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Private Use on Musical Works, Rights of Public

Performance, and Collecting Society Systems.

By' Judge Visit Sripibool

Copyright 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.

Fair Use

Why 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.

Basically, 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?.

In 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 performance. (10)

Obviously, exclusive right is an economic right, commercial right and industrial right(11) which is not different from the eighteenth century concept.

The 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 dealing.'

The 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

Berne 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

According 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)

In 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

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(4)Martin 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.

(15)The 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, 2000.
(22)See Id, supra note 17.
(23)See Decker, supra note 18, at 26-27.
(24)See Decker, supra note 18, at 25.


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