this nature. Furthermore, a defendant like Stanton is entitled to go to the sources plaintiff had gone to. Any similarity in expression resulting from such use is also not protectible.
(79) Id. at 44.
(80) Id. at 46.
(81) Id. at 47.
(82) Id. at 48.
(83) In Bloom, in dictum, the court stated that "surely a parody would not infringe the copyright of the work parodied, merely because a few lines of the original might be textually reproduced. No doubt, the good faith of such mimicry is an essential element; and, if it appeared that the imitation was a mere attempt to evade the owner's copyright, the singer would properly be prohibited from doing in a roundabout way what could not be done directly."
(84) Id. at 49.
(86) Id. at 58.
(87) Id. at 59. Karll v. Curtis Pub.Co (1941).
In Karll, the court agreed with the defendant, holding that "when the plaintiff dedicated the song to the Green Bay Packers, by implication at least he consented to a reasonable use thereof associated with the Packers."