on Musical Works, Rights of Public
and Collecting Society Systems.
Judge Visit Sripibool
owners may claim the property right is an original right of human being
but it would be noted that even though the property right exist everywhere,
what is necessary about them is just that some exist. It appears that
many specific systems of ownership are compatible with any set of environmental
conditions and social structures. (4)This paper will
show some aspects of difference, some interesting concepts, and some important
systems concerning the said topic of the paper.
Purposes of the Paper
This paper may probably be concentrated on the purposes as follow;
1 To make clear the concept of the exemption and the limitations of exclusive
right of the copyright owners.
2 To show the concepts in laws and concerning cases on the issue of the
limitations of the exclusive right occurred in European Countries and
the United States of America.
3 To exemplify the current systems of collecting societies in European
countries and the United States, problems, and the instances of cases.
This paper does not purport to deal with the complete all of data regarding
aspects as such, but rather shows some of detail and ideas of interesting
aspects in general.
For those purposes, that is necessary to talk about, in details, the concept
of fair use or fair dealing, the concept of exhaustion of rights, and
some of others, for the purpose of analyzing, or comparing with the main
issues of the paper. Those concepts talk about the limitations of the
exclusive right of the owner's rights. These will pave the way to understand
a picture as a whole. Somehow, some of theories put in this paper seem
to be ridiculous, but it will probably lead to the best way to move forward
towards a full scale of the topics of the paper.
is the concept of fair use put here? Sometimes, it may be necessary to
view the concept of fair use or fair dealing because these concepts exhaust
the exclusive right of the copyright owners, and users are not infringed
to the copyright law. In the uses of musical works, or in the way of public
performance of musical works the concept of fair use or fair dealing may
be brought to consider in case of no paying fee for such uses. Even though
these concepts seem likely not related to the said topic in this paper
but whenever the conflict of interest occurring, the court,(5) and even the WTO Panel (6)have always raised this issue
to be considered.
in eighteenth-century terms, the concept of exclusive rights meant 'property'
for property meant the right to exclude.(7)The author
has economic expectations appropriately deriving from what society offered
him or her in the copyright scheme. Similarly, society does not intend
that the "exclusive right" language shall bar "appropriate
use" of his or her work by others in the furtherance of progress
of knowledge and the arts.(8) In common law system,
the court will focus on the point of "normal expectation", namely,
the court will probably decide whether the author's expectation of economic
reward was or was not appropriate, and such a determination ought to coincide
with a simultaneous judgment about whether society's expectation of denial
of access was or was not appropriate. (9)
If so, how do we weight for the "appropriate use"? or what is
the "normal expectation" of the author?.
term of the "exclusive right", the concept in the United States
fall into two groups: (1) copying rights (reproduction in copies, preparation
of derivative works, and distribution of copies to the public); and (2)
public performance and display rights. A copyright owner may separately
grant authority for different exclusive rights. For example, a musical
or dramatic work copyright owner may sell copies without authorizing public
right is an economic right, commercial right and industrial right(11) which is not different from the eighteenth century concept.
relationship between copyright and economy has bong been regarded as obvious
in many countries.(12) However, the rights of copyright
owners are the economic right. Economic right is the right to reproduce,
adapt, distribute and communicate on works for sales.(13) In general, a copyright, or other intellectual property rights, is a monopoly.
A monopoly is in general detrimental to the public interest.(14) However, the said exclusive right should be exclusive that has been said
in Berne and TRIPS, but those rights would be limited for the interests
of public. Like in U.S.A., the exclusive right to use the intellectual
property right must be consistent with the purpose of the antitrust laws,
or competition laws in European Countries. From these concepts are finally,
taking a long time, developed by courts to be called 'fair use or fair
concept of Fair Use or Fair Dealing in many countries are difference not
very much because most of countries are the members of a Convention.
Fair Use in Conventions
Convention (15) recognizes that in certain circumstances,
governments will need to legislate for exceptions to the exclusive rights
of copyright owners. Article 9(2) of the Berne Convention reads:
"It shall be a matter for legislation in the countries of the Union
to permit the reproduction of such works in certain special cases, provided
that such reproduction does not conflict with a normal exploitation of
the work and does not unreasonably prejudice the legitimate interests
of the author."
TRIPS Agreement(16) also recognizes the same elements. Article 13 of the TRIPS read:
"Member shall confine limitations or exceptions to the exclusive
rights to certain special cases which do not conflict with a normal exploitation
of the work and do not unreasonably prejudice the legitimate interests
of the right holder."
Three Step Test
to the conventions mentioned above, there is a standard test which has
become known as the 'three step test.'
The three step test provides that exceptions to copyrights can only be
justified if they:
1 Apply only in certain special cases.
2 Not conflict with the normal exploitation of the work; and
3 Not unreasonably prejudice the legitimate interests of the author.
If we will analyze step by step, it would be as follows;
Step 1: Confinement to special cases
In certain special cases must be interpreted in narrow scope.(17) The 'first step' is interpreted to require a clear-cut definition of the
exception, a narrow scope, and an exceptional objective. This does not
mean that the exception has to follow a legitimate public policy objective.
The test is looking for the character of the use and the portion of uses
covered. When examining if the scope of an exception is narrow, both the
actual and potential impact has to be taken into account. (18)
Step 2: No conflict
with the normal exploitation of the work
In the meaning of not conflict with the normal exploitation of the work,
it must not be of considerable or practical importance or economically
compete with the author's interests.(19) Exploitation
of a work means the activity by which the right holder employs the exclusive
rights to extract economic value from their rights. What is 'normal' shall
be determined by looking at the usual and typical ways employed on the
market with an additional 'dynamic element'.(20) What
is mean the 'dynamic element'. If we look at the WTO Panel's decision,(21) the dynamic element would be the ways of exploitation of the copyright
work. In the said dispute, the dynamic element of music work is the significant
or tangible revenue.
Step 3: No unreasonable
prejudice to the legitimate interest of the right holder
In the meaning of not unreasonably prejudice the legitimate interests
of the author, it must be focused on both moral and economic rights of
the author.(22) The 'legitimate interest' of a right
holder is arguably not only difficult to define but also hard to distinguish
from the 'normal exploitation' criterion. Moreover, the difficult question
is to assess the threshold of what makes a prejudice to such interest
unreasonable. The legitimate interests are not necessarily limited to
economic issues. Relevant factors of high impact of the interest of the
right holder include the context in which the content appears, the extent
to which it is exposed to piracy threats, and the intensity of its use
as a consequence of the exception. The interest in question is not limited
to the interest of right holders in the country initiating proceedings.
That interest must take the interest of right holders in all territories
into account. (23)
a nutshell, the Three Step provides that limitations and exceptions of
the exclusive right. The Three Step Test originates in the Berne Convention
and has found its way not only into TRIPS, but also into the WIPO Treaties
and is discussed in the context of the Draft EU Copyright Directive. (24)
Fair Dealing in
the United Kingdom
Kretschmer, The Failure of Property Rules in Collective Administration:
Rethingking Copyright Societies as Regulatory Instruments, European Intellectual
Property Review, Sweet & Maxwell, 2002 at 5 (Westlaw).
(5)Twentieth Century v. Aiken, 422 U.S. 151 (1975)
(6)Bettina C. Goldmann, Victory for Songwriters in WTO
Music-Royalties Dispute Between U.S. and EU-Background of the Conflict
Over the Extension of copyright Homestyle Exemption, IIC International
Review of Industrial Property and Copyright Law, Max Planck Institute
for Foreign and International Patent, Copyright and Competition Law, Munich,
Germany, Volume 32 No.4/2001 at 412-429.
(7)Jane C. Ginsburg, Can Copyright Become User-Friendly?
Review: Jessica Litman, Digital copyright (2001), The Clumbia Journal
of Law & the Arts, vol. 25 No.1 Fall 2001 at 75.
(8)Leon E. Seltzer, Exemptions and Fair Use in Copyright
the Exclusive Rights Tensions in the 1976 Copyright Act, Harvard University
Press, Cambridge, Massachusetts and London, England 1979 at 29.
(9)Id. at 30.
(10)Donald S. Chisum, Michael A. Jacobs, Understanding
Intellectual Property Law, Matthew Bender, 1992 at 4 -117.
(11)Terence Prime, European Intellectual Property Law,
Dartmouth Publishing, 2000 at 11.
(12)Salah Basalamah, Compulsory Licensing for Translation:
An Instrument of Development?, IDEA The Journal of Law and Technology,
Vol. 40, No.4, 2000 at 503.
(13)J.A.L. Sterling, Intellectual Property Rights in
Sound Recordings, Film & Video, London, Sweet and Maxwell,1992.
(14)Yoel Tsur, Compulsory Licensing in the Israel Patents
Law, IIC International Review of Industrial Property and Copyright Law,
Max Planck Institute, Volume 16 (1985) at 541.
Berne Convention for the Protection of Literary and Artistic Works 1886.
Thailand joined in 1931.
(16)The Agreement on Trade-Related Aspects of Intellectual
Property Rights 1994. Thailand joins as a member of the World Trade Organization.
(17)Caroline Morgan, Fair Use:Experience in Australia,
sheet distributed in the Seminar on "Fair Use and Collective Management
for Reprographic Copying", organized by the Department of Intellectual
Property. 31 July 2002 at the Arnoma Hotel Bangkok, Thailand.
(18)Ute Decker, The Three Step Test International Standards
for Limitations in Copyright Guidelines issued by a WTO Dispute Settlement
Decision, Copyright World, February 2001 issue 107, Informa Professional,
2001 at 26.
(19)See Id, supra note 17.
(20)See Decker, supra note 18, at 26.
(21)Music-Royalties Dispute Between U.S. and EU, decided
by WTO's Panel, the complete report of the Panel published on August 22,
(22)See Id, supra note 17.
(23)See Decker, supra note 18, at 26-27.
(24)See Decker, supra note 18, at 25.