Use on Musical Works, Rights of Public
and Collecting Society Systems. (1)
Judge Visit Sripibool *
current hot issue in developing countries is the problem of conflict of
interests in royalty collecting for music in department stores, restaurants
and Karaoke shops nationwide. Some groups want to collect fees directly
by themselves, others want to collect on behalf of the collecting societies,
while the entrepreneurs do not want to pay fees.
though the dispute of copyright interests mentioned above may not be called
"crisis" right now, but it has shown a significant sign that
it might become a big problem in the near future, which some aspects have
already occurred. For example; in Thailand, an event was the protest of
the society of Karaoke owners against the government's policy on this
issue in few months ago.
finally, fees must inevitably be collected. The important question is
that how is the best?
fees for music mentioned above will be collected without the system, what
will be going on? In theory, the problems would be as below;
1 Many enterprises of entertainment will face the cost of allowances that
occur both high fees for music and many other rights of the copyright's
2 The higher the music copyright fees will be paid, the infringement of
copyrights will be higher.
3 Music businesses may be obstructive.
When there are the said problems, the questions on intellectual property
rights will then be raised to discuss, inevitably, both the concept of
the exclusive rights of the copyright owners and the concept of rights
of users who have legitimate copyrighted works, moreover, the concept
of private uses.
classic question always raised is that why the owner of legitimate copyrighted
works cannot freely use or play the legitimate copies without paying fees
for the copyright owners, because they have already paid when they bought
the copies? Why they cannot play music to entertain their customers without
any direct charge to the customers.
do we balance between the rights of owners and the rights of consumers?
What will we choose between the money for the owner's rights and the entertainment
for public? When do we focus on the economic rights, or do we concentrate
on the public interests? These questions will respectively be answered
later, otherwise the problems would be solved in their own process.
the philosophy aspect, the copyright law is designed to achieve this objective
by granting property right to authors that provide them with financial
incentives to produce and distribute creative works. The user's right
philosophy assumes that authors will only invest sufficient resources
in creating and publishing new works if they will have ownership rights
that will enable them to control and profit from their works' distribution
to the public. So, actually, the concept of the copyright owner is the
economic right. If we talk about the economic rights, unavoidably, we
have to talk about the economic system. At present, the free market economic
system disfavors monopoly unless there is a limited justification for
them.(2) The question is whether the exclusive right
of the copyright owner is a monopoly. Let see other philosophies. The
United States'economy and the economies of most Western nations are based
on the free market system and the belief that profits are the just reward
for labor expended in creative endeavors. However, some other countries
are based on different economic foundations and have different viewpoints
on the concept of authorship. Many eastern economies are related to the
religions of Confucianism, Buddhism, and Islam, which are more communally
oriented. According to these countries' economic systems, profits should
be shared within society. Under the authorship philosophies of some Asian
countries such as Korea, creative works have historically been viewed
not as private property belonging to their authors but as goods for everybody
to share freely. In these countries, cultural esteem rather than financial
gain was the main incentive for creativity. In feudal China, Confucian
literary and artistic culture was based upon interaction with the past
and discouraged bold innovation. Much of this background has survived
in the people's Republic of China, which has been hostile to the concept
of private ownership rights in intellectual property. However, China has
been forced, due to foreign economic pressure, to adopt a copyright system
highly similar to those of most Western nations. The forced nature of
copyright is a probable reason for the enforcement problems that have
been prevalent in China as well as other Asian countries. In many cultures,
copying of copyrighted works is tolerated to a much greater extent than
in the United States. In Islamic countries, where piracy is rampant, the
rationale is that copying of original material should not be prevented
since the most
dissemination of knowledge benefits the public good. Similarly, in countries
such as China, Taiwan, South Korea and Singapore, imitation and reproduction
of ideas, art and scholarship are sometimes considered a token of honor
and respect. In the concept of economic rights philosophy, American copyright
law, although historically based upon the user's rights philosophy, also
incorporates some of the author's rights philosophy. Actually, it may
be more accurate to describe the current American copyright policy as
an economic rights (or trade-based) philosophy. The United States is the
world's largest producer and exporter of intellectual property. Copyrighted
works account for over $457 billion (or 5.5%) of the annual gross domestic
product in the United States. Copyright-related industries are also the
fastest growing segment of the U.S. economy and employment in copyright
related industries has grown at about three times the rate of employment
growth in the economy as a whole in recent years, accounting for about
4.3 million jobs. Copyrights bring more revenue into the United States
than any other major industry, including aircraft, automobiles and agriculture.
As copyrighted works have become a larger part of international trade,
they have also become one of the few positive components in the otherwise
unfavorable United States trade balance (i.e., the U.S. imports more of
just about everything than it exports). One major exception is copyrighted
works, where the U.S. has a surplus trade balance with every country in
the world. Although foreigners are not buying huge quantities of American
physical products such as cars, stereos or computers, foreign sales of
American intellectual property products such as music, movies, television
programs and computer programs are substantial. Consequently, the United
States has taken a much more active role in expending copyright's reach
and enforcing copyright on an international basis, often without much
consideration of either author's or user's rights. For example, the United
States recently decided to extend the duration of copyright by twenty
years. It seems unlikely that this additional twenty years of copyright
protection will make authors more likely to create artistic works. In
reality, the two primary motivating factors for the twenty year extension
were: (1) to preserve many valuable copyrights (including the copyrights
to several Disney characters such as Mickey Mouse and songs written by
George Gershwin) that were about to expire; and (2) to bring the term
of American copyright protection in line with many European countries.
Although these reasons may be important, they have little to do with encouraging
authors to create new works. These was no evidence presented to suggest
that authors would be less likely to create new works without the additional
twenty years of protection and, in fact, this issue was not even considered
by Congress. The passage of the term extension amendment was due primarily
to the lobbying efforts of the copyright owners of some very valuable
copyrighted works such as Disney and the Gershwin estate, with only token
consideration given to providing incentives to authors or public access.
This goes against the ideological basis for copyright, but reflects the
reality of our political system.(3)
mentioned above have obviously shown that the reasons for protection on
intellectual property works in each country are different. Those reasons
are based on political, religious, economic, and cultural philosophical
paper is made for the ECAP II Research Programme, taking place at Queen
Mary Intellectual Property Law Research Institute University of London,
1 September- 31 October 2002.
* Judge of The Central Intellectual Property & International
Trade Court, Bangkok, Thailand. I am grateful to all those who give me
a good opportunity for researching at a wonderful institute, Queen Mary
Intellectual Property Research Institute, Queen Mary & Westfield College
University of London. Especially, I would like to thank Mr. Johan Amand.
Project Director of ECAP II Project who supports all of allowances in
the periods of two months including flight tickets and accommodation,
Ms. Gulsemin Bal, Project Assistant, who has completely arranged all for
me, Professor Michael Blakeney, Director of Queen Mary Intellectual Property
Research Institute, who warmly allows me to make a research here, Dr.
Uma Suthersanen, lecturer of school of law, Queen Mary collage University
of London, who is very nice for all information for making the research.
Ms. Swee Ng, IP Units staff, who has friendly helped me for all in London.
David J. Moser, Music Copyright for the New Millennium, ProMusic Press,
2002 at 5.
Id. at 6-7.