CONTINENTAL EUROPEAN (droit d'auteur) AND ANGLO-SAXON (copyright)
SYSTEMS OF COPYRIGHT AND PERFORMING RIGHTS ORGANISATIONS IN
EUROPE AND THE USA
I. DIFFERENCES BETWEEN THE EUROPEAN (droit d'auteur) AND ANGLOSAXON (copyright) SYSTEMS OF COPYRIGHT
1. Introduction
The sole aim of this paper is to compare the principal features of the continental
European and Anglo-Saxon copyright systems, by highlighting in particular the main
differences between the Spanish and US systemsi and by describing the way in which
collective rights management systems operate in the United States.
Each country has its own conception of the legal system that governs it—a result of the
historical, social, economic and moral evolution of the country—and the copyright
legislation that forms a part of that system is no exception to this geographic
peculiarity.ii Mindful of the fact that the extent of copyright protection is governed by the
law of the country in which the protection is requested, differences between the
systems can lead to adaptation issues in so far as they relate to elements linked to
different countries. These problems were less significant in a previous era when
creative works (especially music) were tangible and the circulation of copies thereof
was not influenced by globalisation and the disruptions caused by digital and
telecommunications technologies; however, the Internet has led to the application of
the same technologies in music production and distribution throughout the world and in
all of its legal systems, and these legal systems must begin to adapt to this reality. In
the last 25 years, the leading copyright legal systems have begun to align themselves
as a result of the work of certain international organisations (the WIPO, with its various
international conventions on copyright and related rights; and the WTO, through the
TRIPS), in order to provide a uniform level of protection to all artists in all countries,
regardless of their nationality or the country of origin of the work. Nonetheless, there
are still a number of differences that must be noted. Legal studies exist that have
examined both systems in depth,iii and the aim of this paper is merely to provide a
practical and essential overview that legal scholars may use as a springboard to
furthering their knowledge by consulting other sources.
2. Rights and degree of protection
European systems make a distinction between droits d'auteur (attributable only to the
individuals who create and perform an original work) and related or neighbouring rights
(which protect the artists and any other persons who make efforts or investments in
relation to the creative works, such as the producers of phonorecords and audiovisual
works and recordings, broadcasters and publishing companies), with both of these
groups having similar exploitation rights that confer them an exclusive right to authorise
the reproduction, distribution, public broadcast and transformation of their works,
recordings, signals or editions. Moral rights are reserved for the authors (and to some
extent the artists).
Under the US system no distinction is made between droits d'auteur and neighbouring
rights, but rather creative works and productions are all encompassed under the
concept of copyrightiv, which confers to the holder the right to make or to authorise third
parties to exercise powers similar to those accorded under the exploitation rights of the
European systems mentioned above, with only certain of their moral rights (attribution
and integrity of the work) having been admitted recently for visual artistsv. Although not
included under copyright law, certain moral rights in the US may be recognised via
other means, such as unfair competition legislation or the Lanham Act. UK legislation
recognises a paternity right, preventing false attribution of authorship and distortions to
the work that could harm the author.
The copyright must seek a balance between three different interests:
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The right of the creator to receive exclusive control over his work, and of the
artist over his performance, for a limited time.
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The right of investors (producers of sound and audiovisual recordings) to obtain
a return on that investment.
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The right of third parties to access, subject to certain limitations, the cultural
work during the protection period, and freely once said period has ended and
the work has passed into the public domain.
The droits d'auteur systems focus more heavily on the former, i.e., their rules seek to
protect the author, while copyright tends to protect investors. Currently, technology has
‘empowered’ third parties that have not contributed to the aforementioned creation or
investment efforts, allowing them easier access to protected cultural content without
respect for copyright regulations. In parallel, a series of philosophical and social
movements have evolved around the idea of ‘free culture’vi, which highlight a need to
make copyright legislation more flexible.
3.- Originality
Both systems require that, for the creation to be protected, it must be original.
European systems consider that originality stems from the imprint of the author's
personality, which requires a minimum of creativity or talent. The United Kingdom
extends such protection to any work that is the fruit of ‘effort, skill and judgement’; i.e.
that a creation not be a copy of a work produced by another person, therefore lacking
the minimum level of creativity. In the US, ever since a 1991 ruling examining the
protection of the contents of a telephone directoryvii, this has required more than mere
effort and the sweat of one's brow, i.e. a minimum of creativity is required to qualify for
copyright protection.
But these differences do not pose major problems in the international or global traffic of
cultural creations.
4.- Attribution of copyright to the creator
We could say that droits d'auteur systems have a more humanist orientation, that is,
given that the works emerge from the personality of the author, the protection focuses
on the creator as an individual, to whom the law personally attributes exclusive rights in
relation to the works that emerge from his person (exploitation rights, which the author
may assign to third parties) and other rights (moral rights, and to some extent royalties)
which the law declares inalienable and non-transferable (without prejudice to the
assignment of exploitation rights to third parties, who will be responsible for exploiting
the cultural content in the market).
On the other hand, copyright systems, which have a stronger commercial orientation,
permit the direct attribution of those exploitation and royalty rights (which are not the
same as moral rights) to third parties (natural or legal) that were not involved in the
creation process, that is, to companies that will be responsible for exploiting the works
commercially; i.e. they provide special protection to the investments made by a third
party in a creator's works for the subsequent commercial exploitation thereof in the
market. While it is true that the European systems, in respect of the fruits of ‘works’
created within legal persons (computer programmes, databases, works created by
salaried employees), have begun to recognise rights similar to those under copyright
law (in some cases leading to a new denomination of the rights as sui generis), the
possibility of conferring the copyright originally and directly to a person who was not the
creator reaches much further under the US copyright system which, according to the
concept of work made for hire,viii allows a third party who is not the person who created
the work to hold the copyright originally and directly. Accordingly, many of the creations
that are to be included in a collective work, such as an audiovisual work, are directly
attributed to the producer of the same, as it is this person that hires the creator to
create a work for him, leading to the loss of all rights—even moral rights—for the
individual who created the work made for hire.
What practical consequences does this difference entail? Conflicts may arise in the
international application of the regulations. For example, if a US film producer hires a
Spanish screenwriter or composer to work on a film under US law, which is usually
done under a ‘work made for hire’ arrangement, the author transfers all his rights to the
producer (or rather attributes them directly and originally), including the moral rights
and royalty rights. But since European droits d'auteur recognise the non-transferability
of moral rights and simple royalty rights (recovered by collective management
organisations), the author may assert these rights in Spain (by applying the law of the
country where the protection is sought), as Spanish law has declared them inalienable
and non-transferable. A US author could also claim them in Spain, despite having
never owned them according to the legislation of the country of origin of the work,
which contractually allows the direct attribution of the rights to someone other than the
creatorix. This can create complex situations such as the one that has arisen in
connection with the recovery in Spain, via collective rights management organisations
(SGAE, according to its Spanish acronym), of the royalties to which the authors of
audiovisual works are inalienably entitled as a result of the public broadcasting of those
audiovisual works in that territory, regardless of the country of origin of the film or the
nationality of its authors, pursuant to Article 90, paragraphs 3 and 4, of the LPI
(Spanish acronym for Spanish Intellectual Property Act)x. The SGAE sends the
royalties collected on behalf of the director and screenwriter to the Motion Picture
Association of America, which decides, pursuant to its own internal regulations, who is
entitled to receive this residual compensation; while the royalties owed to the composer
are forwarded by the SGAE to the rights management organisation of which the
composer is a member and with which it has registered the work. Therefore, under the
private international law regulations of Spanish legislation,xi US authors may receive in
Spain a royalty that is not recognised in their own country in the same way as in this
country.
5.- Formalities. Vesting of copyright. Registration and notice
In Spain, the droits d'auteur vests in the author as a result of the mere act of creationxii.
No formality or registration is required whatsoever, and although an Intellectual
Property Register does exist, the registration of a work only creates a ‘rebuttable’ legal
presumption (i.e. one which may be removed by evidence to the contrary) that the
person that registered it is the author and the work had been created, at least, on the
registration date.
In the United States, however, for many years the principles of compulsory registration
with the Copyright Office and the notice of copyright ownership were in effect.
The registration of a work with the Copyright Office—although after the US signed the
Berne Convention it ceased to be essential for the vesting of the copyright—continues
to be a necessary condition in order to prosecute infringements in the courts of the
United States and to claim certain damages, specifically statutory damages. Similarly,
the registration of a musical work will entitle the holder to receive the mechanical
reproduction rights accruing as a result of the manufacturing of phonorecords given
that, when applying for a compulsory licence for mechanical reproduction, the holder of
the registered right must be identified.
Is it advisable for a Spanish author of a musical work or phonorecord manufacturer to
register his work or sound recording in Spain? Although, as I have indicated, this step
is not essential for the vesting of the copyright of the author or producer in order to
prosecute infringements in Spain, it does create a presumption, a certain ‘air of
solvency’, which can be useful in the event of a dispute. And is it advisable for that
same Spanish author or producer to register it with the US Copyright Office? If the work
is likely to enter the US market or is likely to be infringed in that territory, in the event
that legal action must be taken in the US, it is essential that it be registered with the
Copyright Office.
As concerns the copyright notice and the inclusion of the symbol ©, this serves to
inform the public that the work is protected by copyright, to identify the copyright owner,
and to show the year of its first publication. Moreover, in the case of infringement, if the
work bears the appropriate notice, the courts disregard any possible defence
arguments based on the claim that the offender did not know that the work was
protected. US legislation no longer requires the use of a copyright notice, and currently
its inclusion does not confer any special benefits to the holder of the copyright. For
works first published after 1 March 1989, the use of the copyright notice is optional.
Before 1 March 1989, use of the notice was mandatory on all published works.
Although no longer mandatory, there continues to be a certain degree of inertia
regarding the insertion of such notice, as can be seen in US films distributed in Spain,
and by extension or ‘translation’, in many Spanish films.
6.- Protection periods
The differences in the copyright protection periods applicable in different countries
have always been a problem in the case of exporting works (in the material sense of
the circulation of the copies thereof) and the transnational implementation of these
rights: when a work was in the public domain in the destination country, but not in the
home country, it gave rise to difficulties in the recognition of rightsxiii. By means of
Directive 2006/116,xiv the EU harmonised the duration of the rights in all EU countries,
setting a term for the copyright protection of a literary or artistic work of seventy years
from the first day of the January following the date of the death of the author of the
work (or the death of the last author if it is a work produced by several authors). The
protection period of the related rights (rights of performers, phonorecord producers, film
producers and broadcasters) was fifty years from the date of the performance,
publication or communication of its fixation. This period was modified as a result of the
implementation in Spain of the Cliff Richard Directivexv by means of Act 21/2014, of
November 4, amending the Intellectual Property Actxvi, which extended it to seventy
years and established a sort of termination right for artists whenever the recording of
their performance was not exploited in a satisfactory manner.
The protection period of these rights in the USA is very complex, although simplifying
things, we can say that for works created after 1 January 1978, a period similar to that
of the EU has been established: 70 years after the creator's deathxvii. The Copyright
Term Extension Act of 1998 increased the duration of copyright periods in the United
States and extended them to include the lifetime of the author plus an additional 70
years following his death and, for works made for hire, to up to 120 years after creation
or 95 years after publication (another example of the commercial orientation of the
copyright system). Copyright protection for works published before 1 January 1978 was
increased by 20 years to a total of 95 years from the date of publication. This law is
known as the Sonny Bono Act, or the Mickey Mouse Protection Act, since it halted the
entry into the public domain in the United States of certain works that were about to
lose these rights under the previous law.
Does this misalignment of protection periods have practical consequences? As can be
observed, until the expiration of the periods established under the US system for works
created under the previous system (before 1978), and until such time as the 70-year
post mortem period has become standardised, problems could very well arise in the
event that it is deemed that a work or sound recording has entered the public domain in
Spain and, based on this assumption, certain attempts are made to exploit it without
the consent of the owner when such work continues to fall within the protection period
in the United States.
7.- Exceptions and limitations on copyright with respect to fair use
In order to safeguard the public interest in accessing protected works in certain cases,
the droits d'auteur and copyright systems have their own mechanisms, which differ
greatly.
Under the European systems, the droits d'auteur are not incompatible with the
requirement to recognise a series of limitations on the enjoyment thereof to safeguard
the rights of third parties to access and disseminate such works. These rights of access
to culture, education, freedom of information and expression, are recognised in the
Spanish Constitution and are protected under the LPI through the implementation of a
series of limitations. Directive 2001/29/EC of the European Parliament and of the
Council of 22 May 2001 on the harmonisation of certain aspects of copyright and
related rights in the EU information society, commonly known as the European Union
Copyright Directive or INFOSOC Directive, in addition to adapting the rights of
reproduction, public communication and distribution to the technologies of the
information society, also allows Member States to establish certain limitations on those
rights.xviii Under the Spanish LPI, the limitations on copyright are regulated by Articles
31 to 40, and mainly involve authorising certain acts of exploitation without the
requirement to obtain the prior consent of the rights holder. Therefore, the following
uses are all permitted (although in certain cases, subject to compensatory
remuneration): acts such as provisional reproductions, private copying for security
reasons, official procedures, use by disabled people, for the purposes of quotes and
illustrations in education, in current affairs projects, in the use of databases, in works
located in public spaces, in the broadcasting of works via cable and satellite, in the
reproduction, consultation and loaning of works at certain institutions, at official events,
religious ceremonies and in parodies. This closed list of exceptions is accompanied by
a principle to guide its interpretation (a rule known as the three steps): the application
of the limitation must be exceptional, it cannot conflict with the normal exploitation of
the works which it concerns, and it cannot unreasonably harm the legitimate interests
of the author. That is, certain acts which, in ordinary cases, would require the consent
of the holder of the exclusive rights are exempted from obtaining such consent and
may be freely performed without being considered an infringement.
In contrast to this limitations-based system, criticised for its rigidity and because it
involves a closed list, the copyright system includes the concept of fair use. This does
not involve a closed list of limitations, but rather the rights under copyright are subject
to a limitation and an exception to the exclusive right conferred by law to the author of a
creative work. Fair use is a principle recognised in the Act allowing the limited use of
content protected by copyright without the need for prior consent from the copyright
holders. The US Copyright Actxix does not include an exhaustive list of exceptions, as
under Spanish law, but rather cites examples such as criticism, parody, news reporting,
teaching and research, provided four balancing factors are respected:
-
the purpose and nature of the use, including whether such use is commercial or
is for non-profit educational purposes;
the nature of the copyrighted work (whether or not it is fictional, which involves
greater creativity);
the amount and substantiality of the portion used in relation to the work as a
whole; and
the effect of the use upon the potential market or the value of the copyrighted
work.
Is the fair use system ‘better’ than the limitations-based system? Answering this
question would lead to a long theoretical debate that would not produce clear
conclusions in favour of one system or the other, since although a priori the US system
may appear more flexible, it is also true that it creates a large degree of uncertainty
because it remains at the discretion of the judge in each particular casexx. However,
there are schools of European legal doctrine that seek a more flexible copyright system
in order to reduce the rigidity in the interpretation of the limitations.
Similarly, in the United States there are plans to introduce certain limitations that will be
operative alongside the fair use principle, in order to provide greater legal certainty, as
announced by Maria A. Pallante, the director of the US Copyright Office, who has
raised the need for a comprehensive reform of the US Copyright Act.xxi
II. COLLECTIVE MUSIC RIGHTS MANAGEMENT ORGANISATIONS IN THE
UNITED STATES
1. Introduction
In Spain, there are three collective rights management organisations representing the
various holders of the copyrights pertaining to musical works, and the performance and
recording thereof:
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SGAE, which represents the authors and publishersxxii.
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AIE, which represents the artists and performersxxiii.
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AGEDI, which represents the producers of phonorecords.xxiv
While there are three different rights holder societies, when it comes to the actual
practice of rights management, in order to achieve greater effectiveness, the AGEDI
and the AIE work together under a single umbrella and they both delegate to the SGAE
the management of the licences for certain public broadcasting rights.
These rights management organisations, therefore, have a monopoly in Spain in the
sense that each of them is the sole organisation authorised by law for the management
of a specific right. For this reason, an author, artist or producer has no choice other
than to become a member of whichever organisation is applicable to him for the
management of his rights, with no possibility to choose to become a member of
another management organisation (as none exist). This monopoly situation can
sometimes lead to conflicts in the area of free competition regulation, with the
competition authorities (Spanish National Markets and Competition Commission) being
responsible for correcting any abuses of dominant positionxxv.
In the United States, by contrast, this monopoly situation does not arise, at least for the
authors and publishers of musical works, because various management organisations
co-exist alongside one another, to which rights holders may choose to award the
management of their rights. This makes the tariffs and the functioning of these
organisations themselves more competitive. Unlike in most countries around the world,
where only one organisation exists to manage a certain class of droits d'auteur or
related rights, in the United States many organisations exist to manage a common right
of music composers (and publishers), that of public broadcasting (ASCAP, BMI,
SESAC). This allows authors to choose the specific organisation that best suits their
particular interests and to switch from one organisation to another once the term of the
exclusive contract signed with one of them has ended. Furthermore, in the US, a
different organisation exists for the management of mechanical reproduction rights
(HARRY FOX AGENCY). This may lead to a certain degree of complexity and higher
transaction costs when there is a desire to obtain from a certain rights holder (the
author/publisher of a musical work) a licence to undertake a specific act (e.g. digital
exploitation) that may affect various rights of the same rights holder (public broadcast
on the one hand, and reproduction and distribution, on the other), which are managed
by different management organisations. However, since the consolidation of digital
technology in the music distribution industry, movements have emerged that desire to
resolve this complexity on a practical level by means of agreements between
management organisations (points of single contact or multi-territory licensing), and
there have even been motions at the legislative level.
Each of the three music rights management organisations offers the same basic
services, with slight variations in the methods used to track the number of public
broadcasts of a particular work. Having these three societies in the United States leads
to stronger competition within the same market, and they are independently regulated.
In Europe, on the other hand, the governments authorise and regulate each
management organisation, with there usually being one per country, although in some
countries (Italy and Spain, for example) there is currently a trend towards establishing
other collective management organisations for different reasons in the various
countries, sometimes for reasons related purely to free competition to prevent the
abuse of monopoly positions and, in others, for political and regional reasonsxxvi.
2. Management of public broadcasting rights
In the US there are three collective music rights management organisations for the
management of public broadcasting rights: ASCAP, BMI and SESAC. Below, we
describe the role of each and the differences between them.
ASCAP is a non-profit organisation based in New York, Los Angeles, Atlanta, Miami,
Nashville, Puerto Rico and London. It is the only management organisation created in
1914 and controlled by the composers, writers and publishers of music, and includes a
Board of Directors which is formed of 12 writers and 12 music publishing companies
elected by the members of the society in two-year cycles. This organisation seeks to
ensure that each of its members is treated equally according to their situation, and to
redistribute the revenues produced from public broadcasting according to each area. In
order to become a member of a management organisation, it is usually necessary to
meet certain requirements: the prospective applicant must either have written or
published a commercial recording, or must have available a commercial score of the
composition, or even the demo of a reproduction of the said composition in a format or
at a venue licensed by the ASCAP, which provides sufficient information on the person
that wrote or published the work (e.g. on the radio or on television). A publisher who
wishes to become a member will have to verify the name of the company with the
ASCAP to ensure that it is not being used by any other publishing company, whether in
the US or abroad. Additionally, in order to manage the distribution of the publisher's
royalties, it is necessary to have an ASCAP publishing company. If all of these
requirements are met, registration may be completed online through the website
www.ascap.com. The registration fee for both composers and publishers is $50.
ASCAP has celebrity members such as Justin Timberlake, Beyonce, Stevie Wonder,
Quincy Jones, and others.
BMI (Broadcast Music, Inc.xxvii) is also a non-profit organisation based at very similar
locations to ASCAP, created in 1939 by radio industry executives following the
implementation of certain measures against ASCAP by the Department of Justice
pursuant to the anti-trust regulations (Sherman Act); it is headed by a board of 13
executives linked to the radio broadcasting industry and one BMI employee who serves
as chairman. The election criteria are similar to those of ASCAP. The way in which it
differs is in the registration criteria: registration as a composer is free and publishers
may register for a fee of $250. Another difference with ASCAP is that BMI does not
require a music publishing company in order to manage the distribution of royalties,
which may allow more freedom and make it more attractive for certain authors.
In order to become a member of any of the management organisations, it is necessary
to sign a contract. Each one offers a contract with a different duration. ASCAP has a
contract that is renewed on a yearly basis and allows authors or publishers to cancel
their membership and terminate their affiliation from one year to the next. The contract
may be terminated in any year, but a written 3-month notice should always be
provided. In the case of BMI, the agreements with authors are generally different from
those with publishers. Authors will usually sign a contract for a period of two years with
the possibility of renewing it every two years, which may be terminated by either party.
On the other hand, the majority of BMI's publishers sign contracts lasting five years,
with renewal every five years, which may also be terminated by either party. The
termination must be performed by certified mail and subject to a specific margin (e.g.
not before six months have passed from signing and at least 60 or 90 days before the
end of the contract).
SESAC (Society of European Stage Authors and Composers)xxviii is the third US rights
management organisation, founded in 1930 and the only one not open to the public for
membership. It is a small organisation where writers and composers must be invited to
join. They believe that through this policy they can achieve a higher degree of
professionalism in the writers (and their career) with whom the organisation has
decided to affiliate itself. In this way, greater interaction is promoted. On its website, the
SESAC states ‘With an international reach and a vast repertory that spans virtually
every genre of music, SESAC is the most innovative and technologically adept of the
nation’s performing rights organizations’. Its members, for example, include artists such
as Bob Dylan, Neil Diamond, Mariah Carey, and others. No payment is required to join
SESAC after having been invited. It can be assumed that the selection process used
ensures a high level of care, as well as fairness and equality for all members.
SESAC's payment method is very similar to that of ASCAP. The organisation records
all the activity on television, on radio and at venues of all sizes and descriptions. It
determines the payment of royalties based on the size or the venue at which the public
broadcast is made (the size of the venue or audience), by using information on the
licences for the act, as well as the number of performances.
As regards the contract, SESAC has a very open negotiations policy with future
members. The contracts guarantee SESAC the exclusive right to publicly use and to
license others to publicly use the works of authors and publishers worldwide. At this
rights management organisation, author and publisher contracts are usually for three
years, with automatic renewal. The contract may be terminated by providing a
minimum of 3 months' notice, but no more than six months before the end of the term.
The two most important factors to consider when joining a rights management
organisation (it is only possible to be a member of one at any given time, for the
duration of the contract) are, firstly, whether the chosen organisation will protect the
copyrights better than another organisation and which of the organisations will be the
most profitable in terms of the revenue generated both in the US and abroad. It is also
necessary to consider issues such as equal treatment of members or ease of
terminating the contract.
One element to consider is that these organisations tend to change their payment
policies, making it advisable to check on a regular basis for changes and updates to
the payment policies on the respective websites of each company.
It can be seen, therefore, that the collective rights management organisations of a
country such as the US are those best adapted to the different types of artists. It is
important to bear in mind all of the features that a collective rights management
organisation may provide, and to identify which of these best suits the interests and
needs of the potential member and his musical projects. The main difference that an
author will find with European rights management organisations is that the latter are not
only performing rights organisations but are also responsible for managing and
redistributing the revenues from copyrights in other fields, such as mechanical
reproduction, an area not covered by ASCAP, BMI or SESAC.
3. Management of mechanical reproduction rights
Once the author has authorised for the first time the mechanical reproduction or sound
recording of his work, any third party may produce new mechanical reproductions or
sound recordings by obtaining a compulsory licence and paying the relevant royaltyxxix.
This is what allows the recording of ‘cover versions’ according to law.
In 1927, the National Music Publishers Association established the HARRY FOX
AGENCYxxx to act as a source of information, a distribution centre and a licensing
management service for musical copyrights. HFA is now responsible for the
management of mechanical reproduction rights on behalf of its affiliated publishers for
the use of the music in hardcopy and digital distribution formats.
4. Rights of phonorecord producers and music artists
Additionally in the USA, on behalf of the holders of copyrights to phonographic
recordings (producers and artists), SoundExchangexxxi, a non-profit organisation,
collects the public broadcasting royalties from non-interactive digital broadcasts,
including by satellite, internet radio and cable music television.
It should be mentioned that in the US the performers and producers of phonorecords
do not have an exclusive right to authorise the public communication of their recordings
over terrestrial radio broadcasts, although they do have this right as regards digital
broadcasts, which is a right managed by SoundExchange. The non-recognition of the
right regarding public communication over terrestrial radio waves is being challenged in
the courtsxxxii.
5. Changes in licensing systems
Although the US Copyright Act was amended in 1995 to clarify the fact that it also
covers the digital distribution of phonorecords, the basic mechanism of the song-bysong licensing of mechanical reproductions—in force since the invention of the
phonorecord—needs to be updated because digital service providers have a variety of
different business models, ranging from streaming services to permanent music
downloads, or music together with other services or products. In recent years, some
music publishers have begun to license their mechanical reproduction and distribution
rights, and even their public broadcasting rights, directly to the digital services
providers rather than through the aforementioned collective rights management
organisations. Similarly, digital music services need to have access to the entire
repertoire of musical works available worldwide, as this is the normal scope of any
internet business. All of this justifies a reform of lawxxxiii.
III. CONCLUSIONS
Although they receive different names under the two systems examined, the degree of
protection of the exploitation rights—subject to certain nuances in the treatment of
royalties—is similar in Spainxxxiv and the United Statesxxxv (with the main peculiarity
being the differences in the regulation of the public terrestrial (not digital) broadcasting
right in the US), and both systems pursue the same goal, albeit with different
philosophies.
The differences are due more to the specific case-law decisions dependent on the
circumstances of the particular case in question, based on the values of the system
itself that the judiciary must preserve within the territory under its jurisdiction.
Therefore, in cases in which a possible transnational application of the rules is
expected in relation to a work, it is necessary to pay attention to the different
consequences that may arise as a result of the different legal systems.
However, a necessary reform of the laws of both legal frameworks must be conducted
to ensure that the business models developing on the Internet and, in particular, those
of the music industry, can be conducted lawfully and unhindered, which is a situation
that is not facilitated in any way whatsoever by the current systems of individual
authorisation or licensing for each of the rights holders depending on the exploitation
right in question, which has led to the development of business models on the
peripheries of the law, businesses which, once they reach a significant size, are
subsequently forced to closexxxvi.
Barcelona, January 2015
Enric Enrich
www.copyrait.com
This analysis can be extended to the ‘sister’ systems of the said systems, since the majority of
European and Latin American systems apply rights management regulations and mechanisms
similar to those of the Spanish system, although a number of differences exist between them
(e.g. differing conceptions of the separability of moral and economic authors’ rights under the
French or German regulations and the Spanish regulations).
i
ii
The authors’ rights/copyright regulations of both countries may be consulted in detail at:
SPAIN: Ministry of Culture http://www.mecd.gob.es/cultura-mecd/areascultura/propiedadintelectual.html
UNITED STATES: United States Copyright Office http://www.copyright.gov/
iii
For a summary of the issue from a legal perspective, see the introduction by Raquel
Xalabarder (2005). ‘Copyright y derecho de autor: ¿convergencia internacional en un mundo
digital? Presentación’. In: ‘Copyright y derecho de autor: ¿convergencia internacional en un
mundo digital?’ [monograph online]. IDP. Revista de Internet, Derecho y Política. No. 1. UOC.
[Date of search: 15/12/2014]. http://www.uoc.edu/idp/1/dt/esp/xalabarder02.pdf
ISSN 1699-8154
iv
See section 201 of the US Copyright Act: Ownership of copyright
(a) INITIAL OWNERSHIP. — Copyright in a work protected under this title vests initially in the
author or authors of the work. The authors of a joint work are coowners of copyright in the work.
v
Section 106A of the US Copyright Act:
(a) Rights of Attribution and Integrity.— Subject to section 107 and independent of the
exclusive rights provided in section 106, the author of a work of visual art—
(1) shall have the right—
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she
did not create;
(2) shall have the right to prevent the use of his or her name as the author of the work of visual
art in the event of a distortion, mutilation, or other modification of the work which would be
prejudicial to his or her honor or reputation; and
(3) subject to the limitations set forth in section 113 (d), shall have the right—
(A) to prevent any intentional distortion, mutilation, or other modification of that work which
would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation,
or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly
negligent destruction of that work is a violation of that right.
vi
See https://www.eff.org/
http://www.lessig.org/
https://stallman.org/
vii
Ruling Feist Publication Inc. v. Rural Telephone
http://www.law.cornell.edu/copyright/cases/499_US_340.htm
viii
Defined in Section 101 of the US Copyright Act: A ‘work made for hire’ is—
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a
part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as
a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if
the parties expressly agree in a written instrument signed by them that the work shall be
considered a work made for hire. For the purpose of the foregoing sentence, a ‘supplementary
work’ is a work prepared for publication as a secondary adjunct to a work by another author for
the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or
assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations,
maps, charts, tables, editorial notes, musical arrangements, answer material for tests,
bibliographies, appendixes, and indexes, and an ‘instructional text’ is a literary, pictorial, or
graphic work prepared for publication and with the purpose of use in systematic instructional
activities.
And the consequences:
§ 201. Ownership of copyright
(b) WORKS MADE FOR HIRE. — In the case of a work made for hire, the employer or other
person for whom the work was prepared is considered the author for purposes of this title, and,
unless the parties have expressly agreed otherwise in a written instrument signed by them,
owns all of the rights comprised in the copyright.
ix
A significant case in this regard was the claim by the heirs of John Huston against the
distribution in France of the film The Asphalt Jungle, which had been colourised by its
distributors, with the Cour de Cassation deciding that ‘No harm shall be done to the integrity of a
literary or artistic work, regardless of the State in whose territory the work was first disclosed’.
See a discussion of this issue at
http://www.rencontres-cinematographiques-dedijon.fr/archives/IMG/pdf/CR_La_protection_et_la_remuneration_des_auteurs_des_deux_cotes
_de_l_Atlantique-3.pdf
LPI, Sections 3 and 4, Art. 90.3. ‘In any case, regardless of what was agreed in the contract,
when an audiovisual work is exhibited at a public place upon payment of an entrance fee, the
authors referred to in paragraph 1 of this article shall be entitled to receive, from those who
publicly display said work, a percentage of the proceeds of such public display. The
remuneration paid for this purpose may be deducted by the broadcasters from any amounts that
they are required to pay to the licensors of the audiovisual work.
x
In the case of the export of the audiovisual work, the authors may assign said right in exchange
for a lump sum, whenever it would be impossible or extremely difficult for them to effectively
exercise the right in the destination country.
The operators of public halls or exhibition venues shall periodically make available to the
authors the remuneration collected. To this end, the Government may establish the appropriate
control procedures by regulation.
4. Projection or exhibition without an entrance fee, broadcasting to the public by any means or
process, both wired and wirelessly, including, among others, the exhibition of an audiovisual
work in the manner stipulated in Article 20.2.i), will entitle the authors to receive the appropriate
remuneration, according to the general tariffs set by the relevant performing rights organisation.’
xi
Article 163 of the Intellectual Property Act
1. Under this Act, protection will be granted to the intellectual property rights of Spanish authors,
as well as to the authors of other Member States of the European Union.
The following persons shall also enjoy these rights:
a) Nationals of third countries who are normally resident in Spain.
b) Nationals of third countries who are not normally resident in Spain, as regards works
published for the first time in Spain or within 30 days from their publication in another country.
However, the Government may limit the scope of this principle in the case of foreign persons
who are nationals of States that do not provide sufficient protection to the works of Spanish
authors in comparable circumstances.
2. All authors of audiovisual works, whatever their nationality, are entitled to proportional
remuneration for the exhibition of their works under the terms of Article 90, paragraphs 3 and 4.
However, in the case of nationals of States that do not guarantee an equivalent right for
Spanish authors, the Government may decide that the amounts paid in this sense by exhibitors
to performing rights organisations should be used for cultural interest projects to be established
by regulation.
3. In any case, nationals of third countries shall enjoy the protection accorded to them under the
international conventions and treaties to which Spain is a party and, failing that, they shall be
treated equally to Spanish authors whenever the latter, in turn, are treated equally to such
nationals in the respective third country.
4. For works whose country of origin, under the Berne Convention, is a third country whose
author is not a national of a Member State of the European Union, the protection period shall be
the same as that granted in the country of origin of the work but in no case may it exceed the
period provided under this Act for the works of the authors.
xii
Intellectual Property Act, Article 1 Vesting act: The intellectual property rights of literary,
artistic or scientific works are vested in the author as a result of the mere act of their creation.
xiii
See for example a commentary on the conflict caused by a number of works by Chesterton
http://barrapunto.com/articles/04/06/01/0837246.shtml
xiv
http://eur-lex.europa.eu/legal-content/ES/TXT/HTML/?uri=CELEX:32006L0116&from=ES
xv
See http://www.boe.es/doue/2011/265/L00001-00005.pdf
xvi
http://www.boe.es/boe/dias/2014/11/05/pdfs/BOE-A-2014-11404.pdf
xvii
See the following circular of the US Copyright Office explaining the complexity of the duration
of protection http://www.copyright.gov/circs/circ15a.pdf
xviii
See Article 5 of Infosoc Directive:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:ES:HTML
xix
Section 107 US Copyright Act: Notwithstanding the provisions of sections 106 and 106A, the
fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or
by any other means specified by that section, for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not
an infringement of copyright. In determining whether the use made of a work in any particular
case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature
or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a
whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made
upon consideration of all the above factors.
xx
Three highly interesting cases which analyse the ‘fair use’ doctrine:
- Parody in music, Case Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994),
regarding the song ‘Pretty Woman’ by Roy Orbison, parodied by 2 Live Crew
http://www.law.cornell.edu/supct/html/92-1292.ZS.html
- Appropriationist art: Patrick Cariou v. Richard Prince, conflicting decisions at first
instance and on appeal, and finally transacted
http://cyber.law.harvard.edu/people/tfisher/IP/2013_Cariou.pdf
- Authors Guild v. Google Books http://en.wikipedia.org/wiki/Authors_Guild_v._Google
‘While fair use can also be helpful to users of copyrighted works in appropriately tailored
circumstances, it requires an intensive application of the facts at hand and is therefore ill-suited
as a vehicle for bright line rules or more systematic activities of users. Nonetheless, exceptions
and the fair use provisions should be viewed as complements within the law’. Maria
Pallante, The Next Great Copyright Act, 36 Columbia Journal of Law & the Arts 315,
341(2013). http://www.copyright.gov/docs/next_great_copyright_act.pdf
xxi
xxii
http://www.sgae.es/
xxiii
http://www.aie.es/
xxiv
http://www.agedi.es/
xxv
See, for example, a recent sanction by the CNMC against the SGAE, which the latter
appealed http://www.cnmc.es/CNMC/Prensa/TabId/254/ArtMID/6629/ArticleID/112/La-CNMCmulta-a-la-SGAE-con-31-millones-de-euros-por-la-gesti243n-de-los-derechos-en-losconciertos.aspx
xxvi
In Spain, the Basque Country has broken the SGAE's monopoly by means of a project to
create a management organisation specific to this Autonomous Community. Through Royal
Decree 896/2011, of 24 June, the Basque Government, relying on Art. 12.4 and the second
transitional provision of its Statute of Autonomy, on the expansion of the services of the Federal
Government transferred to the Autonomous Community of the Basque Country, extends the
functions and services assumed by the Autonomous Community of the Basque Country in the
field of intellectual property law, transferring jurisdiction over the management organisations,
among others, from the State to the autonomous territory.
xxvii
http://www.bmi.com
xxviii
http://www.sesac.com
US Copyright Act Title 17, Chapter 1, Section 115(a)(2): ‘A compulsory license includes the
privilege of making a musical arrangement of the work to the extent necessary to conform it to
the style or manner of interpretation of the performance involved, but the arrangement shall not
change the basic melody or fundamental character of the work ...’
xxix
xxx
www.harryfox.com
xxxi
http://www.soundexchange.com
xxxii See the case Turtles / Sirius http://www.digitalmusicnews.com/permalink/2014/11/17/turtles2-sirius-0-broadcast-radio-next
xxxiii
See footnote XX to point I.7.
xxxiv
Article 17 (having developed the various rights in the subsequent articles) of the Spanish
Intellectual Property Act provides:
Article 17 Exclusive right of exploitation and its formats
The author is entitled to the exclusive rights of exploitation of his works in any format and, in
particular, the rights of reproduction, distribution, public broadcast and transformation, which
may not be exercised without his permission except in the cases provided for in this Act.
xxxv
Under the US system, copyright is enshrined in Section 106 of the US Copyright Act:
“Subject to sections 107 through 122, the owner of copyright under this title has the exclusive
rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion
pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and
pictorial, graphic, or sculptural works, including the individual images of a motion picture or
other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a
digital audio transmission.”
xxxvi
As happened recently with the closure of the Grooveshark service
http://www.documentcloud.org/documents/691437-umg-recordings-inc-v-escape-media-groupinc.html