The legal right in literary, dramatic, musical and artistic property.
II. Copyright collecting societies: operation and history
IV. Former British-administered territories
VI. European mainland, Ireland and Scandinavia
VII. Asia, Israel, South Africa
PETER KLEINER, E.P. SKONE JAMES/GAVIN McFARLANE (I, III–IV); GAVIN McFARLANE (II, VI–IX); MELVILLE B. NIMMER/GAVIN McFARLANE (V)
Copyright law is at once domestic and international. In each country protection is governed by local law which affects everyone who seeks to publish, perform or broadcast a work in that country, wherever he or she is from. (Masculine pronouns alone are used from here on.) A composer whose work is used in different countries will find that the details of protection in them will not be the same. Yet his work is treated in almost every foreign country in exactly the same way as that of composers who are local citizens, or whose works were first published in the country concerned.
This arises from the structure of the international copyright conventions, whose chief effect is not to require each country to give specific protection to literary, dramatic, musical and artistic works, but to give to such works, created by nationals of any member country, or first published in any member country, the same protection as is afforded to works created by nationals of the country in which protection is sought, or first published there. (There are detailed provisions for simultaneous, or nearly simultaneous, publication in several countries.) The conventions also specify various basic principles of protection, which give the copyright law of all countries certain similarities. But within these principles there is much variation, and when problems arise one should always consult a lawyer specializing in the law of the country concerned.
The earliest of the important international conventions was that concluded at Berne in 1886, which gives its name to the Berne Copyright Union. The Berne Convention was revised at Paris in 1896, at Berlin in 1908, at Rome in 1928, at Brussels in 1948, at Stockholm in 1967 and at Paris in 1971. The situation is complicated by the fact that some states have not acceded to the later revisions but have remained bound by one of the earlier versions. Thus one state may have its relations with some countries governed by one of the revisions and with others by another. The short interval between the last two revisions was due to the controversy over the special provisions made for developing countries.
The matter is further complicated by the different ways in which states implement the conventions. In some countries, treaties (the conventions are, in effect, treaties with numerous parties) are automatically part of the local law, and are interpreted by the courts. In such countries one will frequently find references in the national copyright statute to the protection given by the treaties. In other countries – Britain is one – copyright treaties are not part of the local law, but they are put into effect by local statutes and orders.
One of the fundamental principles of the Berne Copyright Union is that no formalities of any kind are required for protection within it. The legislation of a member of the union may not require, as a condition of protecting works first published in another member country or written by a national of such country, that a copy should be deposited with a national library, or that a notice reserving copyright should be printed on every copy, and so on.
Another principle of the Berne Union is that the period of protection for works such as musical works should extend for 50 years from the death of the author.
The other international convention of major importance is the Universal Copyright Convention, also called the UNESCO Convention, concluded at Geneva in 1952 and revised at Paris in 1971. Many countries are members of both the Berne Union and the Universal Convention, but a number of South American and other states are members only of the Universal Convention.
The requirements of this convention are less strict than those of the Berne Union. For example, protection need only last for 25 years, counting from the death of the author, or – in the case of countries which do not calculate the copyright term from the author's death – from the date of publication. A formality may be required, namely the placing of the symbol © in a reasonably prominent place on each copy, accompanied by the year of first publication and the name of the copyright owner.
The international copyright conventions, particularly the Berne Convention, have introduced broad consistency into what would otherwise be a patchwork of domestic copyright legislation in different countries. This is particularly true now that the USA has joined the Berne Union. More recently, the European Union has introduced common principles which its member states are required to adopt, in particular the extension of the term of copyright to a post-mortem period of 70 years.
There are also a number of conventions affecting the North and South American countries in their mutual relations. Apart from the conventions, there are innumerable bilateral treaties between pairs of countries, most but not all of which have lost their importance as a result of the multilateral conventions.
A list of countries in copyright relations with Britain is given in §III, 5 below, and this will indicate the scope of the conventions.
The legal provisions described above, and also below as they pertain to specific areas, give rise to certain economic rights which are enjoyed by the owner of the copyright. In music the most important are the rights of public performance, broadcasting and diffusion, known as the ‘performing right’, and the right to reproduce musical works on sound carriers such as discs and tapes, which is the part of the reproduction right known as the ‘mechanical right’.
When these rights are once established, the problem of collecting in respect of them arises. It is almost always impossible for a composer or publisher to hope to recover royalties on more than a very small number of the performances on which they are due. With popular music, in particular, it is quite impossible to know when and where a certain tune has been played. If it is very successful, a popular tune may be played many times on hundreds of coin-operated machines all over the world, and broadcast several times each day to an audience of millions. It may be performed live by groups on stage in large municipal concert halls, or in a small public hall in a remote village. Even if the right-owner could locate a few of the performances, he would be unlikely to have the means or the expertise to negotiate appropriate royalties and issue licences. Collection for performances overseas would be out of the question.
The music user would also be seriously embarrassed if he had to negotiate individually with each right-owner for each separate work. This would be bad enough for the small music user who would have no idea where to locate the right-owners, but far worse for such institutions as broadcasting organizations, which would have no means of protecting themselves against unintentional infringement of copyright. It is an immense advantage to music users to have a central body which can be approached for licences and which will clear the rights automatically with each individual right-owner, not only in their own country, but also in virtually every other country in the world. The system offers a blanket licence to the music user who would otherwise be put to considerable administrative expense in acquiring these rights, and would also have to pay the individual right-owners in respect of each use.
Societies have therefore been set up all over the world to collect royalties for the use of copyright music and to distribute the revenue among the persons entitled to it. The earliest true society, the Société des Auteurs et Compositeurs Dramatiques, set up in France in 1829, collected on behalf of all dramatic writers, both literary authors and composers of music for operas and ballets. These rights in dramatic performance became known as the grands droits in music, as distinct from the petits droits, non-dramatic rights of public performance, which were left unprotected.
The situation is now very different, but the distinction between dramatic and non-dramatic music is still of great importance. In many countries, even today, no collecting society exists in respect of grands droits, since dramatic performances can be staged only in a limited number of places, and can be traced comparatively simply. In Great Britain royalties for such performances are collected by publishers and agents. But it is much more difficult to collect in respect of the petits droits, or ‘small rights’, in music, and it is in administering these rights that the collecting societies have been most successful. The first society to do so was again French, the Société des Auteurs, Compositeurs et Editeurs de Musique (SACEM), founded in 1851. It was not until 1914 that similar organizations were set up in Great Britain and the USA.
Collection in respect of the mechanical right does not present so many problems. In many countries the rate of royalty is statutory, and therefore does not require negotiation. Moreover the licensees, which are generally substantial companies manufacturing records, are easier to contact than the innumerable establishments where performances of music may be given. Nevertheless it is very convenient for smaller publishers and other copyright owners to use a central collecting system, particularly as the record-manufacturing industry has become more fragmented. Collecting societies also greatly simplify the payment of royalties arising overseas. There are international associations of collecting societies in respect of both performing rights and mechanical rights; these are the Confédération Internationale de Sociétés d’Auteurs et Compositeurs (CISAC), founded in 1928, and the Bureau International de l’Edition Mécanique (BIEM). The societies in each country are affiliated through these associations, and there are reciprocal accounting systems.
In some countries the national mechanical and performing right societies have now been brought under the same administration – though not in Great Britain, where the first mechanical right society, the Mechanical-Copyright Protection Society, was set up in 1910, some four years before the Performing Right Society. Generally the mechanical right was not recognized so early as the performing right in the laws of the first countries to adopt copyright systems.
Collecting societies also operate in a third area in the music industry: the administration of public performances of sound recordings. A separate performing and broadcasting right in a sound recording is not so widely established internationally as the performing right in musical works and the mechanical right. It was first recognized in Great Britain in 1934, as the result of a court decision, and is now set out in the Copyright, Designs and Patents Act 1988; collections in respect of it in Britain are made by Phonographic Performance Ltd (PPL). But the right does not exist in the USA; and it has not achieved universal acceptance. Nevertheless it is of considerable economic importance in those countries where it has passed into the law; and it is recognized internationally by the Rome Convention of 1961.
The members of the two international organizations of collecting societies, CISAC for performing right organizations and BIEM for mechanical right societies, are linked by international contracts of affiliation, whereby each society collects on its own territory for the works of its own members and the members of each other society with which it is affiliated. By the same contract each national society is empowered to grant licences on its own territory in respect of the repertories of each society with which it is affiliated, so that the society is able to offer its licensees access to a worldwide range of copyright music.
A licensee in London or New York thus has available virtually the whole catalogue of music likely to be needed, both classical and popular. There are certain geographical areas where states do not subscribe to the international copyright system or where no collecting societies exist, but, as they lie outside the system, they are not entitled to collect outside their own territory, and so the licensee in London and New York, having once paid a royalty, is free from any danger of remote foreign unaffiliated societies attempting to exact an additional fee.
Information on specific copyright collecting societies will be found in the discussions of individual countries and regions.
3. Works in which copyright can subsist.
5. Nationality and place of publication.
16. Copyright collecting societies.
Copyright, §III: Great Britain
Before 1640 there was no legislation in England to protect the rights of authors or publishers in their works: the only law regulating printing was intended to repress undesirable political or religious views, or to make a profit for the Crown by granting licences for printing. In 1640 an ordinance was enacted to prohibit the printing or importing of books without the consent of the owner, and similar provisions were repeated in 1643, 1647, 1649, 1652 and 1662. In 1679 this protection lapsed, and for the next 30 years by-laws of the Stationers' Company provided protection for its members.
In 1709 the first true copyright act was passed. This gave copyright to books and music, if recorded in the register of the Stationers' Company, for a period of up to 28 years. In 1814 the period of copyright was changed to 28 years or the life of the author, whichever was the longer. In 1833 and 1842 the performing rights in dramatic and musical works were protected for the first time. In 1842 the period of copyright was extended to 42 years from publication, or the life of the author and seven years thereafter, whichever was the longer. The penalty for unauthorized performances was £2 irrespective of the circumstances, and a man named Wall gained considerable notoriety by purchasing performing rights and enforcing the payment of this penalty from innocent infringers. As a result acts were passed in 1882 and 1888 making the right of public performance conditional on a notice of reservation being printed in every copy and giving the court discretion as to the penalty. In 1902 and 1906 summary penalties against infringers of musical copyright were enacted. In 1911 the term of copyright was altered to the modern one (the life of the author and 50 years thereafter) to conform with the international conventions. At the same time all formalities were abolished. The Stationers' Company register remained open for entries, as it still does, but registration is no longer necessary for copyright protection. The law continues to require a copy of the best edition of every published book (including sheet music) to be delivered to the British Library, and a copy of the largest edition to be made available to the Bodleian Library at Oxford, the University Library at Cambridge, the National Library of Scotland, the Library of Trinity College, Dublin, and (except for certain small editions) the National Library of Wales. But the penalty for non-compliance is a fine of £5 plus the value of the book, and copyright is not affected.
The statute law of copyright in Britain is contained almost entirely in the Copyright, Designs and Patents Act of 1988, which has 306 sections and eight schedules. It repeals all existing copyright statutes except certain provisions of the Copyright Act of 1911 not directly concerned with copyright. However, as with many other branches of the law, many details, and indeed some general principles, cannot be found in the acts of parliament but only in decisions of the courts. It is inevitable that if the law is to be fair it shall be complicated. This article describes the basic principles of copyright law, with special reference to musical works, but it is not possible to set out every exception and qualification to which general rules are subject. Legal advice should always be sought in cases of difficulty. Particular care should be taken in cases involving a foreign element or works written before 1 June 1957, when the Copyright Act of 1956 came into force. This act contains special provisions where the work is anonymous or pseudonymous or is of joint authorship. A joint work is one written in collaboration where the contributions of each author cannot be separately identified.
Copyright, §III: Great Britain
The law of copyright protects certain kinds of works by making it unlawful to do certain acts in relation to those works without the permission of the owner of the copyright. The most obvious example is the copying of a book or musical work by reprinting it, but there are many others.
It is fundamental to the law of copyright that it is works and not ideas which are protected, protection being given to the form in which the idea is expressed and not to the idea itself. Thus an idea which has not yet become a work – for example, an idea for a tune not yet recorded or written down – is not protected. Nor are traditional airs which were seldom written down or recorded, until recently at all events. It is possible to make use of another's ideas without falling foul of the law of copyright, although it might be a breach of confidence. The taking of ideas is not often applicable to music, where it is difficult to distinguish between the idea, which is not protected, and the form in which it is expressed, which is. But this can be of great importance in literature, where the plot or idea of an author's work may be taken without taking the words used and therefore without infringing copyright.
Another general principle of great importance is that copyright restrains copying. Unlike a patent, it does not give any monopoly. Thus if A wishes to prevent B from selling or performing a musical work which A alleges is a breach of his copyright, he must prove not only that B's work is similar to A's, but also that it was in fact derived from A's. If B's work, though identical with A's work, was independently produced, B's work will not be an infringement.
Under British copyright law protection is automatically given to the work from the moment of its creation (or in some cases publication). No registration or formality of any kind is necessary. It is requisite only that the work shall (a) be of a class which is capable of protection (see §3 below), (b) have been created by a person of appropriate domicile, residence or nationality, or first published in an appropriate country (see §5 below), (c) in the case of a literary, dramatic, musical or artistic work, be original in the sense explained in §4 below.
Copyright, §III: Great Britain
Copyright can subsist in the following classes of work: (a) literary works, (b) dramatic works, (c) musical works, (d) artistic works, (e) sound recordings, (f) films, (g) television and sound broadcasts, (h) published editions.
The expression ‘literary work’ has a very wide meaning: it includes anything from a full-length novel to a news item in a newspaper, and also compilations such as a telephone directory or list of horses or a newspaper itself. On the other hand it does not include such things as titles of books and advertising slogans, because they are too insubstantial or trivial.
A ‘dramatic work’ is defined as including a choreographic work or entertainment in dumb show, provided it is written down.
A ‘musical work’ is not defined in the 1956 act. The 1988 act defines it as ‘a work consisting of music exclusive of any words or action intended to be sung, spoken or performed with the music’. The 1902 act defined it as ‘any combination of melody and harmony, or either of them, printed, reduced to writing, or otherwise graphically produced or reproduced’. Modern methods of recording and reproduction have made the word ‘graphically’ inappropriate; and there is probably copyright in a tune which, before being written down, is played, sung or hummed into a tape recorder. But a tune which is hummed or played by its composer and is not recorded in any permanent form is probably not protected by the law of copyright.
‘Artistic work’ is widely defined and includes paintings, sculptures, drawings, engravings, photographs, works of architecture and ‘works of artistic craftsmanship’.
‘Sound recording’ means a recording of sound from which the sound may be reproduced, regardless of the medium on which the recording is made or the method by which the sounds are produced or reproduced. It is important to appreciate that a disc or tape may involve more than one copyright. A recording of a song may involve three quite separate copyrights: those of the lyric of the song as a ‘literary work’, the music to which the words are sung and the accompaniment played as a ‘musical work’, and the disc itself as a ‘sound recording’. ‘Sound recording’ does not include the soundtrack of a film, which is included in the next category.
A ‘film’ includes the sequence of visual images and the associated soundtrack. It is a recording on any medium from which a moving image may be produced by any means. As with sound recordings, there is one copyright in the film as such and separate copyrights in each of the works on which it is based, such as the script, music and so on.
A television or sound broadcast has a separate copyright from that in the book, play, music or film which is being broadcast.
The copyright in a ‘published edition’ is granted to protect a publisher who spends money on setting up a literary work in print, or on preparing a new manuscript of a musical work for publication. By a copyright quite separate from that in the literary or musical work concerned, the publisher can prevent anyone from making a photographic reproduction of the work and thus obtaining for nothing the benefit of his expenditure. This copyright is of particular importance where the work is not itself protected by copyright, for example because the author died more than 50 years previously.
Copyright, §III: Great Britain
Under the Copyright, Designs and Patents Act of 1988 one of the conditions for subsistence of copyright in literary, dramatic, musical and artistic works is that they should be ‘original’. The meaning of the word is not defined in the act, but its meaning has become well established from cases in the courts. What is required is not a creative gift of a high order but that some time, skill and labour shall have been spent by the author in creating the work, and that it derives from him. The fact that the work is based on earlier work of another is not a bar to copyright in the derived work, provided that some new work has been done. There is no copyright in a mere copy of a musical work, but there certainly is in a new arrangement or adaptation of an earlier piece of music: a common example is a piano-vocal score of an opera. However, if a substantial part of the earlier work is used, the new work may be an infringement of the old work.
A difficult question, not yet finally answered, is whether the first person to write down the tune of a traditional air obtains copyright in it. The courts will have to decide whether the skill and labour required to write down a tune from ear in musical notation are sufficient to satisfy the test.
The requirement of originality does not apply to the derivative subjects of copyright, that is, sound recordings, films and broadcasts. Copyright in published editions applies to any edition which does not reproduce the typographical arrangement of a previous edition.
Copyright, §III: Great Britain
The provisions governing the qualifications of a national character which a work or its author must have before it is protected in British law must now be explained.
Primarily, the 1988 act applies to literary, dramatic, musical and artistic works which, if unpublished, were made by a ‘qualified person’. If they are published, copyright is given in the following three cases: (a) the author was a qualified person at the time of first publication (not at the time of creation of the work), (b) the author was a qualified person just before his death, and has died before publication, (c) the work was first published in Great Britain or another relevant country.
The definition of a qualified person is, in the case of an individual, a British subject or protected person or a citizen of the Republic of Ireland or a person who is domiciled or resident in Great Britain or another relevant country. In the case of a ‘legal person’ such as a company, it must be incorporated under the law of Great Britain or another relevant country to count as a qualified person. If, as is usually the case, the making of a work extended over a period, it is sufficient if the person concerned was a qualified person for a substantial part of that period.
In the case of sound recordings and films the maker must have been a qualified person at the time when the recording or film was made (or, in the case of a film, for a substantial part of that time), or, if it has been published, it must have been first published in Great Britain or another relevant country. These conditions are not relevant to broadcasts, as the first owner must be the BBC or the Independent Broadcasting Authority (IBA). Thus there is no copyright in ‘pirate’ broadcasts. In the case of a published edition, the publisher must have been a qualified person at the date of publication, or the publication must have taken place in Great Britain or another relevant country.
A relevant country is a country whose copyright law is basically the 1988 act or a previous British copyright act. This includes the Isle of Man, the Channel Islands and British colonies and dependencies.
In accordance with the international conventions described in §I, Great Britain has made arrangements for domicile, residence, incorporation or publication in many foreign countries to have the same effect for the purposes of protection in Britain as domicile, residence, incorporation or publication in Britain itself. A list of the countries concerned is given below, but it must be borne in mind that protection for different countries has started at different dates, and there are many detailed exceptions and qualifications which cannot be set out here. There is difficulty in determining whether copyright exists in Britain in works first published in the countries marked ¶ before certain dates (for instance before 27 September 1957 in the USA). The copyright in sound recordings originating in countries other than those marked * does not include the exclusive right to cause to be heard in public and to broadcast. There is no protection in Britain for sound broadcasts except those originating in the countries marked †, or for television broadcasts except those originating in the countries marked ‡.¶Algeria; ¶Andorra; Argentina; *Australia; former and current Australian territories (Papua New Guinea, Nauru and Norfolk Island); *†‡Austria; ‡Belgium; Benin; *†‡Brazil; Bulgaria; ¶Cambodia; Cameroon; Canada; Chad; Chile; †‡Congo (People's Republic); *†‡¶Costa Rica; Côte d'Ivoire; Cuba; *‡Cyprus; *†‡Czech Republic; *†‡Denmark; *†‡¶Ecuador; *†‡Fiji; Finland; ‡France; French territories overseas; Gabon; *†‡Germany, Federal Republic¶Ghana; Greece; ¶Guatemala; ¶Haiti; Hungary; Iceland; *India; *Ireland, Republic of; *Israel; *Italy; ¶Kenya; Japan; ¶Laos; Lebanon; ¶Liberia; Liechtenstein; LuxembourgMadagascar; ¶Malawi; Mali; Malta; Mauritania; ¶Mauritius; *†‡Mexico; Monaco; Morocco; Netherlands (and Suriname and Netherlands Antilles); *New Zealand; ¶Nicaragua; †‡Niger; *¶Nigeria; *‡Norway; *Pakistan; ¶Panama; *†‡¶Paraguay; ¶Peru; Philippines; Poland; Portugal (including Portuguese provinces overseas); RomaniaSenegal; *†‡Slovakia; South Africa (and South West Africa); *‡Spain; Spanish colonies; *Sri Lanka; *†‡Sweden; *Switzerland; Thailand; Tunisia; Turkey; ¶former USSR; ¶USA (and Guam, Panama Canal Zone, Puerto Rico and the Virgin Islands of the United States of America); Uruguay; Vatican City; ¶Venezuela; former Yugoslavia; Zaire; ¶Zambia
Copyright, §III: Great Britain
Copyright is a form of property which can be bought and sold like any other. It comes into existence as soon as the book is written, the picture drawn, and so on; and there are rules to show who is the first owner. A manuscript and the copyright in that manuscript are separate items of property. The copyright may be divided so that one person owns the performing right, and another the publishing and reproduction right. It may be further divided so that one person owns, for example, the right to publish in sheet form in western Europe, another the right to reproduce by recording (usually called the mechanical right) in Australia otherwise than as part of a film soundtrack, another the right to reproduce in the whole world as part of a film soundtrack (usually called the synchronization right), and so on. Finally, the copyright may be further divided by a time limitation, such as the right to publish in sheet music form in England for three years. At the moment of creation one person usually owns all the rights, but that person may deal with the rights before the work comes into being.
Subject to certain exceptions, the first owner of the copyright in a literary, dramatic, musical or artistic work is the author. This means the person who conceives the form in which the work is produced. Thus if A suggests a plot to B, who writes a novel based upon it, B, not A, is the author. If B, instead of writing or typing himself, dictates his novel to C, who writes it down word for word, it is still B, not C, who is the author. If two or more persons working together produce a piece of music and their contributions can be distinguished, each is the author of his own contribution. If the contributions cannot be distinguished they are joint authors of the whole. In the case of a photograph, the owner of the negative (or other substance on which the original image is recorded) when the photograph is taken is the ‘author’.
Where a literary, dramatic, musical or artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work, subject to any agreement to the contrary.
When a work is made by an author in the course of his employment under a contract of service, the copyright belongs to the employer and not to the employee. For this rule to apply the contract must be one of service. This is the technical description of the relationship between employer and employee. It is not always easy to distinguish this from other contractual relationships, but generally anyone remunerated by a salary rather than individual fees for specific pieces of work is an employee, especially if he is subject to detailed control over the manner of his work. A person who is not an employee retains the copyright in any work produced by him even though he is paid for his work by another. A common instance of this is architects' plans. This would also apply to work produced out of working hours or outside the scope of employment by someone who is an employee.
The first owner of the copyright in a sound recording is the owner of the tape or other material on which the sound is first recorded, unless the recording was commissioned and paid for – or agreed to be paid for – by another, in which case that other person is the first owner, unless agreed to the contrary.
The first owner of the copyright in a film is the person by whom the arrangements necessary for the making of the film are undertaken: that is, normally, the film company since the word ‘person’ includes a company.
The first owner of the copyright in a television or sound broadcast is the BBC or the IBA, as the case may be.
The first owner of the copyright in a published edition is the publisher.
Copyright, §III: Great Britain
The person who is the first owner of the copyright in a piece of music, for instance, is identified in accordance with the rules explained above. For the work to be exploited the owner of the copyright must permit publishers to reproduce and publish the work, concert promoters, dance hall proprietors and many others to perform it in public, record companies and film producers to reproduce it and perform it in public, broadcasting organizations to broadcast it and so on.
There are two basic ways of dealing with copyright: assignment and licence. By an assignment the owner actually transfers ownership to another. He need not assign the whole of the copyright: it can be subdivided by place, class of act or time. For example, an assignment may relate to the right to reproduce and publish a piece of music in sheet form in Great Britain for a period of ten years from a certain date. A contract may be made whereby a composer assigns certain parts of the copyright in return for a lump sum payment. It may also be provided that the composer is to receive royalties or a share of profits, but this carries a certain risk because the copyright may be assigned once more to a third owner, and the composer may find if the royalties cease to be paid that he has no effective remedy against anyone. He cannot recover the copyright, having parted with it outright.
If a composer is to be remunerated by periodical payments such as royalties on sales or performances, it is advisable that he should grant only a licence, that is, permission to do certain acts – for example, to print and publish in sheet music form in Great Britain for ten years – while retaining the ownership of the copyright himself. The owner usually has the right to determine a licence if there is any breach of the agreement by the person to whom it has been granted. A licence may be exclusive, that is, granted on terms which prevent the owner from granting a licence of the same rights to anyone else, or non-exclusive.
An assignment and an exclusive licence must be in writing and signed by the copyright owner or his agent. Both an assignment and an exclusive licence have the advantage that the person to whom they are granted can himself start proceedings to stop infringement. A non-exclusive licence, which need not be in writing (and indeed may not even be oral, but can be inferred from conduct, for example the sending of a letter to a newspaper), gives no right to stop the copyright owner granting similar licences to anyone else, nor does it give the right to sue for infringements of the copyright.
In some instances it is not practicable for an individual copyright owner to license every individual use of a work. For example, the owner of the copyright in a popular piece of music cannot know of everyone who wishes to perform it in a public place. Nor is it convenient for him to have to deal with all would-be licensees. To deal with these situations there are organizations of composers and other copyright owners which license persons wishing to perform or make other use of copyright works on behalf of numerous copyright owners, sharing the fees between them and suing for infringements. The special regulation of the fees charged and licences granted by these societies is dealt with in §13 below.
Copyright, §III: Great Britain
Until 1996 the historic period of copyright protection in Great Britain as laid down by successive copyright statutes was the life of the author of the work and 50 years thereafter. On 1 January 1996 the Duration of Copyright and Rights in Performances Regulations of 1995 came into force implementing the provisions of EU Directive 93/98. This provides that in respect of EU nationals, copyright protection for literary, dramatic, musical and artistic works is for the life of the author and 70 years thereafter. It is of critical importance that if a work enjoyed copyright protection in any of the 15 member states of the union on 1 July 1995, then copyright protection will revive in any other member state in which it has lapsed. The question is of considerable practical significance, because Germany has had an extended period of copyright protection since the 1960s; Spain and France also had longer periods than Great Britain before 1996.
These alterations do not affect the works of persons who are not nationals of an EU member state. Nor does a revival affect any rights that may have been acquired when the work was in the public domain, or any acts done in respect of the work during that period.
In the case of joint authorship, the post-mortem period starts at the end of the year in which the surviving author dies. The period of protection for broadcasts and cable programmes is 50 years from making, and for sound recordings, 50 years from manufacture. A special copyright for typefaces runs for 25 years from first publication. This reiterates the distinction between ‘true copyright’ in literary, dramatic, musical and artistic works, and a lesser protection for what some regard as non-intellectual manufactured products.
Copyright, §III: Great Britain
The nature and extent of the restricted acts vary according to the class of copyright work. In this section an account is given of the restricted acts applicable to each class; those applicable to musical works are considered in more detail. It is important, however, to bear in mind two points. First, it is just as much an infringement to authorize another person to do a restricted act as it is to do the act oneself. Second, it is only necessary to be an infringement that the act is done in relation to a substantial part of the whole work. Substantiality depends upon the quality rather than the quantity of what is used.
The acts restricted by the copyright in a work are (a) copying the work; (b) issuing copies of the work to the public; (c) performing, showing or playing the work in public; (d) broadcasting the work or including it in a cable programme service; and (e) making an adaptation of the work or doing any of the acts in (a) to (d) above in relation to an adaptation. An adaptation in the case of a musical work is an arrangement or transcription of the work. For artistic works the restricted acts are: (a) reproducing the work in any material form, (b) publishing the work, (c) including the work in a television broadcast and (d) causing a television programme which includes the work to be transmitted to subscribers to a diffusion service.
Copying is the most fundamental of the restricted acts. It includes such acts as writing the music in manuscript on a piece of paper, or photocopying, duplicating or printing copies; and also making a ‘sound copy’ of the work. This may be done, for instance, by recording a live performance, by re-recording an existing recording on to tape or disc, or by recording the work on the soundtrack of a film. If the result is to create a material form of the work, then the making of that form is copying. Even though such changes are made as to make the new work a copyright work in its own right (for example, a piano-vocal score of an opera), the copyright in the original is still infringed if the permission of the owner of the copyright in the original has not been obtained. The test of infringement is as much aural as visual.
Publication is the issue of reproductions of the work to the public. It is not necessary that any payment should be made for this to be an infringement.
Public performance is one of the most important rights for the composer of musical works. Performance takes place when the music is heard, whether it emanates from a live performance, a tape recorder, a jukebox, a television or radio receiver or a film projector. A public performance is one which is not domestic. It includes performances at clubs and background music in factories and offices. British law does not distinguish between the classes of performing rights known as grands droits, that is, dramatic performance such as the presentation of an opera on the stage, and petits droits, such as background music in restaurants. But the difference between these is of great significance for practical purposes, as will be explained in §13 below.
Broadcasting is the act of sending out the radio waves containing the music. This is a separate restricted act from public performance, although if an audience is present in the studio a public performance is occurring at the same time and, as we have seen, a public performance takes place whenever the programme is received by a set in the presence of a non-domestic audience.
Diffusion is the process of distributing broadcast programmes over wires. This applies, for instance, both to the relay networks in large towns which diffuse the broadcasts of the BBC and the IBA, and to local cable systems. In the case of broadcasts by the BBC and the IBA the diffuser will not be liable for infringement.
In the case of sound recordings there are three restricted acts. The first is re-recording on to another recording (for example, dubbing a disc on to a tape) and this applies whether the re-recording is done directly or from a broadcast including the disc. The second is causing it to be heard in public. This does not apply if what is played is a broadcast including the recording. It is not an infringement to play it as part of the activities of, or for the benefit of, a club, society or other organization if the following conditions are met: (a) the organization is not established or conducted for profit and its main objects are charitable or otherwise concerned with advancement of religion, education or social welfare; and (b) the proceeds of any charge for admission to the place where the recording is heard are applied solely for the purposes of the organization. The third restricted act is to broadcast a sound recording. The 1988 act provides that there can be no infringement of the copyright in a sound recording which has been published in Great Britain unless at the time of publication the recording or sleeve bore some indication of the year of first publication.
In the case of films, the restricted acts are making a copy of the film, showing it (or playing the soundtrack) in public, broadcasting it and diffusing it. A person who shows a film in public on a television set because it is broadcast by the BBC or IBA, or who diffuses a film which is broadcast by the BBC or IBA, is not liable for infringement.
The copyright in a television broadcast is infringed by making a film copy of it for other than private purposes (including making a photograph of the whole or any substantial part of the images), by making a recording of the sound part other than for private purposes, showing it or playing the sound part in public to a paying audience (which includes a special room in a public house where drinks are more expensive because of the television set) and by rebroadcasting it.
In the case of a sound broadcast the restricted acts are making a recording for other than private purposes, and rebroadcasting it.
The only restricted act in the case of a published edition of a work is the making of a reproduction of the typographical arrangement of the edition by photographic or similar means.
The fact that different restricted acts apply for the various classes of copyright works means that when something contains more than one copyright work, complicated situations may arise. For example a film may involve the copyrights of A in the film, B in the music of a disc played on the soundtrack, C in the disc, D in the script, and so on. To show the film in public the licences of A, B, C and D would be required, but to show it in a holiday camp, for instance, only the licences of A, B and D, as the right to cause a sound recording to be heard in public does not include the exclusive right to do this in a place where people reside and sleep as part of the amenities provided for residents or inmates, and therefore C's permission is not required. Some of these licences may be obtained through the organizations referred to in §13 below.
Copyright, §III: Great Britain
The basic form of infringement of copyright is to do one of the restricted acts set out above without the consent of the owner of the copyright, and in certain cases of an exclusive licensee. This is subject to certain exceptions and defences, set out in §12 below. The person liable to be sued for an infringement is the person committing it. In the case of an infringement by reproduction the person holding the pen or operating the printing press or photocopying machine is liable. If the reproduction is by making a recording, the person operating the recording apparatus will be the infringer. In the case of a public performance, the person actually playing the music, or switching on the gramophone, is liable.
To prevent evasion, the law makes persons other than the immediate operator liable in certain instances. There is a general provision that a person authorizing an infringement is as much liable as the person actually committing it. Thus the person who hands the score to the photocopier operator and the employer of the recording technician are liable as well as the operator or technician himself.
Where a person engages an orchestra or a singer to perform at a function, and in the course of the performance infringements are committed, whether the person who engaged the orchestra or singer is liable for authorizing an infringement is a difficult question, the answer to which depends on the facts of each case, particularly the extent to which such a person had control over the choice of music.
There are provisions whereby certain matters will be presumed: for example subsistence and ownership of copyright are presumed unless put in issue.
Certain other acts, ancillary to the restricted acts, are also infringements of copyright. These concern the importation (other than for private and domestic use), sale, letting for hire, offering or exposing for sale or hire for commercial purposes of infringing articles, exhibiting such articles in public for commercial purposes, and the distribution of such articles for commercial purposes (or for other than commercial purposes but to so large an extent that the owner of the copyright is prejudiced). However, these infringements require proof of knowledge by the offender of certain facts relating to the making of the article. Proof of knowledge is not necessary in the case of committing or authorizing restricted acts (the limitations on this principle are explained in §12 below).
In the case of a literary, dramatic or musical work it is also an infringement to permit a place of public entertainment (which includes a place occasionally let for public entertainment, such as a church hall) to be used for a public performance which is an infringement. If the person permitting made no profit out of the letting, or did not know, and had no reasonable grounds for suspecting, that the performance was an infringement, he is not liable. This kind of infringement cannot be committed with relation to artistic works, films, recordings or broadcasts.
These are not in themselves restricted acts, and therefore it is only the person committing them, and not any person authorizing him, who is liable. It is, however, a general principle of the law that an employer is liable for the acts of an employee, and if this relationship exists the employer is liable (authorization is a wider concept, and there is no need for an employer-employee relationship).
A special provision governs liability for giving public performances of literary, dramatic and musical works, and causing films, recordings and broadcasts to be seen or heard in public, by means of a radio or television receiver, record player (including a jukebox) or tape recorder. The occupier of the premises where this happens is liable even if he is not the person operating the apparatus.
Copyright, §III: Great Britain
The remedies for infringements of copyright fall into two categories: those designed to prevent the occurrence, continuance or repetition of the infringement, and those designed to give financial compensation for infringements which have already occurred.
To prevent an infringement from occurring, continuing or being repeated, an application is made for an injunction, that is, an order of the court prohibiting the infringement. As it is difficult to put an exact figure on the loss suffered by a copyright owner as the result of an infringement, injunctions are frequently sought and granted in copyright cases. An injunction is often applied for as soon as the infringement, or the possibility of it, comes to the notice of the copyright owner. If the owner can demonstrate that he has a good chance of showing, when a trial is eventually held, that his copyright has been infringed, and that he will suffer more damage if the infringement is not temporarily stopped than the alleged infringer will suffer if it is, a temporary injunction, lasting until the trial, will be granted. The person obtaining the temporary injunction will be liable to compensate the alleged infringer for being stopped if it turns out that he was not infringing. An injunction of this kind can be obtained in a few weeks, or, if the matter is particularly urgent, in a few days or hours.
Under the 1988 act it is possible for someone enjoying performing or recording rights to obtain an order for delivery up of an illicit recording of a performance which another person has in his possession, custody or control in the course of a business. An illicit recording of a performance, found exposed for sale or hire in circumstances under which a person having performing or recording rights would be able to obtain an order for delivery up, may in certain circumstances be seized and detained.
Often the parties settle their differences after the question of whether a temporary injunction should be granted has been fought out. But if the matter proceeds to a full trial, and it is found that infringement has taken place, a permanent injunction to restrain it may be granted. If an injunction of either kind is broken the court may punish the offender by imprisonment or a fine or, if the case is not a serious one, by ordering him to pay all the costs of the contempt proceedings.
A plaintiff whose copyright has been infringed is entitled to be financially compensated. Damages are calculated under two heads. First, the plaintiff is entitled to be paid as infringement damages the equivalent of the licence fee he would have charged if he had granted a licence to do the act which was done without a licence. Second, the law treats the owner of the copyright as being the owner of any infringing copy of his work – for example, sheet music copies or recordings made without his permission – so that he is entitled to claim damages for conversion in the same way as if those actual articles had belonged to him and had been disposed of without his permission; this entitles him to be paid the value of the articles. Where only part of the articles is infringing, for example one track on a recording, a proportion will be calculated. The law also entitles him alternatively to claim damages on the conversion basis, and to call for the articles, if they are still under the defendant's control, to be delivered up to him or destroyed. As an alternative to claiming damages, the plaintiff may seek to be paid all the profits which the defendant has made out of the unauthorized use of the work. The court in assessing infringement damages also has power to order additional damages to be paid if, on taking into account the flagrancy of the infringement and any benefit which the defendant has had from the infringement, as well as all the other circumstances, it considers that the plaintiff will not otherwise be adequately compensated.
An order can be made for the delivery or destruction of a film, or payment of its value, only if it is an infringement of the copyright in another film, not a literary, dramatic, musical or artistic work. No injunction can be granted to prevent a building whose construction has been started from being completed, or to have it demolished.
It is a criminal offence to make for sale or hire, or sell or let for hire, or by way of trade to offer or expose for sale or hire, or by way of trade exhibit in public, or to import into Great Britain (other than for private and domestic purposes) or to distribute for purposes of trade or for other purposes but to such an extent as to prejudice the copyright owner, a recording which the person involved knows to be an illicit recording. A person guilty of offences under these provisions is liable on summary conviction by a magistrates’ court to imprisonment for up to six months or a fine. In certain circumstances a person may be liable to conviction on indictment in the Crown Court, where there is a liability to imprisonment of up to two years, or a fine, or both. Similar penalties may apply where a person does the following acts in respect of an article which he knows or has reason to believe is an infringing copy of a copyright work. These acts are: (a) making for sale or hire; (b) importing other than for private use; (c) possessing with a view to infringing in the course of business; (d) in the course of business selling or letting for sale or hire, exhibiting in public or distributing.
Another remedy available to the owner of the copyright in a literary, dramatic or musical work is that on notice being given to the Customs and Excise in specified form the Customs will confiscate printed copies brought into Great Britain by any person (except for private and domestic use) which would have been infringements had they been printed in Britain. The Commissioners of Customs and Excise may require a person giving such notice to provide them with security in respect of any liability or expense which they may incur in consequence of the notice because of the detention of any article or anything done to a detained article. This requirement of security is very unusual, as the commissioners have wide powers to seize goods the importation of which is restricted or prohibited.
Copyright, §III: Great Britain
The Copyright, Designs and Patents Act of 1988 provides a number of defences and exceptions from infringement where a person is alleged to have infringed copyright. One important defence whereby a person may to some extent avoid liability is by showing that he was ignorant of the facts which made what he has done an infringement.
Two situations must be distinguished. The first is where a person can show that he did not know, and had no reasonable grounds for suspecting, that copyright subsisted in the work infringed. This is very rare, as the general law – which everyone is presumed to know – gives copyright in virtually every work. However, if the defendant genuinely thought that the author had been dead over 70 years, or that the work had first been published in a country which has no copyright relations with Britain, then he will be able to make out this defence. He is not then liable to pay any damages, but he must still pay over to the plaintiff the profits he has made out of the infringement, and may still be ordered not to repeat the infringement and to deliver up infringing copies.
The second situation is where the defendant can show that he believed, and had reasonable grounds for believing, that the infringing copies were not in fact infringing copies. This could apply if the defendant had been ordered to make the copies by someone whom he reasonably believed to be entitled to give such instructions, but who in fact was not: for instance, a printer ordered to print sheet music by a music publisher. In this case the defendant is still liable to orders for an injunction, delivery up or destruction, and damages based on what the fee for a licence would have been, but not on the basis that the infringing copies are the property of the copyright owner. On this latter basis the damages are normally heavier, so this defence is of particular value.
The exceptions apply only where a prima facie infringement is proved or admitted, and if they are established the plaintiff is not entitled to any relief. One important exception is that in certain cases a ‘fair dealing’ with a literary, dramatic, musical or artistic work is not an infringement. What is a ‘fair dealing’ in any particular case is a matter of great difficulty, but one significant consideration is whether there is competition between the two works. The amount taken is not the only test, but if it is a great deal the defence is more difficult to make out. ‘Fair dealing’ applies to literary, dramatic or musical works in cases of: (a) research or private study; (b) criticism or review (including criticism or review of another work); (c) reporting current events in a newspaper, magazine or similar periodical; and (d) reporting current events by means of broadcasting or in a film. (a) and (b) apply also to artistic works. In (b) and (c) a ‘sufficient acknowledgment’ of the source must be given – in general the name of the work and the author.
A number of special exemptions apply to copyright material used for educational purposes. In certain circumstances short passages from published literary or dramatic (not musical or artistic) works may be included in collections published for use in schools. Literary, dramatic, musical and artistic works may be freely copied by teachers and pupils in the course of instruction provided a duplicating process is not used. This allows copyright works to be written on blackboards and in exercise books (but not to be duplicated for pupils). Copies made in this way may not be distributed to the public. A performance by a teacher or pupil to an audience consisting of a class or of people directly connected with the school is not a ‘public’ performance of a literary, dramatic or musical work, nor is a sound recording, film or television broadcast seen or heard in such circumstances seen or heard ‘in public’. This exception does not extend to occasions to which parents are generally invited.
A broadcasting organization which has been licensed to broadcast a literary, dramatic or musical work, but not to record or film it, may nevertheless record or film it for the purposes of broadcasting it, provided the film is destroyed or the recording erased within 28 days after the first broadcast.
The special exceptions relating to artistic works are beyond the scope of this article.
A number of exceptions apply to works in libraries. A single copy of one item (which includes a musical item) in a magazine or other periodical publication can be made by a library of a government department, public body, educational establishment or professional institution for a person or for another library (including one abroad). If copies are made for individuals, the library may not be a profit-making one. If the copies are for another library, both the sending and the receiving libraries may be profit-making, provided they are of one of the classes mentioned above, or alternatively it may be any library which lends material to the public free of charge. The same provisions apply to parts of publications other than periodicals, if the librarian making the copy does not know and cannot reasonably discover the identity of the person who can give permission. Only a reasonable proportion of the work may be supplied to an individual, but the whole may be supplied to another librarian. If the making of a copy is permitted by the above provisions, it is not an infringement of the copyright in the typographical arrangement of any published edition, even if the librarian knows the identity of the copyright owner.
The making for private and domestic use of a recording of a broadcast or cable programme solely for the purpose of allowing it to be viewed or listened to at a more convenient time does not infringe any copyright in the broadcast or cable programme or in any work included in it.
Copyright, §III: Great Britain
Composers of musical works often assign or license part of their copyright to a collecting society. The parts assigned or licensed are the petits droits, that is, the right to perform in public, but not as a dramatic presentation of an operatic work (which is one of the grands droits). The broadcasting and diffusing rights are often also dealt with in this way. As a result the society may have a virtual monopoly in the supply of copyright music to places of entertainment and broadcasting organizations. To prevent abuse of this situation the 1956 act set up the Performing Right Tribunal (renamed the Copyright Tribunal in the 1988 act), which is empowered to fix the rates and other conditions of licences granted by (a) bodies licensing the public performance or broadcasting of literary, dramatic or musical works of more than one author, (b) owners of the copyright in sound recordings, for causing it to be heard in public, and (c) the owners of the copyright in a television broadcast, to show it in public. Thus the jurisdiction of the tribunal extends to the Performing Right Society, because it grants licences for the public performance and broadcasting of the works of many authors, but not to agents granting licences on behalf of individual authors. However, in the case of sound recordings the jurisdiction extends to individual record companies as well as to Phonographic Performance Ltd. The tribunal fixes the rates, terms and conditions of the licence schemes which the licensing societies operate for classes of users, such as dance hall proprietors or jukebox operators. It can determine the conditions and charges when an applicant claims that he is within the terms of a licence scheme but has not been granted a licence. The tribunal also fixes the rates and conditions when there is no scheme (for example in broadcasting, because of the small number of users) and the applicant claims that he has not been granted a licence or that the charges, terms and conditions proposed for a licence are unreasonable.
In 1960 the tribunal was asked to determine the jukebox tariffs of the Performing Right Society for music and Phonographic Performance Ltd for records: in each case the tariffs were in substance confirmed. In 1965 the tribunal determined the terms and charges on which the Isle of Man Broadcasting Company could broadcast records, and in 1967 and in 1972 the tribunal determined the terms and charges on which the BBC could broadcast music.
The tribunal consists of a legally qualified chairman and two to four lay members. There is a right of appeal to the High Court on a question of law. The 1988 act extended the tribunal's jurisdiction, in particular providing for adjudication on rates as between right-owner and right-user.
Copyright, §III: Great Britain
The law of copyright generally does not protect the title of a work. That is usually considered to be too insubstantial. But an author is protected in certain respects from attempts to pretend that he is responsible for a work which is not his. The law of ‘passing off’ is employed by traders wishing to prevent rivals from using the names or marks associated with their goods, and can likewise be used by an author to prevent anyone from confusing the public as to the authorship of a work of literature, drama or music.
If the nature of the work falsely attributed to an author is such as to lead members of the public to think less of his skill or taste he may also have remedies in the law of libel or malicious falsehood.
Under the 1988 act the author of a copyright work has the right to be identified as such, but the right must be specifically asserted. Similarly the author has the right not to have his work subjected to derogatory treatment in the form of addition to, deletion from, alteration to or adaptation of the work. There is no specific protection against false attribution of authorship.
Copyright, §III: Great Britain
For many years the principle applied to performers such as actors, singers and variety artists was to exclude them from copyright protection, leaving them to make arrangements for compensation entirely through contract. If they had not protected themselves by contract (and, given the weakness of their bargaining position, it was unlikely that in many cases they had done so), their remedies were to try to initiate criminal proceedings. There were obvious practical difficulties, and the criminal sanctions were rarely used. However, the 1988 act introduced rights of performance. The consent of performers to the exploitation of their works is now necessary.
A performance means a dramatic performance, including dance or mime, a musical performance, a reading or recitation of a literary work, or a performance of a variety act or any similar presentation. A performer's rights are infringed by recording the performance, broadcasting it live, showing or playing it in public, and also by importation. These rights are not assignable, although they may be transmitted by will. An infringement of any of the rights of a performer is actionable as a breach of statutory duty. The 1988 act provides for criminal offences in respect of illicit recordings.
The same penalty is applicable to the offence of broadcasting or diffusing a live performance without the written consent of the performers. It is also an offence to relay the performance over wires even to a single receiving set if that set causes the performance to be heard or seen in public.
In the case of a recording, film, broadcast, diffusion or relay made without consent it is a defence that the recording film, broadcast, diffusion or relay was made for the purpose of reporting current events, or that the recording, film, broadcast, diffusion or relay was of another matter and the performance was only background or incidental.
It is also a defence that the person responsible for the recording, film, broadcast, diffusion or relay had the written consent of a person who said he was authorized by the performers to give such consent on their behalf, and that the person responsible had no reasonable grounds for believing that the person saying this was not telling the truth. It is an offence (maximum fine £400) to give consent on behalf of performers when one is not in fact authorized to give such consent.
Copyright, §III: Great Britain
A performing right in musical works was introduced into the law of Great Britain as early as 1842, but it was not until 1914 that the Performing Right Society was set up in London, although similar organizations had already come into being in several countries including France, Italy and Spain. Indeed the French society had employed an agent since about 1880 to collect royalties in Great Britain for performances of music under its control. Copyright law in Britain was extremely piecemeal before 1911, its various provisions being contained in a large number of different statutes, several of which were rather obscure. This may have helped to prevent British copyright owners from enforcing their rights effectively, for in 1911 a greatly improved Copyright Act was passed which stated the position in a single clear code, and shortly after it reached the statute book British composers and music publishers began to consider setting up a collecting society.
Accordingly the Performing Right Society was registered in 1914 as a company limited by guarantee and without share capital. There is no entrance fee or commission, and all royalties collected by the society are distributed among the members according to the success of their works, after the deduction of administration costs. There are 24 directors, of whom 12 are music publishers and 12 composers and authors; they are not remunerated for their services.
Unfortunately the society began its operations just at the outbreak of World War I, and this set back the expansion of the organization. The society had to fight several court actions for infringement during the first two decades in order to establish its rights, but after that the composers’ entitlement was widely recognized by music users, and PRS had come to represent virtually all the composers and publishers of copyright music in public demand.
On joining the society, a member vests in PRS the control of the public performing right in his works. This enables the society to grant permission on behalf of the member for the public performance, broadcasting and diffusion of his works, and to collect royalties for the issue of licences granting this permission. The society is concerned only with non-dramatic musical works, and not with ballets, operas, musical plays and other dramatico-musical works performed in their entirety by living persons on stage, nor with non-musical plays or sketches.
The society’s licence covers not only the works of its own members, but by virtue of the contracts of affiliation it also includes a worldwide repertory of the works of members of foreign societies. The licence provides music users with a general permission to avail themselves of any of the works under the society’s control. PRS operates direct in Great Britain and Ireland, and through agencies in some of those Commonwealth countries where there is no independent society. By the contracts of affiliation with foreign societies, payment for the performance of works of PRS members is collected abroad.
Licences are granted for an annual royalty to the proprietors of premises at which music is publicly performed, or to promoters of musical entertainments not covered by a licence issued to the proprietors of premises. Sometimes a licence is issued for the use of the society’s repertory at a single performance or a short series of performances. Generally the terms of a licence are fixed by agreement with a body representing the music users to whom a particular tariff is to apply, but a music user or his representative may refer any tariff that he considers unreasonable to the Copyright Tribunal. This is now established under the Copyright, Designs and Patents Act 1988 to resolve disputes between licensing bodies and any music user requiring a licence from them. It replaces the former Performing Right Tribunal, which had been set up in 1956. A number of the society’s current tariffs have been approved by the tribunal, including those relating to commercial dance halls, variety entertainments, popular concerts, bingo clubs and jukeboxes.
Over 100,000 places of entertainment in the British Isles are covered by the society’s licence, and these include theatres, concert halls, cinemas, hotels, restaurants, discothèques, shops, cafés, piers, holiday camps, caravan parks, bandstands, clubs, dance halls, schools of dancing, skating rinks, town halls, church and village halls, public houses, factories, bingo halls, aircraft, cruise ships, amusement arcades and fairgrounds. The broadcasting organizations are also licensed for their sound and television broadcasts. The society’s licence for both live performances and broadcasts stipulates that regular returns of the music to be performed are to be made by the licensee. It is on the basis of these returns and the length and nature of each work performed that the royalties collected by the society are shared out among the members and affiliated foreign societies. The society has established rules binding on all members for the division of royalties between the composers, authors and publishers concerned. The normal basis of division for an original work is two-thirds to the writers and one-third to the publisher. These divisions may by agreement be varied within certain limits, the publisher’s share not to exceed 50%. The rules also require the publisher to pay the writers’ shares directly to the composer and author concerned, and such royalties thus become the writers’ property unaffected by their contracts with publishers.
The society’s licence is required for any public performance of the copyright music it controls, regardless of the object of the entertainment or the nature of the premises, and irrespective of whether a charge for admission is made. It is immaterial whether the performance is given by live performers, or by such means as a radio, television, gramophone, sound film or tape recorder. The society is a member of CISAC.
In several countries a mechanical rights society was formed before a performing rights society, and this happened in Great Britain. There had been no mechanical right in that country before the Copyright Act was passed in 1911, but a Parliamentary Committee on Copyright in 1910 recommended that it should be introduced, and in anticipation of the new right the Mechanical Copyright Licences Company Ltd was founded in the same year. Shortly afterwards a similar organization, the Copyright Protection Society Ltd, was founded, and in 1924 the two bodies were amalgamated to form the present Mechanical-Copyright Protection Society Ltd.
The only source of revenue in the early days was the income from gramophone recordings, but in the period before World War II new receipts began to flow in from sound films and from radio broadcasting; and they increased rapidly in the postwar years, particularly after the rise of television. Members do not assign their relevant rights to the society, as they do with the PRS. Instead the society collects its members’ entitlement to recording royalties as their agent only. The former statutory licence has been abolished. In its stead a scheme has been introduced under which licences are made available for record companies to manufacture and distribute records. The rate is now 8·5% of the published dealer price, and was fixed by the Copyright Tribunal in its decision on a reference made to it in 1991. Thus the income of the society is largely linked to the sales of the gramophone industry, and its income has increased as record manufacturers have succeeded as a result of technical improvements and for other reasons. MCPS is now a member of BIEM and also of CISAC.
While MCPS and PRS remain separate societies in terms of income, constitution, membership and guardianship of certain rights, on 1 January 1998 the MCPS-PRS Alliance was formed for corporate identity purposes, and as a unified operational force. It is served by a jointly owned operating company into which the assets have been transferred, with a combined staff and a single chief executive.
In 1934 in a British case of supreme importance to the record industry it was decided that the Copyright Act 1911 did not, as had been widely supposed, merely protect manufacturers against their records being copied by rival manufacturers, but also gave them a performing right in the record. Thus people giving public performances of music by means of recordings must obtain a licence not only from the owner of the copyright in the music (generally through PRS), but also from the record manufacturer (through PPL). Shortly after this decision PPL was incorporated in 1934 to exercise the right; it is a company limited by guarantee without share capital, and was founded by the leading British record manufacturers in order to control the public use of their recordings and to issue licences for that purpose. All revenue accruing from licence royalties is distributed among the recording companies, and the recording artists and musicians. There are similar organizations exercising the record manufacturers’ right in Australia, Germany, India, New Zealand and Scandinavia.
Generally the former British colonies tended to follow the mother country in copyright matters when they became independent, but as Great Britain has followed EU principles a divergence has sprung up within the Commonwealth.
In Australia the Copyright Act of 1968 provided for a post-mortem term of protection of 50 years. By the Copyright Amendment Act of 1986, protection for computer programs was introduced. New Zealand copyright law closely follows that of Australia.
The Australasian Performing Right Association (APRA) was founded in 1926; it controls in both Australia and New Zealand, as well as in Fiji, Papua New Guinea and certain other territories in the region, the performing rights in its members’ musical works. The head office and administrative centre of the organization is in Sydney. Because of the vast size of the territories controlled and the sparseness of population, complete control of the use of its repertory has often proved difficult, and consequently the administrative cost of collecting the royalties has sometimes been rather high. APRA is a member of CISAC.
Mechanical rights in Australasia are administered by AMCOS (Australian Mechanical Copyright Owners Society Limited). This society is owned by the Australian Music Publishers’ Association Limited. It covers musical works, library sound recordings and mechanical royalties from small labels for its publisher members.
Canada’s original copyright law dates from 1921; the latest amendments were in 1995 and 1996. Canadian legislation provided for a register which was not compulsory, but which established prima facie evidence of the facts registered. Canada was a pioneer in the establishment of a Copyright Tribunal, setting an example which was eventually followed in Great Britain; it conducts regular reviews of the charges made by authors' societies.
The Société Canadienne des Auteurs, Compositeurs et Editeurs de Musique (SOCAN), an internationally affiliated society known also as the Society of Composers, Authors and Music Publishers of Canada, administers the performing right in the works assigned to it. It was formed in 1990 when the two previous Canadian performing right societies, CAPAC and PROCAN, merged their operations. SOCAN is a member of CISAC.
Mechanical reproduction and synchronization rights are administered by the Canadian Music Reproduction Rights Agency (CMRRA) and the Société de Droits de Reproduction des Auteurs et Compositeurs (SODRAC), both of which are members of CISAC and BIEM.
Canada was a pioneer in establishing a body with a supervisory jurisdiction over copyright collection. The original title of the Canadian collecting society was the Canadian Performing Right Society, and it was incorporated in 1925. In 1931 the Canadian government introduced a system whereby any society carrying on in Canada the business of acquiring copyrights or performing rights of dramatico-musical or musical works and concerned with issuing or granting licences for their performance in Canada must file an annual statement of its fees for the coming year. The Copyright Appeal Board set up under this system considers objections to the proposed fees, alters the statements as it thinks fit, and transmits the statements to the minister, who publishes them in the Canada Gazette, and they are then binding for the coming year. The Copyright Committee which recommended the setting up of the Performing Right Tribunal in Great Britain considered with approval the operations of the Copyright Appeal Board of Canada.
Newly established local collecting societies that have been set up in former British-administered territories are listed together at the end of this section.
The Copyright Act of 1961 provided more limited protection than that of Great Britain. Indeed Ghana was at one time a prominent advocate of the rights of copyright-user countries in the emerging Third World, against what it perceived as exploitation by the copyright-owning countries in the developed world.
Hong Kong returned to control by the People's Republic of China in 1997. While it remained a colony of the United Kingdom, the copyright legislation of Great Britain was extended to Hong Kong by Order in Council.
The Copyright Act of 1957 has its roots firmly in the law of Great Britain. It followed the British Copyright Act of 1957 very closely, but it also established a register of copyright. However, registration is not a precondition for the existence of copyright, and there is no formality for protection. The 1957 act was amended in 1983 to allow India to adhere to the revised Berne and Universal Copyright Conventions. It was amended again in 1984 to deal with the problems caused by film and recording piracy.
A Copyright Act was introduced in 1969, following independence. This replaced previous colonial legislation which had applied in the various states. The current copyright law dates from 1987. Malaysia does not adhere to any of the international copyright conventions.
The Copyright Act of 1987 replaced the various provisions previously in force, some dating from colonial times. It established a modern Copyright Tribunal, and Singapore has taken significant steps to combat piracy.
The following collecting societies are all members of CISAC.
Copyright Society of Ghana (COSGA)
Composers’ and Authors’ Society of Hong Kong (CASH)
Indian Performing Right Society Limited (IPRS)
Music Copyright Society of Kenya (MCSK)
Copyright Society of Malawi (COSOMA)
Music Authors’ Copyright Protection (MACP)
Mauritius Society of Authors (MASA)
Music Copyright Society (Nigeria) Limited (MCSN)
Composers’ and Authors’ Society of Singapore Limited (COMPASS)
Sri Lanka Performing Right Society (SLPRS)
Copyright Organisation of Trinidad and Tobago (COTT)
Zambia Music Copyright Protection Society (ZAMCOPS)
zimbabwe Music Rights Association (ZIMRA)
The PRS has accredited agents in the Bahamas, Barbados, Bermuda, Cyprus, Dominica, Gibraltar, Jamaica and Malta.
1. The requirement of originality.
2. Nature of musical works protected.
4. Works protected by United States copyright law.
6. The rights of the copyright owner of a musical work.
7. Rights in sound recordings.
9. Copyright Royalty Tribunal.
10. Assignments and other transfers of rights.
14. Copyright collecting societies.
Copyright, §V: United States of America
Only works which are ‘original’ may be the subject of copyright protection. A work is original if it owes its origin to the author, that is, is independently created and not copied from other works. Thus a work may be lacking in ‘novelty’ in that it may not be the first of its kind and yet be regarded as ‘original’ and therefore protectable as long as the author did not copy from any prior work. As Judge Learned Hand put it: ‘if by some magic a man who had never known it were to compose anew Keats's “Ode on a Grecian Urn”, he would be an “author”, and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats'. Moreover, a very modest degree of originality will suffice to support a copyright. Thus, even if most of a given work is not original, if the author's work constitutes a ‘distinguishable variation’ due to his own independent efforts, this in itself will warrant copyright protection. However, such protection will attach only to the independently created matter, and not to the matter copied from others. Moreover, if the matter copied from others is itself protected by copyright then the copier may himself be an infringer even though he may claim copyright in the material which he has himself independently contributed. As long as a work is original, it will command copyright protection regardless of its artistic or creative merit. Justice Oliver Wendell Holmes long ago made the point:
It would be a dangerous undertaking for persons trained only to the law to constitute themselves judges of the worth of pictorial illustrations [or, one may add, musical compositions] outside of the narrowest and most obvious limits. At one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke … At the other end, copyright would be denied to [works] which appealed to a public less educated than the judge.
Copyright, §V: United States of America
The United States Copyright Act allows both ‘musical compositions’ and ‘dramatico-musical compositions’ to be protected. Since the nature of the protection accorded to these two forms of musical works varies somewhat, it is important to distinguish between them. A dramatico-musical composition consists of a dramatic work accompanied by musical compositions which form an integral part of the dramatic action. Operas and operettas constitute the paradigm form of dramatico-musical composition, but modern American musicals, such as those by Rodgers and Hammerstein or Lerner and Loewe, also qualify in this regard. Since 15 February 1972 musicians as well as composers have been able to claim some measure of copyright protection. This is because all sound recordings first made after this date may be subject to copyright protection. The copyright in sound recordings applies only to the actual sounds contained in them as distinct from the underlying musical compositions. Therefore a sound recording copyright protects the contributions of the musicians, singers and record producers rather than the composers' underlying contributions, which must find protection under the more traditional categories of musical composition and dramatico-musical composition.
Copyright, §V: United States of America
The problems formerly posed by common law copyright in the USA no longer exist.
Copyright, §V: United States of America
A person who is the author can claim protection for these classes of works: (a) literary works, which now include computer programs in American law; (b) musical works, including any accompanying lyrics; (c) dramatic works, including any accompanying music; (d) pantomimes and choreographic works; (e) pictorial, graphic and sculptural works; (f) films and other audiovisual works; this category has been extended by the North American Free Trade Agreement; (g) sound recordings, which does not include a right to public performance; (h) architectural works, which embraces the design of a building as embodied in any tangible expression of that design, such as a building or architectural plans or drawings.
Copyright, §V: United States of America
Since 1 July 1982 the previous stringent manufacturing requirements have ceased to have effect.
On all occasions when a work protected under American copyright law is published in the USA or elsewhere with the authorization of the copyright owner, a notice of copyright should be placed on all copies distributed to the public. This should comprise (a) either the symbol © or the word ‘copyright’ or the abbreviation ‘copr.’, with (b) the year of first publication of the work and (c) the name of the copyright owner. Under the amendments to United States copyright law brought about by American ratification of the Berne Convention, protection is now afforded both to American works and to works of foreign origin which were first published in the USA after 1 March 1989 without having a notice of copyright attached to them. The advantage of attaching the claim to copyright is that it allows a right-owner to bring an infringement action. In any case, authors should always put copyright notices on their works as this is a considerable deterrent to plagiarism. If no copyright notice is present, it is likely that any award of damages made by a court will be lower.
Within three months of publication the owner of the copyright or the exclusive right of publication of a work published with notice of copyright in the USA should deposit in the Copyright Office two complete copies of the best edition of the work, or if a sound recording two copies of that recording. This deposit is for the benefit of the Library of Congress, although it is no longer mandatory.
Registration of copyright in the USA is no longer mandatory. But the owner of any copyright work first published outside the USA may register a work by making application to the Copyright Office with the appropriate fee, and by depositing one complete copy of the work. Copies deposited with the Library of Congress may be used for this purpose. Although registration is no longer necessary for foreign works from Berne Copyright Union countries, it is still advisable. In the event of any litigation there would still be considerable advantages if the work were registered. The USA interprets the Berne Convention as permitting formalities which are not in themselves conditions for securing copyright protection, but which lead to improved protection.
Previously the provisions of United States copyright law on the subject of performance in public were not so favourable to copyright owners as those obtaining in Great Britain. For example, before 1976 a performance of a musical work was an infringement only if it was for profit. The formidable American coin-operated record-playing machine industry, otherwise known as the jukebox lobby, had managed to secure an exemption for jukeboxes from being classified as vehicles of profit, so their owners were not at that time obliged to pay royalties for making use of musical works in copyright.
Under the new legislation one of the exclusive rights of the copyright owner is to perform a work publicly, without any question of profit. This applies equally to literary, dramatic, musical and choreographic works, as well as to pantomimes, films and other audiovisual works. However, under §114 of the new United States copyright statute, the exclusive rights of the owner of copyright in a sound recording are stated in terms that do not include any element of public performance.
Jukeboxes are now covered by §116A of the statute, which was passed on 31 October 1988. It deals with negotiated licences, and limits exclusive rights in the absence of a negotiated licence. These extensions to the American right of public performance should benefit the incomes of authors, composers and publishers of musical works who enjoy significant performance of their works in the USA.
In situations where sound recordings of a non-musical work have been made available to the public in the USA with the authority of the copyright owner, by process of law any other person may obtain a compulsory licence to make and distribute sound recordings of that work. This is the right which in Great Britain used to be known as the mechanical right. The appropriate notice must be served on the owner of copyright. He is entitled to a royalty for each of his recorded works of either 2·75¢ in total or 0·5¢ per minute of playing time, or fraction thereof, whichever amount is the greater. A failure to file or serve the appropriate notice forfeits the chance to obtain a compulsory licence. In the absence of a compulsory licence, to make or distribute records in these circumstances constitutes an actionable infringement of copyright.
Copyright, §V: United States of America
The rights of the copyright owner of a musical work include the exclusive right to copy, print, vend, publish, arrange or adapt it, publicly perform it for profit and record it. Of these, the most significant rights are to copy, perform and record.
A copyright owner is granted the exclusive right to make copies of his work. With musical works this applies mainly to printing sheet music. But it also includes such other forms of copying as reproducing lyrics unaccompanied by musical notes, and music as a part of the soundtrack of a film. Apart from soundtracks, however, the right to copy does not include the right to prohibit the making of sound recordings of a musical work. Such protection must be afforded under the right to record. The making of copies constitutes an infringement even if they are not made for commercial purposes.
Under both common law copyright and statutory copyright the authors of a musical work have an exclusive right to prohibit the recording of their work. However, under statutory copyright, once the copyright owner of a musical work consents to its recording, a ‘compulsory licence’ is imposed upon the work. This means that anyone other than the first person to make such a recording may also make a recording of the same work provided he pays to the copyright owner 2¢ for each recording which he manufactures based upon the work. For the copyright owner to be entitled to receive this royalty, he must first file a notice of use with the Copyright Office. Then if the person making the recording fails to pay the statutory royalty of 2¢ per record, he may upon court order be required to pay a total royalty of up to 8¢ per record. There is some dispute in the courts whether one who pays his 2¢ per record royalty may not only record anew the musical composition in question but may also simply reproduce the sounds of the first authorized recording. Clearly to do the latter would infringe the statutory copyright in the sound recording itself (if the original recording were first made on or after 15 February 1972) and might infringe the common law copyright in the recording (if it were first made before 15 February 1972). The question is whether such conduct would also infringe the copyright in the musical composition as distinct from that in the sound recording.
An unauthorized performance of a copyright work does not automatically constitute copyright infringement. The copyright owner has the right to control only public performances of his work. Moreover, with respect to musical compositions (unlike dramatic works), the copyright owner may only control public performances of his work for profit. Thus a private performance or a public performance not given for profit will be immune from the control of a copyright owner.
A performance is public if it is open to members of the public generally. They need not be assembled in order to hear the performance. Thus it has been held that a radio broadcast of a musical work constitutes a public performance even though no members of the public are within the radio studio at the time of the broadcast, and the people who hear it over the radio do so in their individual homes rather than in an assembled group.
A performance is ‘for profit’, even if no charge is made for admission to it, so long as the performers directly or indirectly reap some remuneration from it. Thus a musical performance in a restaurant was held to be for profit, even though the patrons paid no additional sum for it. As Justice Holmes said of such a case,
the defendants' performances are not eleemosynary. They are part of the total for which the public pays, and the fact that the price of the whole is attributed to a particular item which those present are expected to order is not important. It is true that the music is not the sole object, but neither is the food, which probably could be got cheaper elsewhere. The object is repast in surroundings that to people having limited powers of conversation or disliking the rival noise give a luxurious pleasure not to be had from eating a silent meal. If music did not pay, it would be given up. If it pays, it pays out of the public's pocket. Whether it pays or not, the purpose of employing it is profit, and that is enough.
As stated above in §II, copyright collecting societies, or performing rights societies, control only petits droits, or non-dramatic performing rights, as distinct from grands droits, or dramatic performing rights. The latter concern the performance of a musical composition as part of a dramatic presentation. An operatic performance is, of course, a dramatic or grand performance. But so is the presentation of a musical work as a part of a film where the musical performance furthers the action in the story. The authorization for a grand or dramatic performance must be obtained directly from the copyright owner, since such rights are not available from the performing rights societies.
The distinction between a musical composition and a dramatico-musical composition is relevant here, since the copyright owner of a musical composition may prohibit only public performances of his work for profit, while the copyright owner of a dramatico-musical composition may prohibit any public performances of his work whether for profit or not.
Copyright, §V: United States of America
The copyright in a sound recording (the sound of the performers as distinct from the music being performed) is more limited than the rights accorded to a musical composition. The right of reproduction, which is the primary right granted in a sound recording, prohibits only the duplication of the actual sounds in the recording and does not protect against imitation or simulation of such sounds.
Copyright, §V: United States of America
A fundamental change in United States copyright law was effected by the Copyright Act of 1976. The term of copyright for a work created on or after 1 January 1978 now lasts for the author's life and 50 years thereafter. Thus American law has been brought into line with that of other advanced countries, particularly as further amendments in 1988 allowed the USA to ratify the high-standard Berne Convention. However, the EU has moved ahead of the USA with a post-mortem period of 70 years.
Any copyright whose first term under the previous law was still subsisting on 1 January 1978 now lasts for 28 years from the date when it was originally secured. The copyright owner or his representative may apply for a further term of 47 years within a year before the original term expires. The duration of any copyright, the renewal term of which was subsisting at any time between 31 December 1976 and 31 December 1977, or for which renewal registration was made between those dates, is extended for 75 years from the date when copyright was originally secured.
Copyright, §V: United States of America
The Copyright Act of 1976 established a Copyright Royalty Tribunal, charged with setting reasonable rates of copyright in connection with the exercise of rights, particularly those in the music field. Its sphere of operation is akin to that of the Copyright Tribunal in Great Britain. The American tribunal seeks to achieve several economic objectives: (a) to maximize the public availability of creative works; (b) to give the copyright owner a fair return for his creative work and a fair income in the light of prevailing economic conditions; (c) to reflect the relative roles of the copyright owner and the copyright user in the product made available to the public, having regard to relative creative contribution, technological contribution, capital investment, cost, risk and contribution to the opening of new markets for creative expression and media for their communication; (d) to minimize any disruptive impact on the structure of the industries involved and on generally prevailing industry practices. A decision of the tribunal may be appealed to the United States Court of Appeal within 30 days.
Copyright, §V: United States of America
Copyright may be sold or made the subject of a gift or otherwise assigned. It may also be inherited either by will or by intestacy. An assignment must be in writing and signed by the copyright owner. Compliance with the relevant statute of wills (usually requiring documentation and witnesses) must be observed in order to transfer copyright by will.
Copyright, §V: United States of America
In order to prevail in an infringement action the copyright owner must prove that the defendant has copied his work. If the defendant's work is similar to that of the copyright owner's, but if such similarity is due to coincidental independent creation by the defendant, then no infringement action will lie. But how can the plaintiff prove that the defendant has copied from him? The courts have held that the plaintiff need only prove two elements in order for the court to infer the fact of copying. These are access and substantial similarity. Access generally means the opportunity to copy. That is, the plaintiff's work must have been available to the defendant so that the defendant could physically copy the plaintiff's work if he were inclined to do so. Substantial similarity requires showing that the two works, the copyright owner's and the defendant's, are largely the same. Infringement occurs even if the two works are not absolutely and completely identical. On the other hand, if the only similarity between the two works is that of the abstract idea upon which both are based, then no infringement action would lie even if a defendant copied the idea from the plaintiff. Ideas as such are not subject to copyright protection. (Neither is the title of a work unrelated to the work itself.) Every work is capable of being expressed in various degrees of abstraction. The most abstract level of expression cannot be protected. The most specific level (word-for-word copying) can obviously be protected. Somewhere between the most abstract level and the most specific level the courts draw a line which divides permissible copying of ideas from impermissible copying of what is called the ‘expression’ of ideas. Even when the similarity is verbatim, if it is sufficiently insubstantial in quantity and sufficiently unimportant in quality, it may be copied under what is sometimes called the doctrine of ‘fair use’. In a musical context, there is a belief that up to three bars of music may be copied verbatim without constituting copyright infringement. That is not so. If the three bars are of great importance in the original work, then copying them will constitute copyright infringement. On the other hand, in certain instances it may be possible to copy more than three bars without infringing copyright if the amount copied is both quantitatively and qualitatively unimportant.
Copyright, §V: United States of America
An infringer must pay as damages to a copyright owner an amount of money equal to the actual damages suffered as a result of the infringement and the defendant's actual profits realized by reason of the infringement. In statutory infringement actions, if the plaintiff is unable to prove actual damages or profits, he then is entitled to recover statutory ‘in lieu’ damages. The minimum recoverable is $250 per infringing transaction. The maximum recoverable is $5000 per infringing transaction, but this does not apply to infringements occurring after the copyright owner has given written notice to the defendant. All copies produced at substantially the same time will probably be regarded as part of a single infringing transaction, giving rise to only one statutory minimum award. Copies produced at substantial intervals will be regarded as separate transactions each giving rise to its own statutory minimum recovery.
Where the copyright owner satisfies the court that the infringement was committed wilfully, the court has discretion to increase an award of damages to not more than $50,000. If the infringer manages to prove that he was unaware that his acts constituted an infringement of copyright, and that this was a reasonable belief on his part, the court may reduce statutory damages to not less than $100.
In all civil proceedings in copyright matters in the USA at the court's discretion, costs may be recovered in full against any party except the state. Reasonable attorneys' fees may also be recovered. A time limit of three years applies to both criminal and civil proceedings in copyright matters.
A preliminary injunction may be obtained before the trial in an infringement action if the plaintiff can show that he will probably succeed at trial. If the plaintiff does prevail at the trial he may then be entitled to a permanent injunction against further infringement of his work. Injunctions of this kind can be served anywhere in the USA on the person named in them. They can be enforced by proceedings in any American court enjoying jurisdiction.
Pending a trial a defendant may be required to deliver up for impounding by the court all articles alleged to infringe the copyright as well as the means for making such copies. Upon prevailing at trial the plaintiff may require that the defendant deliver up for destruction all infringing copies and all means for making such infringing copies.
In a statutory infringement action it is mandatory that all costs of suit be awarded to the prevailing party. Such costs do not include attorneys' fees. However, within the discretion of the court reasonable attorneys' fees may also be awarded to the prevailing party. But this is usually done only where some element of moral blame is shown – if, for example, a defendant is a deliberate infringer or a losing plaintiff has pursued the action in bad faith.
Copyright, §V: United States of America
Any person who deliberately infringes copyright for commercial advantage and private financial gain is liable to a fine not exceeding $10,000 or imprisonment for up to one year, or both. In the case of infringement of film rights the maximum fine can increase to $25,000 for a first offence and $50,000 for a second offence. The term of any prison sentence can also be increased for subsequent offences.
Following conviction for criminal infringement a court may additionally order forfeiture and destruction of all infringing copies.
To place a copyright notice on any article falsely and fraudulently attracts a fine not exceeding $2500, as does the removal of a copyright notice properly attached to any article.
Copyright, §V: United States of America
(i) American Society of Composers, Authors and Publishers (ASCAP).
(ii) Broadcast Music Inc. (BMI).
Copyright, §V, 14: USA: Copyright collecting societies
A new copyright law was passed in the USA on 19 October 1976, the first substantial revision since the basic American copyright law of 1909. Proposals to introduce a modern statute had been fiercely debated, but clashes between various interested groups had always resulted in deadlock, and special legislation was required to keep in force copyrights that would otherwise have expired.
As part of the 1998 Copyright Term Extension Act, the term of protection now provided is the life of the author plus a post-mortem period of 70 years. An amendment to this act exempts bars and restaurants from paying licensing fees for copyright music performed on radio and television on their premises. The National Licensed Beverage Association has negotiated new licence agreements covering all music usage and exempting all premises under 3500 square feet (325 square metres). The so-called Aitken Exemption in practice means that many retail outlets in the USA such as bars, shops and restaurants do not have to pay for music licences. A new type of ‘per programme’ licence also makes religious music cheaper for religious format broadcasters.
The performing right in gramophone records has been specifically excluded from the new statute; protection for sound recordings has been limited basically to unauthorized reproduction. The jukebox lobby, which was previously outside the definition of performance for profit in American copyright law, has lost its battle to be exempt from liability to royalties. Legislation of 1988 now provides for the negotiation of licences (see above, §5). If licences are not negotiated, then limitations are placed on the exclusive licence. These new measures are likely to swell the incomes of authors and composers in the USA.
Until 1897 Congress had not included in copyright law a performing right in musical works, and this delayed the development of a copyright collecting society in the USA. Only in 1914 was ASCAP founded as a voluntary unincorporated non-profit association, the same year as the Performing Right Society was founded in Britain. A performing right gave a collecting society in America enormous scope, for although the territory was large communications were good, and the population was spread much more evenly than in Australia and Canada, so that collection in the larger towns was practical. As various types of popular music spread across the country, there were countless performances in dance halls and clubs, restaurants and cafés which had previously been beyond the control of an individual right-owner but which a central collectivity such as ASCAP could effectively police. Then in the 1920s came a further enormous increase of popular music with the introduction of radio broadcasting, and within a year there were over 500 broadcasting stations in the USA. Naturally not all music users immediately accepted the claims of the new society, and ASCAP was obliged to establish its position by court action against broadcasters and such users of live music as dance halls.
ASCAP is managed by a board of 24 directors, of whom 12 are writers and 12 publishers. Three writer directors and three publisher members represent classical music, and directors hold office for two years. A two-thirds vote is necessary to carry a motion, with a quorum being 13 directors. Board candidates are selected by a writer nominating committee and a publisher nominating committee, whose members are appointed by retiring directors, and board members are not entitled to serve on these committees.
Members of ASCAP are elected by a majority of the board, and on election must assign to the society the right to license the non-dramatic public performance of their works for the period of any existing agreement between the society and its members. Members do not assign to ASCAP any part of the right in live performances of musical plays or dramatico-musical compositions, whether given in whole or in part. But they do assign vocal, instrumental and mechanical renderings of all kinds, including transmissions by radio and television broadcasting, telephony, wired diffusion systems and reproductions on film soundtracks. They assign rights in all compositions then or thereafter written, composed, published, acquired or owned by the member, whether alone, jointly or in collaboration with others. The society acquires the right to sue in the member’s name, because the previous American copyright law did not acknowledge divisibility of copyright, and any lawsuit had to be brought in the name of the copyright owner. By the new law the ownership of copyright may be transferred in part or subdivided.
Royalty distribution is controlled by the board, and is divided into two equal accounts, one for writer members, the other for publisher members. The writer directors constitute the writers’ classification committee, and the publisher members the publishers’ classification committee, each of which meets at least once a year to classify each member’s status for the purposes of receiving a share of the amount to be distributed. A dissatisfied member may protest to the appropriate classification committee, with a further right of appeal to the society’s board. Royalties are distributed quarterly after administrative expenses and payments to foreign affiliated societies have been deducted. When a member dies his rights terminate, but ASCAP may pay a share of royalty distributions to the member’s next of kin no greater than the member would have received if living. A member may not assign the rights and obligations of membership, and payment of royalties may be suspended if a member goes bankrupt or compounds with his creditors.
Radio and television broadcasting organizations may elect between two forms of licence, under either of which a licensee may perform any work in the entire ASCAP repertory. Under a ‘blanket licence’ a broadcasting organization pays a percentage of the total advertising revenue, plus a fixed sum for music used on unsponsored programmes. ‘Per programme’ licensees, on the other hand, pay a relatively higher percentage of their advertising receipts, but pay only on income from programmes making use of ASCAP music. All radio networks and most local radio stations unaffiliated with a network have blanket licences. In television, by contrast, most of the independent stations have ‘per programme’ licences. There is an elaborate system of programme analysis; the programmes of national networks are analysed in full, and credit is given for each station affiliated to the network by use of a multiplier. Programmes of stations with ‘per programme’ licences are also fully analysed, and a sample is taken of local stations by analysing ten of them in different parts of the USA. Where samples are taken, they are multiplied by formulae established by statistical research to produce the most equitable total national performance, without undertaking the formidable administrative expense of logging individually every broadcasting station in the USA.
ASCAP’s sampling system is to send tape-recording teams throughout the country to provide taped recordings of the programmes as broadcast by the stations to be analysed; these are then subject to ASCAP’s process of identification. By contrast BMI (see below, §ii) asks licensees to supply once a year a log of music used in a month designated by BMI; this is prepared by the broadcasting authority itself. ASCAP considers that it justifies the extra expense of its system because of its secrecy, which prevents the entries logged from being manipulated. Against this, BMI claims that writers and publishers cannot tell which stations are going to be analysed and that any interference from this direction is forestalled and a broader basis for analysis obtained.
Anti-monopoly law or, as it is known in the USA, anti-trust law, is highly developed in that country, and the government has intervened to use it in an attempt to promote competition concerning musical performing rights. In 1941 the US Department of Justice took action against the society under the anti-trust legislation known as the Sherman Act. As a result ASCAP submitted to a consent decree (ASCAP was not taken to have infringed any law, no evidence was taken and no judgment given on the facts) by which it undertook not to license a performance for profit of any musical work on a broadcasting network, unless the single licence fixing a single royalty permitted the simultaneous broadcasting of the performance by all stations on the network, without each station needing a separate licence.
If ASCAP and a potential licensee fail to agree on a royalty, they may apply for the assessment of a reasonable fee to the Federal Court for the Southern District of New York, which supervises the judgment against the society. Pending judgment the applicant may have access to works in the society’s repertory, while ASCAP can ask the court to fix an interim royalty. The consent decree has also established that a writer need have only one normally published work in order to become a member of ASCAP. The ‘per programme’ licence which is open to broadcasters also resulted from the decree.
An important case in 1948, Alden-Rochelle v. ASCAP (78USPQ197), also involved the society’s monopoly position, and was brought by some cinema proprietors who sought exemption from paying a performance royalty after they had obtained the right to exhibit the film from the film production company. It was held that by forbidding a member from assigning the film performing rights in music to the film production company when the recording right was assigned, the market for exhibition of the film was narrowed to those exhibitors having a licence from ASCAP for the performance of the music synchronized with the film, and that this was achieved by an unlawful combination with the film production companies. ASCAP was directed to divest itself of all film performing rights for musical works synchronized with films, and to reassign them to the owners of the musical works; the society was further restrained from acquiring the film performing rights in musical works, and from contracting with film producers to require exhibitors to obtain an ASCAP licence. This judgment has placed far-reaching restrictions on foreign composers of film music used in the USA.
The consent judgment has been amended from time to time since it was originally signed, and covers nearly every aspect of the society’s operations.
ASCAP is a member of CISAC.
Copyright, §V, 14: USA: Copyright collecting societies
A number of broadcasting organizations opposed ASCAP’s attempts to license them in the early days of radio, but ASCAP succeeded in setting up procedure for licensing them for a fixed lump sum until 1932, when the concept of a percentage of the broadcaster’s revenue was introduced. That was unwelcome to the National Association of Broadcasters, but they had to accept the society’s terms. That situation continued until 1940, when once again ASCAP sought to introduce new licence terms. This time the National Association of Broadcasters’ members decided to boycott ASCAP music by using material in the public domain which was free of copyright, and by arranging for new music to be composed for the broadcasters, which would not pass into ASCAP’s net.
ASCAP’s repertory was very extensive indeed, and at that time the society had an effective monopoly, like the collecting societies in most countries outside the USA. The broadcasters were not expected to succeed, but they set up BMI to control their operation, and the boycott of ASCAP music began. It was surprisingly successful, and as ASCAP was involved at the same time in anti-trust proceedings it was obliged to settle its dispute with the broadcasting organizations. But BMI remained, and ever since has been in competition with ASCAP, although its repertory is smaller. Its initial success was largely due to its having discovered writers and composers who were not members of ASCAP, but who produced music which the public was prepared to listen to, so that BMI was able to build up its own catalogue. The prospectus under which stock in BMI was originally offered to broadcasters stated that no dividends were to be expected from the company, and no dividends have been paid. All the revenue collected by BMI is redistributed among its composer and publisher members, less a deduction for administrative expenses and reserves. Like ASCAP, BMI is subject to a consent decree under anti-trust legislation, but this deals only with music users and does not cover BMI’s relations with its publisher and writer members. Dual membership of BMI and ASCAP is not allowed, but a member can resign from one organization and join the other. Both ASCAP and BMI are affiliated to foreign authors’ societies, and often they are affiliated to the same foreign society. Both societies now charge for collecting on behalf of their members from foreign societies. Unlike ASCAP, BMI takes from its members the right to license dramatic performances of up to 30 minutes of opera, operettas and musical comedies, but in practice does not exercise that right.
As BMI is a private company, it is perhaps more able to temper the product it offers to meet the market than a normal authors’ society with its more rigid constitution. The contracts between the company and its writers and publishers are not necessarily standard, but can be varied to meet individual cases. It also tries in various ways to make its licence more attractive to individual broadcasting organizations. BMI also provides an advisory service for its young writers and publishers to help them with such problems as finance and investment. The board of directors of BMI is drawn from the broadcasting industry, and the stock in the company is owned by members of the broadcasting industry, who are music users. Disputes between BMI and licensees are settled according to the arbitration laws of New York with arbitrators selected by the American Arbitration Association. BMI is a member of CISAC.
Copyright, §V, 14: USA: Copyright collecting societies
SESAC is now the official name of the organization formerly known as the Society of European Stage Authors and Composers, formed in 1930. It is a private licensing company which is privately owned by one family, and it represents a number of music publishers who have put their catalogues under its control. Each year a committee decides on the relative importance of each catalogue in its repertory, and the amounts available for distribution are split up according to this variable formula. There is thus no fixed basis of distribution as with ASCAP and BMI. Both these other societies levy their royalties as a percentage of the licensee’s revenue, but SESAC’s charges are based on fixed lump sum payments, taking into account the location of a station, its power and hours of broadcasting. Its licence is taken out by most broadcasting organizations in the USA.
Details of musical works in SESAC’s repertory are not public knowledge, as it does not prepare a printed catalogue, so it is difficult to calculate how much they are used. Unlike ASCAP and BMI, SESAC is involved in various revenue-producing activities besides simply collecting copyright royalties. It provides broadcasters with sales and production aids in connection with advertising, and offers transcribed programmes of its music to licensees. It also gives its publishers promotional aid, and licenses and collects royalties for mechanical rights in a similar way to the Harry Fox Agency (see below, §iv).
The scale of the activities of the three American organizations can be compared by looking at their receipts from performing rights licences in particular years. Thus in 1952 ASCAP received over 17 million, BMI over $5 million and SESAC about $1 million. By 1957 ASCAP’s receipts were about $27 million and BMI’s about $9·5 million, while SESAC’s remained at $1 million. In 1963 ASCAP’s income had risen to $38 million and BMI’s to about $15 million, while SESAC’s was still $1 million.
Copyright, §V, 14: USA: Copyright collecting societies
Before 1909 there was no copyright protection in the USA for the mechanical right, that is, the right to reproduce a musical work on gramophone record or some other mechanical device such as the soundtrack of a film. But under the Copyright Act of 1909 this right was introduced for the first time. Under the new law, the royalty in respect of each work on a gramophone record is either 2·75¢ in total or 0·5¢ per minute of playing time (or fraction thereof), whichever is the larger. The Music Publishers’ Protective Association set up the Harry Fox Office (now the Harry Fox Agency) to act as its members’ agent in administering mechanical right licences, and it also acts for publishers outside the association if they wish to use its services. The Harry Fox Agency charges 3·5% of receipts for publishers whose receipts are above a certain sum, and 5% if the publisher’s receipts are below that sum. The agency grants licences to record manufacturers and others availing themselves of the mechanical right, and collects the statutory royalty from them. The receipts are then distributed to the entitled copyright owners after the agency has deducted its percentage. Record companies’ accounts are audited regularly to ensure that these royalties are correctly accounted for.
The Harry Fox Agency is a member of BIEM. American publishers can have mechanical royalties arising in foreign countries collected for them through the Fox Agency by local mechanical societies which are members of BIEM. The foreign society will collect as agent, and remittances will be made through the Harry Fox Agency and will be subject to the deduction of both the Harry Fox percentage and the charge of the local society. For collections in Europe, other than in Scandinavia, the Mechanical-Copyright Protection Society acts as agent for the Harry Fox Agency. Where the Fox Agency has direct connections with the local mechanical right society, the charge to the American publisher is lower than if the arrangements are made through the central organization of BIEM.
Copyright, §VI: European mainland, Ireland and Scandinavia
Albania’s fledgling society, ALBAUTOR, came into existence in December 1992 shortly after the enactment of the country’s first law on copyright. This provides for most aspects of protection found in older-established European copyright systems. Already the society represents over 300 members, although its work has been hampered by the poor financial and social situation of the country, and the resistance to payment of copyright royalties as a form of taxation.
Copyright, §VI: European mainland, Ireland and Scandinavia
The Staatlich Genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger (AKM) collects in Austria in respect of the performing right in musical works. A collecting society under this name was originally founded as long ago as 1897, but when Hitler occupied Austria in 1938 AKM was forcibly dissolved, and its members were obliged to join STAGMA, the German society set up by the Nazi government (see under Germany: GEMA). When Austria was liberated in 1945 a new society was set up called AKM, acting under the copyright law of 1936, which is exclusively entitled to exercise the rights it controls in Austria. Austrian copyright law was amended in 1986. AKM is a member of CISAC.
Mechanical rights in Austria are controlled by the Gesellschaft zur Wahrnehmung Mechanisch-Musikalischer Urheberrechte mbH (‘Austro-Mechana’), founded in 1946, which is a member of BIEM. It is administered by 12 authors, 18 composers and 15 music publishers.
Copyright, §VI: European mainland, Ireland and Scandinavia
Estonia, Latvia and Lithuania have all set up independent collecting societies since gaining independence. These are the Estonian Authors’ Society (EAU), the Copyright and Communication Consulting Agency/Latvian Copyright Agency (AKKA/LAA) and the Agency of Lithuanian Copyright Protection Association (LATGAA). All are members of CISAC.
Copyright, §VI: European mainland, Ireland and Scandinavia
The internationally affiliated Société Belge des Auteurs, Compositeurs et Editeurs (SABAM) also handles mechanical rights and is a member of both CISAC and BIEM. The society was established in 1922 and administers performing, mechanical, literary, dramatic, plastic, graphic and photographic rights, as well as home copying, rental and lending rights. A new copyright law, the Loi Lallemand, on authors’ and neighbouring rights came into force in 1994, replacing the previous legislation of 1886. The term of protection is now 70 years post mortem.
Copyright, §VI: European mainland, Ireland and Scandinavia
The Bulgarian Society of Authors and Composers for Performing and Mechanical Rights (MUSICAUTOR) was established in 1992, when a new copyright law was introduced. A previous society known as JUSAUTOR was dissolved at the same time. MUSICAUTOR is a member of CISAC, and claims to be the only significant collecting society in Bulgaria. It represents almost 1000 authors and composers, but has to contend with a severe problem of music piracy.
Copyright, §VI: European mainland, Ireland and Scandinavia
By a decree of 1936 a national authors’ society for the former Czechoslovak Republic was granted the exclusive right to administer performing rights in that country. This was Ochranny Svaz Autorsky (OSA), based in Prague, which continued to carry out international copyright administration for the whole country until 1969. Following the formation in that year of a federation between the Czech Socialist Republic and the Slovak Socialist Republic, it was agreed that Slovensky Ochranny Zvaz Autorsky (SOZA) would carry out international copyright administration for copyright owners living in the Slovak area, while OSA would continue to perform the same function for copyright owners living in the Czech area. OSA is both a performing right and a mechanical right society, and belongs to both CISAC and BIEM. Following the break-up of Czechoslovakia into two separate states in 1992, the two societies continued operations with OSA taking responsibility for the new Czech Republic, and SOZA becoming the society for Slovakia.
Copyright, §VI: European mainland, Ireland and Scandinavia
The Danish copyright statute dates from 1961, and as a member of the EU Denmark is obliged to grant protection for the author’s life plus 70 years. Selskabet til Forvaltning af Internationale Komponistrettigheder i Danmark (KODA) is the collection society for performing rights. Founded in 1926 as a direct result of the commencement of broadcasting by Danish Radio, KODA has since 1935 held an exclusive right from the Danish Ministry of Cultural Affairs to license the public performance of copyright music in Denmark, Greenland and the Faeroe Islands. KODA is a member of CISAC. In 1987 the society amended its rules to administer mechanical rights on behalf of its members. It is estimated that 99% of its membership has assigned both broadcasting and mechanical rights to KODA. The old copyright law of 1961 was replaced in 1995 by a revised law. This has extended the term of protection from 50 to 70 years post mortem, and has also implemented a number of EU directives on rental and lending, transmission by cable and satellite, and software.
Nordisk Copyright Bureau (NCB) operates in respect of mechanical rights all over Scandinavia, as well as in Denmark, although its head office is in Copenhagen. NCB is a member of both CISAC and BIEM.
Gramex is the name of a collecting society set up jointly by the Danish Group of the International Federation of the Phonographic Industry, the Council of the Joint Artists’ Organizations and the Danish Actors’ Union to exploit the right to equitable remuneration for the public performance or broadcasting of records. This right is enjoyed by the record manufacturers and recording artists, and is similar to the record manufacturers’ right administered by PPL in Great Britain. There is a representative of the Ministry of Cultural Affairs on the board of Gramex, as well as representatives of the record manufacturers’ and the performers’ organizations. The revenue available for distribution is divided equally between the record manufacturers and the performers. The right-owners have only a compulsory licence, and in the absence of agreement with a licensee the matter must be referred to a tribunal appointed by the Minister of Cultural Affairs. Revenue from the Danish state broadcasting organization (Danmarks Radio) is collected at a fixed rate per minute of music used. Collection from the great number of individual users through public performance is always more difficult than collection from large, easily accessible licensees, such as broadcasters. Rather than go to the great expense of setting up a new collecting system, Gramex has come to an arrangement with KODA to present a joint account through the Gramex system, and Gramex pays KODA for this service.
Distribution of the revenue is facilitated by a sophisticated computer system, as the state broadcasting organization supplies elaborate logging details of protected records which it has used. Distribution to the qualifying artists who performed on records which have been used in licensed broadcasts is worked out by a graded system of points according to the artist’s contribution. This is multiplied by the actual playing time and further multiplied according to the category of music recorded. The same technique cannot be applied to records which have been publicly performed, as there are no sufficiently accurate returns. Accordingly the record producers’ share is paid out according to each record company’s share of the market, while the funds available for artists are shared out among the Danish Musicians’ Union, the Danish Conductors’ Association, the Danish Union of Choirs, the soloists’ organizations and the Danish Actors’ Union. Funds are reserved for individuals who do not belong to these organizations, and also for foreign right-owners. Since Denmark ratified the Rome Convention of 1961, the performances and broadcasts in Denmark of certain foreign recordings have been protected. It is not difficult to distribute these royalties to foreign record manufacturers, but it is harder in the case of artists living abroad, as there is not an international network of affiliated societies acting as CISAC does for performing rights.
Copyright, §VI: European mainland, Ireland and Scandinavia
As a member state of the EU, Finland has extended its protection period to life plus 70 years. Its basic law dates from 1961. Saveltajain Tekijanoikeustoimisto (TEOSTO) is the internationally affiliated performing right society in Finland; it was founded in Helsinki in 1928 to safeguard its members’ musical copyrights in Finland and abroad. Members assign to TEOSTO all musical performing rights vested in them, including future rights to be acquired during their membership. These are administered in the normal way by authorizing public performances and collecting royalties, and the society may take civil and criminal action against infringement. TEOSTO is much assisted by a decree of 1941 which stipulates that when permission is given for a public entertainment the licence must contain a warning that copyright law is to be complied with. This also applies to licences for such establishments as cafés and hotels. Royalties collected are distributed among members less a deduction for administrative expenses. TEOSTO is a member of CISAC.
Copyright, §VI: European mainland, Ireland and Scandinavia
The protection of the author's right, and particularly the performing right, appears to be a cornerstone of the law. In common with other major countries which have traditionally been in the forefront of copyright protection, during the 1980s France perceived the need to overhaul and modernize its copyright legislation in response to the rapid changes brought about by technology. Accordingly, a new copyright law was enacted in 1985. France is a member of the major international copyright conventions. As a member of the EU it will have to extend protection to a post-mortem period of 70 years.
Since the true home of the concept of collecting societies for authors’ rights is France, it is somewhat surprising that there is no law specially governing them there. The first such body was a bureau for collecting royalties for writers and composers of dramatic works which was established as long ago as 1791, the year that the right of public performance was introduced into French law. This became in 1829 the Société des Auteurs et Compositeurs Dramatiques (SACD), which is still active today. Indeed, there are still many countries in which dramatic authors have been unable to set up a parallel society for the defence of their rights.
Set up in 1851, SACEM was the first society for collecting performance royalties for musical works. It was established following the refusal in 1847 of the composers Alexandre Bourget and Victor Parizot to pay their bills at a restaurant where the proprietor used copyright music, performing it publicly without payment. They then embarked on an action before the Tribunal de Commerce de la Seine to prevent the unauthorized performance of Bourget’s works. This decision was finally confirmed by the Cour d’Appel de Paris, and the two composers formed a group which founded the Agence Centrale pour la Perception des Droits d’Auteurs et Compositeurs de Musique in 1850; in the following year this became the organization now known as SACEM.
Initially the struggle to establish its position and authority was extremely difficult, and SACEM was often obliged to resort to the courts, where it was generally successful. Gradually it increased in strength, and the royalties collected for distribution to the members grew. Eventually SACEM wished to extend its operations outside France, and in 1878 an agency was set up in Belgium. A persuasive campaign led by SACEM resulted in the Belgian parliament’s passing a law for the protection of literary and artistic property in 1885, after which agencies sprang up in a number of other countries, including the Netherlands, Switzerland, Spain, Greece, Monaco, Portugal, Egypt, Romania, Syria and eventually Great Britain. Foreign authors in countries which lacked a national collecting society were glad to allow an agency of the French society to protect their interests. In due course foreign authors began to form their own national societies, which became affiliated to SACEM and replaced the agencies. There is no doubt that it was the example of SACEM which led to similar societies being successfully established all over the world.
SACEM is administered by a tripartite committee consisting of five author members, five composer members and five publisher members. If possible the royalties collected are based on a percentage of receipts, but where this is not feasible an annual lump sum payment may be made. The state broadcasting organization pays a single lump sum for the use of the rights controlled by the following four organizations: SACEM, the dramatic right society SACD, the literary society Société des Gens de Lettres de France and the international mechanical right organization (BIEM, and SDRM; see below). SACEM is a member of CISAC and BIEM.
SACEM also administers authors’ rights in French overseas territories, Luxembourg, Lebanon and most of the former French colonies in Africa.
The mechanical right was first recognized by the French courts in 1905, and collections in respect of it were originally made exclusively by individual companies. SDRM, an offshoot of BIEM, was founded in 1935 and is a non-profit organization exercising the mechanical right and organized by the right-owners themselves. Collection for the manufacture of recordings is based on a percentage of the retail price of recordings sold, which is distributed to the entitled members. While SDRM exists as a separate legal entity, it technically has no staff, and all its activities are now undertaken by SACEM. The administration of the two societies is now integrated, and mechanical right royalties collected by SDRM are passed over to SACEM for distribution. SDRM is a member of BIEM.
Copyright, §VI: European mainland, Ireland and Scandinavia
Germany has been responsible for many changes which have taken place in copyright law in recent decades. The Federal Republic of Germany was the first state to adopt protection for the life of the author plus 70 years, in its copyright statute of 1965, and this was the model which the EU later imposed on all member states. The former German Democratic Republic was absorbed into the German Federal Republic, which is a member of the main international copyright conventions.
Performing and mechanical rights in Germany are administered by the Gesellschaft für Musikalische Aufführungs- und Mechanische Vervielfältigungsrechte (GEMA). Shortly after a new copyright act was passed in Germany the Genossenschaft Deutscher Tonsetzer participated in setting up an institute of musical performing rights, Anstalt für Musikalische Aufführungsrechte (AFMA), in 1903. This was the forerunner of GEMA, which carried on operating an authors’ society until 1933. In that year the society was converted into the Staatlich Genehmigte Gesellschaft zur Verwertung Musikalischer Urheberrechte (STAGMA), under which name it continued until the end of World War II. The society then resumed its operations under Allied supervision. The present title was adopted in 1947 (retaining the old acronym GEMA), since when the society has succeeded in establishing itself as an extremely effective means for administering copyright in musical works. Since 1938 the Anstalt für Mechanisch-Musikalische Rechte (AMRE) has been affiliated to GEMA as a special department.
In 1971 GEMA was the subject of a decision by the Commission of the EEC which may have far-reaching consequences for authors’ societies. It was the result of an investigation brought under the anti-monopolistic provisions of the Treaty of Rome, in particular article 86 thereof, and in certain respects the decision strikes at the very roots of the principles upon which successful authors’ societies have hitherto operated, namely that no society may collect upon the territory of a foreign society to which it is affiliated, and that no individual may be a member of more than one society at a time, being encouraged to join his national society. It remains to be seen what effect this will have on collecting societies within the EU and elsewhere, for in the Netherlands and Switzerland the state intervened to create in each country a monopoly position because competition between authors’ societies had not been found to benefit either music user or copyright owner, and laws were passed to prevent the agency of a foreign society acting there.
When the German Democratic Republic was established within the Soviet bloc after World War II, a separate organization, Anstalt zur Wahrung der Aufführungsrechte auf dem Gebiete der Musik (AWA) was set up in that territory. In October 1990, on the occasion of German reunification, GEMA assumed responsibility for the activity formerly carried out in the DDR by AWA. GEMA membership was offered to AWA’s members, and GEMA started up licensing operations in the east. GEMA had expected that the starting up of operations in the former DDR would be a financial liability for some years, but after only one year the investment had been recovered, and the operation was in surplus. GEMA is a member of both CISAC and BIEM.
Copyright, §VI: European mainland, Ireland and Scandinavia
The Société Anonyme Hellénique pour la Protection de la Propriété Intellectuelle (AEPI) is both a performing right and a mechanical right society. By Greek law societies for the protection of authors’ rights are entitled to represent their members before any administrative or judicial body, to control the sales of printed music, discs and other mechanical reproductions of music and the visual arts for copyright purposes, and to administer the copyright in performances of musical works. OPI, the Greek copyright organization, is responsible for supervising the operations of collecting societies. AEPI is a member of both CISAC and BIEM.
Copyright, §VI: European mainland, Ireland and Scandinavia
Before World War II there was an authors’ society in Hungary known as MARS, which administered the performing rights in non-dramatic music but did not control dramatic performances. This society continued operations until 1953, when its functions were taken over by ARTISJUS. ARTISJUS controls both performing rights and mechanical rights, and is a member of both CISAC and BIEM. A new copyright law for Hungary was introduced in 1996.
Copyright, §VI: European mainland, Ireland and Scandinavia
Iceland’s revised copyright law dates from 1972. It has not joined the EU but is a member of the European Economic Area. Samband Tonskalda og Eigenda Flutningsretter (STEF) was formed in Reykjavik in 1948, four years after a fully independent republic was re-established in Iceland. Apart from the difficulties of operating a collecting society in a state whose population was then less than 200,000, there was considerable resistance from potential licensees in the early days, and STEF had to resort to an unwelcome amount of court action to establish its rights. The society did, however, achieve a pioneering success in a direction where larger societies had not been so successful. In an action for infringement by the unauthorized performance of copyright works on the radio of the American forces’ base in Iceland, STEF successfully established the society’s entitlement to copyright royalties. Its operations are now fully accepted in Iceland’s culturally advanced society. STEF is a member of CISAC.
Copyright, §VI: European mainland, Ireland and Scandinavia
Like other member states of the EU, the Republic of Ireland follows the union’s copyright rules. Until 1 January 1995 the administration of performing rights in Ireland was carried out by the PRS in London. But on that date the Irish Music Rights Organisation (IMRO) took over operations in Ireland formerly administered by PRS. Mechanical rights in Ireland are administered by MCPS Ireland, which works in close conjunction with IMRO.
Copyright, §VI: European mainland, Ireland and Scandinavia
The structure of copyright law in Italy has been rather antique, and the basic law of 1941 has had to be amended on a number of occasions in order to reflect technological changes. Italy is a member of the Berne and Universal Copyright conventions, and in common with other member states of the EU has adopted a term of copyright protection of the author's life plus 70 years.
The Società Italiana Autori ed Editori (SIAE) was founded originally in Milan in 1883 and transferred its administrative centre to Rome in 1926. The society’s position is extensively dealt with under the copyright act of 1941, amended in 1979, which gives it the status of a corporation of public law, its staff being regarded as public employees and its agents as public officials. Its annual accounts must be submitted to the ministry responsible for commerce, which also exercises general supervisory powers over the society. SIAE has the exclusive right to act as intermediary in collecting royalties for the rights it controls, although the author as right-owner may act directly if he chooses. SIAE is therefore effectively a monopoly, despite being in a member state of the EU. It is also responsible for collecting royalties for works in the paying public domain, which is a particular feature of Italian copyright law. In addition the society collects for certain dramatic performances, state-subsidized films and the entertainments duty. SIAE represents those right-owners who have given it a specific mandate entrusting the society with the protection of their entire copyright. In line with the EU directive, the term of copyright protection has been extended to 70 years from the death of the author. Although it is an autonomous organization, SIAE has unusually close links with the Italian government, and two of its main board directors are government-appointed. SIAE is a member of CISAC.
The Società Esercizio Diritti Riproduzione Meccanica (SEDRIM) was until 1971 an internationally affiliated society for administering mechanical rights, with its head office in Milan, and it was a member of BIEM. In that year its functions were taken over by SIAE.
Copyright, §VI: European mainland, Ireland and Scandinavia
Until 1932 there were two organizations in the Netherlands collecting authors’ rights. One was the Bureau voor Muziek-Auteursrecht (BUMA), which at that time was formed by the Society of Netherlands Composers and the Association of Dutch Music Dealers and Publishers. The other was the agency of SACEM, the French performing right society. Competition between the two societies led to difficulties, and the national copyright law was amended in 1932 to provide that intermediaries handling musical performing rights must be licensed by the Minister of Justice. The basic copyright law of the Netherlands is contained in an act of 1912, but this has also been amended, in 1972, 1990 and 1995. The licence was granted to BUMA, the Dutch organization, and, as SACEM was not allowed to continue, it transferred its repertory in the Netherlands to BUMA, and ceased to be an independent performing right organization there. It was suggested that this conflicted with the provision of the Berne Copyright Convention that the rights granted should be enjoyed and exercised without being subject to any formality, but the Minister of Justice held that this was not so. An individual author was not compelled to join BUMA, but remained free to control his rights himself. The rights of the convention were vested in the author, not the intermediary, and the new Dutch law only affected the operation of the intermediary.
Two new societies became members of BUMA to provide for a broader representation. One was the association of men of letters, the other the trade union of writers of light music. Thus the four organizations are members of BUMA, and their members in turn are automatically eligible for affiliation with BUMA. But writers and publishers who are not members of one of the four organizations may nevertheless become affiliates of BUMA. The board consists of representatives of the four associations and certain members appointed by the Minister of Justice. Directors hold office for two years, with half their number retiring each year. A government commissioner assisted by a committee of consultation is appointed by the Minister of Justice. He acts as an impartial observer in disputes involving the management and board of BUMA, and has overall responsibility for seeing that the rules of good management are adhered to.
The society is a non-profit organization which distributes all its receipts among its members after deducting administrative expenses. Licensees submit returns listing works performed; these returns are analysed, and broadcasting and performance royalties distributed on the basis thereof. The nature of the work is an important consideration in arriving at distribution entitlement. ‘Serious’ music is also given more credit than light and popular music and is also subsidized by BUMA in other ways: for example, live performances are not charged with administration expenses. Part of BUMA’s income is used to support organizations furthering the development of Dutch musical life. BUMA is a member of CISAC.
Mechanical rights in the Netherlands are administered by the Stichting tot Exploitatie van Mechanisch Reproductie Rechten der Auteurs (STEMRA), a non-profit organization closely connected with BUMA. The director and committee of STEMRA are appointed by the general committee of BUMA. STEMRA is a member of BIEM.
BUMA and STEMRA have now amalgamated many of their operations and, though still individually responsible for the performing and mechanical right elements, generally operate as BUMA/STEMRA.
Copyright, §VI: European mainland, Ireland and Scandinavia
Norway has remained outside the EU but is a member of the European Economic Area. Its basic law on copyright dates from 1961 and reflects the close cooperation and consultation of the member states of the Nordic Council.
Norsk Komponistforenings Internasjonale Musikkbyra (TONO) was formed in 1928, and has its head office in Oslo. It offers two categories of membership to music writers and copyright owners: full membership, which carries with it voting rights, and associate membership, without voting rights. The society administers all performing rights for its members except for non-musical dramatic works and literary works. TONO is a member of CISAC.
Copyright, §VI: European mainland, Ireland and Scandinavia
Stowarzyszenie Autorów (ZAIKS), the Polish society of authors, composers and publishers, was formed as long ago as 1918, and its membership extends to most writers and publishers of music in the country. It controls performing rights and mechanical rights, and is a member of both CISAC and BIEM. A new copyright law was passed in 1994 which extended copyright protection to 50 years post mortem, from the previous period of 25 years. Protection to neighbouring right-owners was granted for the first time, together with tougher penalties for piracy. This law also effectively removed the de facto monopoly position that ZAIKS had enjoyed, in consequence of which many new collecting societies have come into force in Poland.
Copyright, §VI: European mainland, Ireland and Scandinavia
The Sociedade Portuguesa de Autores (SPA) was for many years known as Sociedade de Escritores e Compositores Teatrais Portugueses (SECTP) and was founded in 1925 to protect its members’ interests and to administer both their performing and their mechanical rights. The society is the only body authorized to act as a copyright collecting society in Portugal. Portuguese copyright law was for many years unusual in that copyright was perpetual, but from 1966 the more usual period of 50 years from the author’s death was in force. The post-mortem period is now 70 years, in line with EU policy. SPA is a member of both CISAC and BIEM.
Copyright, §VI: European mainland, Ireland and Scandinavia
The Uniunea Compozitor si Muzicologilor din Romania/Association Droits d’Auteur (UCMR/ADA) achieved fully independent status from the old Romanian Musicians’ Union in 1996. A new intellectual property law was passed that year bringing Romania to the same international standards as most of the rest of Europe in respect of authors’ and neighbouring rights. The duration of protection for composers is now 70 years post mortem. The new law also abolished the legal monopoly which the society had previously enjoyed. All composers are accepted as members without preconditions. But, in the face of the economic and social conditions in Romania, the society is struggling to change the perceptions of copyright users, the public and its own members in their attitudes towards copyright and the protection of intellectual property in general.
Copyright, §VI: European mainland, Ireland and Scandinavia
See below under (former) ussr.
Copyright, §VI: European mainland, Ireland and Scandinavia
(see former history under czech republic). After the break-up of the former Czechoslovakia into two separate states in 1992, OSA continues its responsibility for the new Czech Republic while SOZA has become the society operating in Slovakia.
Copyright, §VI: European mainland, Ireland and Scandinavia
The original law regulating intellectual property rights in Spain dates from 1879 and granted a post-mortem period of protection of 80 years. As with the rest of the EU that period has now been set at 70 years after the death of the author. Spain’s current copyright law dates from 1987 and was amended in 1992. As well as including a droit de suite for the benefit of creators of artistic works, it provides protection for computer programs. Spain adheres to the main international copyright conventions.
The first authors’ collecting organization in Spain was the Sociedad de Autores Españoles, founded in 1899. This served its members well, but with the passage of time it was found that a society controlling the entire copyright would be better suited to meeting new technological developments. Thus the Sociedad General de Autores de España (SGAE) was formed from the following independent interests: dramatists, authors of variety shows, performing rights, poets, film authors and representatives of reproduction rights. SGAE is the sole organization entitled to collect royalties for authors’ rights. The society is obliged to return a periodic report to a government department, and the state is represented on its administrative council.
Certain performances cannot receive official authorization unless copyright royalties have been paid in advance. Spain operates a system of payments for works in the public domain, and SGAE acts as the agent of the state in collecting those royalties. The society operates a benevolent fund for authors’ dependants, the capital for which is provided by a deduction from members’ royalties. Spanish copyright law provides for ‘author’s seats’: the author of a musical or dramatic work is theoretically entitled to claim two first-class seats every time the work is performed, but now the cost of one seat is payable to the author. SGAE is both a performing right and a mechanical right society, and is a member of both CISAC and BIEM.
Copyright, §VI: European mainland, Ireland and Scandinavia
Sweden was the first of the Nordic Council member states to revise its copyright laws, doing so in 1960. As a member of the EU it is obliged to protect copyright for the life of the author plus 70 years.
The Foreningen Svenska Tonsåttares Internationella Musikbyra (STIM) was formed in 1923 as a registered society without personal liability. Its statutes are supervised by the government, which appoints the president of its executive committee. Its members assign the performing and mechanical rights to the society in present and future works, and it handles a wider range of copyright than many foreign authors’ societies. Licences may be charged on a fixed tariff according to the kind of use to which the music is put, or as a percentage of receipts. The latter arrangement is fairer to authors in an era of inflation. Licensees are obliged to make periodic returns showing the musical works used, which STIM uses as a basis for distributing royalties in conjunction with a points award system. NCB of Copenhagen (see above, under Denmark) acts as agent for STIM in administering mechanical rights. STIM is a member of CISAC.
Copyright, §VI: European mainland, Ireland and Scandinavia
As in several other countries, the first collecting society in Switzerland, Société Suisse des Auteurs et Editeurs (SUISA), was an agency of SACEM (see above, under France). Eventually in 1924 a Swiss performing right society, GEFA, was set up, and for a time the two societies worked in competition. But this arrangement was of no benefit to music users, and alleged to be of little benefit to copyright owners. The state intervened, and by a law of 1940 ordained that only one Swiss organization could administer performing rights, and that in granting this concession preference should be given to a Swiss organization. Accordingly SUISA was set up in 1941 as successor to GEFA to administer in Switzerland and Liechtenstein the performing rights in the present and future works of its members. SUISA is under government supervision, and its tariffs have to be published and approved by an arbitration commission. SUISA is a non-profit organization which distributes all its receipts, less administrative expenses, to members. The society is a member of CISAC.
The copyright act of 1993 was amended in 1995. A new law was passed in 1996 regulating the operations of the Federal Office of Intellectual Property (OFPI). This provides that authors’ societies must submit their tariffs and distribution rules to OFPI. Both performing and mechanical rights are now administered by SUISA. Until 1980, mechanical rights in Switzerland had been administered by Mechanlizenz, an organization which has now been fully integrated into the administration of SUISA.
Copyright, §VI: European mainland, Ireland and Scandinavia
With the ratification by the Soviet Union of the Universal Copyright Convention on 27 May 1973, a complete change in the approach adopted by the USSR in its international copyright relations had taken place. The attitude to the problem had always been anomalous, for, even before the October Revolution, Tsarist Russia alone among the major European powers of the day had chosen not to enter the international copyright system set up by the original Berne Convention of 1886, to which France, Germany, Great Britain, Italy and Spain had all subscribed. After World War II the USSR and Albania were the only Comecon countries in Europe that belonged to no copyright convention. Bulgaria, Czechoslovakia, Hungary, Poland, Romania and Yugoslavia all continued to adhere to the Berne Convention; in Czechoslovakia (OSA and SOZA), East Germany (AWA), Hungary (ARTISJUS), Poland (ZAIKS) and Yugoslavia (SAKOJ) there were internationally affiliated authors’ societies during the period of communist rule.
Until the USSR entered the Universal Copyright Convention there was no internationally affiliated society in that country which could receive on behalf of its members any payments made by foreign authors’ societies for performances in their territories of works controlled by authors living in the USSR. This was a grave disadvantage for Soviet authors and composers resident there, but at that time no foreign works were protected by copyright law, and so no society in the USSR could undertake reciprocal obligations to account to foreign societies for performances in the USSR of foreign works. There was in each of the 15 republics of the USSR a civil code containing provisions on copyright, and also model publishing agreements having the force of law governing relations between author and publisher. But protection could extend to the works of a foreigner only if they were first published in the Soviet Union, and even then royalties could probably not be remitted abroad. When the convention was ratified in 1973 there appeared to be two societies exercising performing rights on behalf of their members. One was the Moscow Society of Playwrights and Composers (MOPDIK). The other was the Ukrainian Society of Playwrights and Composers (UTODIK).
Until 1973, the only international copyright agreement into which the USSR had entered was a bilateral treaty with Hungary, whereby each country recognized the copyrights of resident nationals of the other state in respect of works first published in that other state. But by adhering to the Universal Copyright Convention, the USSR accepted the principle that each member state undertook to give the unpublished works of the nationals of all other member states the same protection as it gave to the unpublished works of its own nationals. It also undertook to give to the published works of the nationals of the other member states wherever first published, and to published works of the nationals of any country if first published in one of the member countries, the same rights as it gave to works first published in its own territory.
At that period the Soviet authorities appeared to intend to remodel the collecting arrangements for public performance in the USSR so that any new authors’ society could enter into reciprocal relations with the societies of other countries. Following the collapse of the USSR, the situation in its former territories has become confused and chaotic. Various societies have been created in the new states but have had little or no success in operating for the benefit of their members. In Russia itself, the Russian Authors’ and Composers’ Society (RAO) was set up in 1993 under the auspices of President Yeltsin. It attempts to administer both performing and mechanical rights, and by 1997 claimed to have over 8000 members. RAO is a member of CISAC but not yet of BIEM. Russia’s new law on copyright and neighbouring rights came into force on 3 August 1993. But in a situation where the central government has defaulted on its overseas debts and is unable to collect its internal tax revenues, and where representatives of overseas businesses seeking to collect outstanding debts within Russia are liable to assassination, the prospects for collecting royalties for the performance of copyright works are not high.
Copyright, §VI: European mainland, Ireland and Scandinavia
There continues to be considerable confusion about the position of authors’ societies in the territories which constituted the former Yugoslavia. There had been an internationally affiliated authors’ society in Yugoslavia before World War II, but not until 1955 did a society, known as ZAMP, come into existence which was sufficiently representative of Yugoslav authors and composers to be able to enter into reciprocal contracts with foreign societies. Before the break-up of the Yugoslav federation a collecting society of the Union of Yugoslav Composers had become a member of both CISAC and BIEM, and adm inistered both performing and mechanical rights. This was known as Savez Kompozitora Jugoslavije (SOKOJ).
Copyright, §VI: European mainland, Ireland and Scandinavia
A collecting society known as BIHOMA is in existence, but its activity is minimal and it is not yet affiliated to CISAC.
Copyright, §VI: European mainland, Ireland and Scandinavia
Two organizations are currently listed as operating in Croatia, the Croatian Union of Composers (Hrvatsko Društvo Skladatelja; HDS-ZAMP) and the Croatian Authors’ Agency (Hrvatska Autorska Agencija; HAA).
Copyright, §VI: European mainland, Ireland and Scandinavia
The Macedonian Association of Composers (SOCOM) was established in 1993 when the country gained independence. It has been an associate member of CISAC since then. A new Macedonian law of copyright came into force in 1996.
Copyright, §VI: European mainland, Ireland and Scandinavia
The original Yugoslav society, SOKOJ, is still operating from Belgrade, although with the reduction in size of Yugoslavia and the economic turmoil and war in the last years of the 20th century, its remit and activity have been considerably reduced.
Copyright, §VI: European mainland, Ireland and Scandinavia
Following Slovenian independence, SOKOJ ceased to operate in that part of former Yugoslavia. The Society of Slovenian Composers (Društvo Slovensko Skladateljev; DSS) was created in 1992, and the Slovenian Society of Composers, Authors and Publishers (Zdruzenje Skladateljev Avtorjev in Zaloznikov za Zascito Avtorskih pravic Slovenje; SAZAS) was founded a year later as a licensing, collecting and distributing society for members of those professions. DSS and SAZAS have now merged their operations. The resulting organization is a member of CISAC.
Many states in South-east Asia besides those discussed below have now established their own copyright collecting societies. To the internationally affiliated organizations mentioned under individual countries should be added the Filipino Society of Composers, Authors and Publishers Inc. (FILSCAP) and Music Copyright Thailand (MCT).
The People's Republic is heir to a rich historical tradition of copyright protection, the first vestiges being traceable to the Song Dynasty in the 10th century. In this, as in much else, developments in China were well in advance of those in the West. The intentions of the People's Republic in the areas of both domestic and international copyright protection are unclear. The Music Copyright Society of China (MCSC) collects on behalf of its members.
The copyright law is contained in the Copyright Act of 1982. It was amended in 1987 to control unauthorized use of copyright, in particular the activities of pirates. Indonesia does not adhere to any of the international copyright conventions, as its domestic legislation is not framed in terms which would allow it to do so. Yayasan Karya Cipta Indonesia (KCI) is the national copyright collecting society.
The Copyright Act of 1970 completely revised the protection available, and adopted its obligations under the international conventions. It has frequently been amended to cover public lending right and unauthorized reproduction as a result of new technology.
The Société d’Auteurs, Compositeurs et Editeurs de Musique en Israel (ACUM) was originally founded in 1934 and now has its head office in Tel-Aviv. Israel remains the only country in its geographical location with an internationally affiliated musical rights society. ACUM is both a performing right and a mechanical right society, and is a member of both CISAC and BIEM.
The Japanese Society of Rights of Authors and Composers (JASRAC) is a non-profit organization incorporated under the civil law of Japan, and is the only copyright collection society officially licensed by the commissioner of the Agency for Cultural Affairs under Japan’s special law relating to collecting organizations for copyrights. JASRAC covers the whole of musical copyright, including performing rights, publishing, mechanical and film synchronization rights. Royalties for musical works are collected according to fee scales approved by the commissioner of the Agency for Cultural Affairs. JASRAC is granted permission to operate these scales after the commissioner has consulted the music users’ organizations and the copyright system council.
JASRAC was founded in 1939 after a special law on copyright collecting organizations was passed as a result of the endeavours of a group of Japanese music writers. It handles rights for nearly all Japanese composers and authors, and its activities and the income it has collected have increased rapidly in recent years. The society is managed by 12 directors and a president, elected by a council of 60 members, and five further directors who are appointed by the president with the council’s approval. The head office is in Tokyo, with 23 regional offices; about 800 people are employed either full- or part-time. The society is a member of both CISAC and BIEM.
An internationally affiliated copyright collecting society was set up in Johannesburg in 1962 and was known as the South African Society of Composers, Authors and Music Publishers Ltd (SAFCA). In 1966 it changed its name to South African Music Rights Organisation Ltd (SAMRO), under which title it has continued operations ever since. SAMRO is a member of CISAC.
The copyright law is contained in the Copyright Act of 1986. There are additional statutes for the protection of computer programs, sound recordings and films. The national copyright collecting society is the Korea Music Copyright Association (KOMCA).
A comprehensive copyright law was adopted in 1985. Although registration is not a specific requirement for protection, there are a number of references to registration in the law. Taiwan does not adhere to any of the international copyright conventions. Its collecting society is the Copyright Holders’ Association (CHA).
A list of internationally affiliated collecting societies operating in the region will be found at the end of this section, after the general discussion of authors’ societies that follows the breakdown by country. In Central and South America a number of special situations affect copyright, and there have from time to time been limited conventions on the subject of a local nature among groups of countries in the region. There have been particular problems of enforcement of rights. Owing to the large areas and sparse populations, policing the unauthorized use of copyright has often proved difficult.
The basic copyright law dates from 1933 and was substantially amended in 1957. It includes a paying public domain, and some stages of the Berne and Universal Copyright conventions have been ratified.
The foundation of copyright protection is the statute of 1973, which has been substantially amended, notably in 1980 and 1983. A statute of 1987 extended protection to computer programs.
Copyright legislation was overhauled in 1982. A certain degree of registration is required, and this has adversely affected Colombia's ability to adhere to the main international copyright conventions. Registration is nevertheless said to be optional in the case of foreign-owned works.
The copyright law was completely overhauled by a statute of 1986, which extended protection to computer programs. The country adheres to certain local copyright conventions in Latin America, and to a revision of the Universal Copyright Convention.
The basic copyright protection is contained in a statute of 1956, which was subsequently modified, notably in 1963 and 1981. Some revisions of the Berne and Universal Copyright Conventions have been adopted.
Although there are authors’ societies in various states which are within the community of internationally affiliated authors’ societies, they do not provide complete coverage, and in some parts of Latin America there is no effective protection of authors’ rights. As a rule there is an adequate national copyright law, sometimes of great antiquity, but the laws are often difficult to apply, to the material loss of both Latin American and overseas authors. Collection in respect of mechanical rights has not raised such grave problems, but the sums collected by certain societies for performing rights have been very low in proportion to the population and known extent of use, and composers have suffered considerably thereby.
In some parts of the continent this is due to the geography, for some populous areas which make substantial use of copyright are so remote from the administrative capital that effective control and collection are impossible. Moreover the sums to be collected are often small, while administrative costs are proportionately very high, certainly by European standards. This deters the societies from trying to enforce their rights more effectively by litigation or recruiting representatives to cover the remoter areas.
The known weakness of certain societies has made it difficult for them to renegotiate old or unfavourable tariffs, or licences which have remained at constant rates for many years, despite substantial inflation of the local currency. Authors’ societies in some Latin American states are also weakened when there is more than one society handling the same right in the same territory, resulting in competition for members and licensed users. In states where copyright is recognized only grudgingly, the existence of more than one society is generally fatal, and although a satisfactory copyright law may have been on the statute books for many years, it is not so well enforced as in other parts of the world which have introduced copyright protection relatively recently. The situation in Central America can be said to have improved in the last decades of the 20th century, and copyright collecting organizations have now been brought into existence in several states.
The following Latin American countries have internationally affiliated collecting societies:
Sociedad Argentina de Autores y Compositores de Música (SADAIC)
Sociedad Boliviana de Autores y Compositores de Musica (SOBODAYCOM)
União Brasileira de Compositores (UBC)
Sociedade Administradora de Direitos de Execução Musical do Brasil (SADEMBRA)
Sociedade Brasileira de Administração e Protação de Direitos Intelectuais (SOCINPRO)
Sociedade Brasileira de Autores Teatrais (SBAT)
Sociedade Independente de Compositores e Escritores de Musica (SICAM)
Sociedade Brasileira de Autores, Compositores e Escritores de Musica (SBACEM)
Associação de Musicos Arranjadores e Regentes (AMAR)
Sociedad Chilena del Derecho de Autor (SCD)
Sociedad de Autores y Compositores de Colombia (SAYCO)
Asociación de Compositores y Autores Musicales de Costa Rica (ACAM)
Agencia Cubana de Derecho de Autor Musical (ACDAM)
Sociedad de Autores y Compositores Ecuatorianos (SAYCE)
Asociación Guatemalteca de Autores y Compositores (AGAYC)
Sociedad de Autores y Compositores de Música (SACM)
Sociedad Panamena de Autores y Compositores (SPAC)
Autores Paraguayos Asociados (APA)
Asociación Peruana de Autores y Compositores (APAC)
Asociación General de Autores y Compositores (AGADU)
Sociedad de Autores y Compositores de Venezuela (SACVEN)
The international exercise of copyright gives rise to balance of payment problems. Those countries which are rich in successful composing talents, and which have flourishing publishing industries, are copyright exporting states, and their copyright balances of payment are generally in credit. These include the USA and many countries in western Europe. But those which do not have internationally successful composers or successful publishing industries are copyright importing countries, for they are obliged to resort to the intellectual products of other states and, if they accept the international copyright system, to pay for such use, which puts their copyright balances of payment into deficit. They include most of the independent states which were formerly colonies of the European powers, and which have either inherited their copyright law from the departing governing country, or have introduced laws of their own after independence.
In certain territories, where no local affiliated authors’ society exists, a foreign authors’ society may appoint an agent to collect in that territory on behalf of its members, and to issue licences in the territory on behalf of his principal.
In the final hours of 1994 the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) was signed at Marrakesh. This brought into existence the World Trade Organisation (WTO). A highly significant innovation was the addition of the Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods (TRIPS). Under WTO administration, this is likely to alter substantially the copyright relationships between developed and underdeveloped states in the years ahead.
GroveO
E.P. Skone James: Copinger and Skone James on Copyright (London, 11/1971)
M.B. Nimmer: Nimmer on Copyright (New York, 1973)