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Private Use on Musical Works, Rights of Public
Performance, and Collecting Society Systems.
By' Judge Visit Sripibool
of any owner of personal property, including the right to use it, repair it, discard it, or resale it, subject only to overriding conditions of the sale.(109) The First Sale Doctrine in copyright law like patent law and trademark law. That is, the copyright law has the first sale doctrine, the theory of which is that a copyright owner's authorized sale of an item "exhausts" the exclusive intellectual property distribution right. The purchaser may use or resell the item free of any charge of infringement.
Obviously, the details raised above show that the exclusive right of copyright owner are exhaust in many ways.
However, there is a controversy concept that the first sale doctrine does not apply to the separate exclusive rights of derivative work preparation, public performance, and public display.(110) Why not?
Moreover, even the copyright matter within national use, the exhaustion of copyright is explicitly used in some of European Countries like Germany for example. In the Germany Copyright Act Section 16,17(2) has stated in detail and the court(111) said that "The statutory provision in Sec. 17(2) of the copyright Act is the expression of the general legal principle that copyright, like other intellectual property rights, must take second place to the interest in the marketability of the goods put into circulation with the consent of the entitled party. It means that whenever the copyright owners or their agents put their works into the markets that would be deemed to consent to another party. The another party entitled to distribute further-here the vendor of the copyrighted worked even perfume protected by copyright-cannot be prevented by copyright law from offering the goods and presenting them in advertising within the limits of what is usual, even if this involves a reproduction pursuant to Sec.16(1) of the copyright Act."(112)
This concept means that the usual uses by another party who buys legitimate copyrighted work is not infringement according to the first sale doctrine.
However, some of other European Countries, in the field of trade mark law, the concept of exhaustion of right in most of countries is still different. In some cases in the European Court of Justice (ECJ) ruled against international exhaustion by prohibiting the parallel importation of goods by a third party from a country outside the European Community into a member country. While, in contrast, the Swiss Supreme Court ruled in favour of international exhaustion in the Chanel case.(113)
How about a copy of musical copyrighted work which is sole to a customer, and then the customer plays it in normal ways or usual uses, the exclusive right of the copyright owner is exhausted.?
If we look at the TRIPS Agreement Article 6, even though the TRIPS Agreement does not establish any standards on the exhaustion of rights(114) , but in the fundamental idea of the exhaustion of right, especially in the Brussels Draft(115) , it seems that the basic idea of exhaustion is not only focused on the topic of sale, importation, or other distribution of goods but also the topic of uses. Therefore, when the right holders put their goods on the market, some of exclusive rights would also be exhausted by any aspect of uses.
Actually, the exhaustion principle is the same for all intellectual property rights which is based on their different functions,(116) That is, there would be both "essential function" and "specific subject-matter" of each intellectual property right.(117)
What is private use?
It is very difficult to define the scope of 'private use' because the meaning in itself seems to be already clear. But, actually, the act of private use is more complicate. Frequently, users may feel that the rightholders invade their private life, but, at the same time, the producers and publishers find that the private use of copyrighted materials has started to encroach upon the commercial field.(118) The private use sometimes is so-called 'homestyle'. The homestyle may mean any use to affect a small number of establishments.(119)
The significant meaning of private use is the meaning of 'private.' The Oxford English Dictionary(120) definition suggests that the word "private" means;(121)
1 belonging to an individual; one's own; personal;
2 confidential; not to be disclosed to others;
3 kept or removed from public knowledge or observation;
4 not open to the public, for an individual's exclusive use;
5 secluded ; affording privacy;
6 not holding public office or an official position;
7 conducted outside the state system, at the individual's expense.
In the said definition there are other two key words that would be altogether considered to interpret in the meaning of 'private' is that 'public' and 'individual'.
In the dictionary(122) 'individual' means;
2 particular, special; not general
3 having a distinct character
4 characteristic of a particular person
5 designed for use by one person: a single member of a class, a single human being as distinct from a family or group, a distinctive person.
The 'public' means(123) ;
1 concerning the people as a whole
2 open to or shared by all people
3 done or existing openly
4 provided by or concerning local or central government
5 involved in the affairs of the community
6 acting for a university, the community in general, or members of the community, a section of the community having a particular interest or in some special connection.
From those definition the 'private use' would mean "any use conducted by natural person(124) in particular single area for the purpose of a single member of a class or for particular person and not to be disclosed to others or removed from public knowledge or observation."
Private Uses in EEC
The private use or personal use, in general, is the exception of exclusive right of the copyright's owner. In the member states of EEC, there are many types of the private uses.
In France, the making of copies and reproductions of works which are strictly reserved for the private use of the copyist and not intended for collective use in permitted. No authorization is needed for reproductions strictly reserved for private use by the person who has made them and not intended for collective use.(125) Germany, the making of single copies of 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 recording, however, the copying is only permitted it the third party makes the copy gratuitously.(126)
Netherlands, it is not an infringement of copyright to reproduce a work in a limited number of copies for the sole purpose of the personal practice, study or use of the person who makes the copies or who orders that they be made exclusively for himself.(127) Potugal, the Portuguese law allows works to be reproduced without the authorization of the right owner when this is exclusively for private use and provided that it does not harm the normal exploitation of the work nor cause unjustified prejudice to the authors' legitimate interests and provided, finally, that the reproduction is not used for any purposes of public communication or commercialization.(128) Spain, the law provides that no authorisation is required also for copies made for the private use of sightless persons, provided that the reproduction makes use of the another specific process and that the copies are not used for gainful purposes.(129) However, in some cases for private uses, the laws in those countries may provide the provisions for paying royalty fees for the copyright's owners.(130)
Private Uses on Musical Works
Nowadays, music plays a substantial role in all of our lives. Everywhere we turn there is music of one kind or another, be it on the radio, television, as part of our own private collection or as background music at a variety of locations. We listen to different kinds of music, mainly for pleasure, to suet our mood at that time. Music is also sued in a multitude of settings to encourage customers to purchase certain items.(131)
Music copyright was first recognized in law following an English court case in 1777. It was ruled that music was "a writing within the Statute of the 8th of Queen Anne", the first statutory copyright of 1710 that protected newly published books from unauthorized reprinting for 14 years.(132)
On music, in the digital age, one of the important questions is whether authors and other rightholders should enjoy an exclusive right regarding digital copying for private use or whether the digital private copying should be free, provided some remuneration on blank media and perhaps, electronic hardware is paid. Denmark is one of the very few countries that has introduced an exclusive right in this field. At present, most countries still accept private digital copying.(133) Moreover, if focusing on the digital age of distribution of music, some music even suggest music for the individual customer should be free, with income generated from commercial use. A radical solution, indeed, but it would certainly remove some of the headaches of digital piracy control, and leave mass music infringement policing as a thing of the past.(134)
Normally, private use on music is not infringed if it is within the meaning of 'homestyle'. What is the 'homestyle'? Please see below as follows:
Small Business Exemption, "homestyles" in the United States.
Let us talk about the outstanding topic and case concerning private uses, business uses and/or homeuse. In the United States of America, the Copyright Act of 1976 has the provision on this interesting topic.(135) And there are many interesting domicile cases and the dispute in international forum which will be shown below.
In the United States, even small businesses where receive transmission from radios of televisions, and at the same times, play them in own their premises. They are not infringement. The court said that the received transmission may not be "further transmitted" to the public. In Broadcast Music, Inc. v. Claire's Boutiques, Inc.,(136) the court rejected the copyright owners' argument that placing the receiver in a backroom separate from the selling area where the speakers were located resulted in a further transmission, holding that "further" requires more than running speaker wire through a wall. Any interpretation of "further transmit" must take into account the definition of "transmit" a performance or display: "to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent." In examining this definition, "further" may be viewed as redundant, since any transmission will involve a communication beyond the place from which the performance originated. In the context of Section 115,(137) "further" makes sense as indicating that once the transmission has been received by the small business establishment, a subsequent-"further"-transmission will disqualify the establishment from the exemption. Still, under this approach the mere use of loudspeakers would result in a further transmission, and
(109) 59 U.S.P.Q. 2d. 1907.
(110) See Chisum, Jacobs, supra note 10, at 4 -119.
(111) The dicision of the Federal Supreme Court (Bundesgerichtshof) May 4, 2000- Case No. IZR 256/97
(112) IIC, International Review of Industrial Property and Copyright Law, Max Planck Institute. 6/2001 Volume 32. at 717.
(113) Andries van der Merwe, The Exhaustion of Rights in Patent Law with Specific Emphasis on the Issue of Parallel Importation, Intellectual Property Quarterly 2000, Editor John N.Adams, Sweet & Maxwell London, 2000 at 286.
(114) Carlos M Correa, Abdulqawi A Yusuf, Intellectual Property and International Trade The TRIPS Agreement, Kluwer Law International , London 1998 at 160.
(115) Daniel Gervais, The TRIPS Agreement Drafting History and Analysis, Sweet & Maxwell, London 1998 at 60.
(116) Even in the Silhouette case the view of the court was that the principle of the international exhaustion was fully consistent with the function of the mark as an indicator of origin. Frank Woolridge, Case Note The Silhouette Case: The Trade Marks Directive and International Exhaustion, Intellectual Property Quarterly 1998, Volume 2, Editor John N. Adams, Sweet & Maxwell, London 1998 at 440.
(117) Irini A. Stamatoudi, From Drugs to Spirits and from Boxes to Publicity (Decided and Undecided issues in relation to trade marks and copyright exhaustion), Intellectual Property Quarterly 1999, Volume 3, Editor John N. Adams, Sweet & Maxwell 1999 Londer at 94.
(118) Antoon Quaedvlieg, Copyright's Orbit Round Private, Commercial and Economic Law-The Copyright System and the Place of the User, IIC International Review of Industrial Property and Copyright Law, Volume 29, the Max Planck Institute for Foreign and International Patent, Copyright and Competition Law, Munich, 1998 at 421.
(119) Laura A. McCluggage, Section 110(5) and The Fairness in Music Licensing Act: will the WTO decide the United States must pay to play?, IDEA The Journal of Law and Technology, Vol.40, No.1, Franklin Pierce Law Center, 2000 at 39.
(120) In case of the meaning provide by law is not clear, the Oxford Dictionary may be required. See Arnold, below note 120, at 44.
(121) The Concise Oxford Dictionary, Ninth Edition, Oxford University Press, 1995 at 1088.
(122) Id. at 692.
(123) Id. at 1106.
(124) Richard Arnold, Performers' Rights Second Edition, Sweet & Maxwell, 1997 at 50.
(125) Gillian Davies, Michele E. Hung, Music and Video Private Copying, An International Survey of the Problem and the law, Sweet&Maxwell, 1993 at 121.
(126) Id. at 129.
(127) Id. at 140.
(128) Id. at 144.
(129) Id. at 147.
(130) See. Id.at 129, 140, 144, 147.
(131) Russell Frame, The Protection and Exploitation of Intellectual Property Rights on Internet: The Way Forward for the Music Industry, Intellectual Property Quarterly, Intellectual Property Institute and Contributors, 1999 at 13.
(132) See Kretschmer, supra note 4, at 2.
(133) Peter Schonning, Licensing Authors' Rights on the Internet, IIC International Review of Industrial Property and Copyright Law, Volume 31(2000), Max Planck Institute WILEY-VCH, 2000 at127.
(134) Tim Smith, Digital distribution of music, Copyright World, April 2000, issue 99, LLP Professional Publishing, April 2000 issue 99 at 19.
(135) Section 110 Limitations on Exclusive Rights: Exemption of Certain Performances and Displays
(5) communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless-
(A) a direct charge is made to see or hear the transmission; or
(B) the transmission thus received is further transmitted to the public;
(136) 949 F.2d 1482 (7th Cir. 1991).
(137) See the United States of America Copyright Act of 1976 Section 115 Scope of Exclusive Rights in Nondramatic Musical Works: Compulsory License for Making and Distributing Phonorecords.