Transcript Diapositive 1

Copyright Licensing
Document’s reference
Author :
Event
City, JJ/MM/AAA – JJ/MM/AAAA
Original language : English
©CISAC
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Subject Matters of Copyrights
• Every production in the literary,
scientific & artistic domain, whatever
may be the mode or form of
expression [Art 2(1), Berne Convention]
• A2(3), Berne makes translations,
adaptations & arrangements of music
& other alterations of a literary or
artistic work protectable as original
works, without prejudice to copyright
in the original work
• A2(5), Berne extends copyright
protection to collections of literary or
artistic works such as encyclopedias
and anthologies
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Subject Matters of Related Rights
• Rome Convention - The International
Convention for the Protection of
Performers, Producers of Phonograms and
Broadcasting Organizations - selfexplanatory regarding the subject matter
protected
• All SAARC countries, except Maldives
are Berne Members; therefore need
to ensure protection for all the above
subject matters
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Subject Matters of Copyright & Related
Rights
• Books, pamphlets and other writings;
lectures, addresses, sermons and other
works of the same nature;
• Dramatic or dramatico-musical works;
• Choreographic works;
• Musical compositions with or without
words;
• Cinematographic works;
• Drawings, paintings,
• Architecture,
• Sculpture, engraving and lithography;
• Photographic works,
©CISAC
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Subject Matters of Copyright & Related
Rights – cont’d
• Works of applied art,
• Illustrations,
• Maps, plans, sketches and 3-dimensional
works relative to geography, topography,
architecture or science
• Translations, adaptations & arrangements
of music & other alterations of a literary
or artistic work
• Performances
• Sound recordings
• Broadcasting programmes
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Subject Matters of Copyright & Related
Rights – cont’d
• From the above non-exclusionary
list, clear that the subject matters of
copyright & related rights laws are
inextricably linked to many
businesses, often without the
conscious realization of the
business owners, particularly SME
owners
• Multinational companies are
generally well advised about their
copyright assets and responsibilities
• Creators are often also not familiar
with the rights accorded to them
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Bundle of Exclusive Copyrights
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©CISAC
Reproduction Right (S3ai)
Public Performance Right (S3aiii)
Broadcasting Right (S3avi)
Cable Transmission Right
Publication Right (S3aii)
Adaptation Right (S3aiv & S3avii)
Making Available Right
Generally, see S3, Pakistan
Copyright Law
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Summary of Related Rights
Performers
Phonogram
Producers
1 Broadcasting or 1 Right to authorise/
communication to
prohibit the direct
the public of a
or indirect
“live” performance
reproduction of
2 Recording an
phonograms
Unfixed
[Art 10]
2 Payment of
performance
equitable
3 Reproducing a
remuneration for
fixation of the
broadcasting and
performance
communication to
[Art 7]
the public of
phonograms
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2
3
4
Broadcasting
Organisations
Simultaneous
rebroadcasting of
thei r broadcasts
Fixation of their
broadcasts
Reproduction of
unauthorised
fixation of their
broadcasts or of
lawful fixations
for illicit purposes
Communication to
the public of their
television
broadcasts against
payment
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Dealings with Copyrights
• Issues to bear in mind when
dealing with copyrights:
Ownership (including special provisions on
works created under employment &
commissioned works)
First owner is the author (S13, Pakistan CR Law)
Special provisions pertaining to employee &
commissioned works (proviso, S13)
Multiple Exclusive & Non Exclusive Rights
Multi-Territory
Term of Copyrights & Related Rights
New Usages & Rights
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• Methods of Dealings in Copyrights:
Sale
Assignment
Licence
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Dealings with Copyrights & Related
Rights
•Sale
Copyright ownership changes in a sale; crucial to
know what has been bought or sold – entire bundle
of copyrights, for lifetime of copyright, all territories
of the world, covering new usages & rights?
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Dealings with Copyrights & Related
Rights
•Assignment
Legal ownership changes from assignor to
assignee; assignor remains beneficial owner
S14 – assignment may be for existing & future
works; partial or in whole; for part or entire term
S15 – all assignments, to be valid, must be written
& signed by the assignor or his authorized agent
“The Assignor hereby assigns to the Society
ALL performing rights as they subsist in all
countries of the world in all musical works
which now belong to or shall hereafter be
acquired by or be or become vested in the
Assignor …”
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• “the expression “performing right” means,
… the right …
• ( i)to perform the work in public
• ( ii)to broadcast the work
• (iii)to cause the work to be transmitted to
subscribers to a diffusion service, ... and
includes such corresponding rights as
subsist under the laws relating to
copyright in all other countries in the force
from time to time”
• ( iv) [to make the work
available/transmittable …]
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Dealings with Copyrights & Related
Rights
• Licensing
Exclusive licensing arrangements
Non Exclusive Licensing Arrangements
Statutory or compulsory licensing
Licensing of foreign rights are normally based
on commercial terms and arrangements;
matter of commercial dealings and are not
subject to government intervention
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Exclusive Licence Clause
“You grant us, with respect to your Works, the
exclusive licence to exercise and manage the
reproduction rights through collective
licences…you retain the right to license your
Works through agencies or organizations that are
not considered to be collective societies.”
(Clause 2.2, Access Copyright, Canada)
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Exclusive Licence - CISAC Reciprocal
Representation Model Contract
(I) By virtue of the present contract,
Society A confers on Society B the
exclusive right, in the territories in which
this latter Society operates to grant the
necessary authorizations for all public
performances of musical works, with or
without lyrics, ...
(II) Reciprocally, Society B confers on
Society A the exclusive right, in the
territories in which this latter Society
operates the necessary authorizations for
all public performances of musical works,
with or without lyrics, ...
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Non Exclusive Licence Clause
“The Owner grants to the Society for the term
hereof, the right to license non-dramatic public
performance of each musical work … of which
the Owner is a copyright proprietor …”
“The right hereby granted shall include:
The non-exclusive right of public performance by
means of radio broadcasting, telephony, wired
wireless, all forms of synchronization with motion
pictures, &/or any method of transmitting sound
other than TV broadcasting;
The non-exclusive right of public performance by
TV broadcasting (with provisos) …
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Licence Clause – To Conduct
Litigation
ASCAP licence agreement - the member also
expressly empowers the CMO to conduct legal
actions on his behalf:
“The Owner hereby irrevocable authorizes,
empowers & vests in the Society the right to:
Enforce & protect such rights of public
performance … in any and all works copyrighted by
the Owner;
Prevent the infringement thereof;
Litigate for damages arising from infringement;
Bring suit in the name of the Owner and/or
Society;
Release, compromise or refer to arbitration …”.
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Licence Clause – Irrevocable Power
of Attorney
ASCAP membership contract also contains an
irrevocable power of attorney to the CMO:
“The Owner hereby … appoints the Society … as the
Owner’s true and lawful attorney irrevocably … and in
the name of the Society … to do all acts, take all
proceedings, execute, acknowledge & deliver any & all
instruments, papers, documents process & pleadings
that may be necessary … to restrain infringements &
recover damages …in respect to the violation of the
rights of public performance in such works, & to
discontinue, compromise or refer to arbitration… ”
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Example of a non-exclusive Translation
Licence
•
•
•
We hereby grant to EC-ASEAN Intellectual Property Rights
Cooperation Programme (ECAP) the non-exclusive right to
translate and publish in the Vietnamese language the work THE
ECONOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW by
William M Landes and Richard A Posner in an edition of 10-15
copies without payment of any fee, advance, or royalties. The
work will be published by ECAP for use in court libraries.
We hereby request that the following copyright notice be included
in your edition: Copyright © 2003 by the President and Fellows of
Harvard College. Reprinted by permission of Harvard University
Press. The title of the said work in English shaIl appear beneath
the Vietnamese title on the copyright page along with the
statement ‘Published by arrangement with Harvard University
Press’ on every copy issued of the said translation.
Thc translation of the said work shall he made faithfully and
accurately. Abbreviations, additions or any alterations in the text
thereof shall be made only with the written consent the
Proprietor.
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Example of non-exclusive licence between
a CMO & a Television Broadcaster
• “MACP hereby grants a non-exclusive licence
to the Licensee to:
• broadcast or cause or allow to be broadcast
MACP’s Repertoire to the public within the
Licensed Territory;
• perform or cause to be performed, MACP’s
Repertoire in public either in the Licensee’s
studio or in other premises within the
Licensed Territory provided that such
performances are for the sole purpose of its
own broadcasts and are organised or
presented solely by the Licensee and not by
or with any other organisation, promoter or
sponsor.”
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Experimental Non Exclusive Licence for
Downloads of Music
• the Licensor hereby grants to the Licensee, on an
experimental basis, a non-exclusive licence to do
the following acts in the Licensed Download
Territory … :
to Copy the Licensor’s Repertoire onto one or more computer
servers or other digital storage media of similar function in Hong
Kong (known as “uploading”) ... whether the storage medium is
directly owned and controlled by the Licensee or otherwise;
to Make Available copies of the Licensor’s Repertoire in the
format of Audio Clip solely for the purpose of the Licensee’s
Online Music Download Service;
to cause or authorise the Licensor Repertoire to be copied from a
computer server or other storage medium onto personal
computers (known as “downloading”) in the Licensed Download
Territory …”
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Compulsory Licences
• The copyright in a musical work is not
infringed by a person who makes a
record of the work if:
Records of the work have previously been made in
or imported into Singapore for the purposes of
retail sale … with the licence of the copyright
owner;
The person intending to make recordings of the
work gives notice of intention to the copyright
owner;
The reproduction is for retail sale; and
The person pays royalty to the copyright owner
(S56, Singapore Copyright Act)
Article 57 fixes the royalty payable at 5% of retail selling price of the record
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Compulsory Licences
• Section 52, Singapore Copyright Act
provides a statutory licence to educational
institutions in Singapore to make multiple
copies of works on condition that the
educational institutions “pay to the owner
such an amount by way of equitable
remuneration for the making of those copies
as is agreed between the owner and the
body or in default of agreement, such
amount as is determined by the Copyright
Tribunal”
• Similar provisions apply for multiple copying
by institutions assisting handicapped
readers
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Compulsory LIcences
• A43 of China’s copyright law provides
that ‘a radio or television station that
broadcasts a published sound
recording may do so without
permission from but shall pay
remuneration to the copyright owner
…”
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Compulsory Licences
• S35 – Copyright owner may give
written licence for use of work
• S36 – Statutory licensing provision
Federal Government or Copyright Board may in
the public interest, grant a licence to reprint,
translate, adapt or publish any textbook on a
non-profit basis
Applies only to Pakistani works
• S37 – Compulsory licence to produce
& publish translation of a literary or
dramatic work in any Pakistani
language; subject to conditions
including payment of royalties
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Licensing Usage of Works - Collective
Management Organizations
• If you wish to license your works for use
by airlines, as ring tones, for broadcasts,
by entertainment establishments such as
hotels, private clubs, restaurants – create
& join a CMO
• CMOs monitor uses of works on behalf of
creators and copyright owners, negotiate
licences and collect remuneration on their
behalf and distribute these monies back
to the owners after deductions for
expenses
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Licensing Usage of Works - Collective
Management Organizations
• CMOs in the field of musical works exist
in many Asian countries
• In the field of literary works, the numbers
of such organizations (RROs) that are
operational within Asia are more
restricted, being limited to Singapore,
Australia, New Zealand, Hong Kong,
Japan, South Korea
• There are also collecting societies that
exist to administer the rights in sound
recordings and that of performers, which
are separate and different from societies
administering the rights in musical works
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Licensing Usage of Works - Collective
Management Organizations
• CMOs offer a tremendously useful service
- rather than deal directly with each
individual right holder, CMOs offer users
a one-stop shop where rates and terms
of a licence can be negotiated, and where
authorizations can be easily and quickly
obtained
• Dealing with CMOs save users a lot both
in terms of time and money
• Where CMOs don’t exist, licence
agreements need to be negotiated
individually, whether the rightowner is a
licensor or licensee
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Using Copyrights
• “Do not do unto others what you do not
wish upon yourself”
• Responsibility of a user to respect the
copyrights and related rights of others in
its quest to grow its own business. Thus,
if you use someone else’s copyright work
or related right in your business, you
must first and foremost seek the
permission of the owner for the use
• Normally, such permission is granted by
way of a licence and the payment of fees
or royalties
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Using Copyrights
• Negotiate and obtain a licence agreement
before you use or exploit the product
• Once you have used a copyright work
before obtaining the necessary
permissions, the usage amounts to an
infringement and your negotiating
position is considerably weakened
• Being sued for copyright infringement
incurs additional costs & time that is
already often of limited supply
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Using Copyrights
• There are exceptions to copyright
infringement found in the laws of all
countries
• Thus, if the usage undertaken should fall
within one of these exceptions, then, a
licence would not be required.
• Such provisions do vary quite widely
among countries and it would be beyond
us today to deal with them
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Works Published on the Internet
• Copyright protection extend into the
digital environment
• Any work protected by copyright, ranging
from musical compositions, to multimedia
products, newspaper articles and
audiovisual productions for which the time
of protection has not expired, are
protected regardless of whether they are
published on paper or by other means for
example, on the Internet
• Similarly, authorization is required if your
SME is engaged in publishing or making
copyright works, sound recordings,
broadcasts or performances available
through your Internet website
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ECONOMIC IMPORTANCE OF COPYRIGHT &
RELATED RIGHT INDUSTRIES
• SINGAPORE
• Total value added (VA) of S$2.98 billion or
about 1.9% of GDP
• Distribution industries associated with these
core creative industries added a further
S$2.02 billion
• Total VA of the copyright industries is S$5
billion or 3.2% of GDP
• Employment in the creative industries was
47,000 (2.2% of nation-wide employment),
with an additional 34,000 persons employed in
the distribution industries
• Total employment of the industries was
81,000 or 3.9% of total employment in 2000
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ECONOMIC IMPORTANCE OF COPYRIGHT &
RELATED RIGHTS INDUSTRIES
• From 1986 to 2000, the creative
industries grew by an average of
17.2% per annum, as compared to
average annual GDP growth of
10.5%. The fastest growing
creative industries are IT,
performing arts, cinema services
and advertising.
Interior/graphics/fashion design
and architectural services also
exhibited strong growth of over
6%
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Economic Value of Copyrights
• There is economic value in
copyrights and related rights
created and owned by an SME
• May be used as assets to obtain
financial loans from banks and
other financial institutions
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