1

Document’s referenceAuthor : EventCity, JJ/MM/AAA – JJ/MM/AAAAOriginal language : English

© CISAC

Copyright Licensing

©CISAC 2

Subject Matters of Copyrights 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

©CISAC 3

Subject Matters of Related RightsSubject Matters of Related Rights

• Rome Convention - The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations - self-explanatory regarding the subject matter protected

• All SAARC countries, except Maldives are Berne Members; therefore need to ensure protection for all the above subject matters

©CISAC 4

Subject Matters of Copyright & Related Subject Matters of Copyright & Related RightsRights

• 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 5

Subject Matters of Copyright & Related Subject Matters of Copyright & Related Rights – cont’dRights – 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

©CISAC 6

Subject Matters of Copyright & Related Subject Matters of Copyright & Related Rights – cont’dRights – 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

©CISAC 7

Bundle of Exclusive Copyrights

• 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

©CISAC 8

Summary of Related RightsSummary of Related RightsPerformers Phonogram

Producers Broadcasting Organisations

1 Broadcasting or communication to the public of a “live” performance 2 Recording an Unfixed performance 3 Reproducing a fixation of the performance [Art 7]

1 Right to authorise/ prohibit the direct or indirect reproduction of phonograms [Art 10] 2 Payment of equitable remuneration for broadcasting and communication to the public of phonograms

1 Simultaneous rebroadcasting of thei r broadcasts 2 Fixation of their broadcasts 3 Reproduction of unauthorised fixation of their broadcasts or of lawful fixations for illicit purposes 4 Communication to the public of their television broadcasts against payment

©CISAC 9

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

©CISAC 10

• Methods of Dealings in Copyrights:Sale

Assignment

Licence

©CISAC 11

Dealings with Copyrights & Related Rights

•SaleCopyright 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?

©CISAC 12

Dealings with Copyrights & Related Rights

•AssignmentLegal 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 …”

©CISAC 13

• “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 …]

©CISAC 14

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

©CISAC 15

Page 15

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)

©CISAC 16

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, ...

©CISAC 17

Page 17

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) …

©CISAC 18

Page 18

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 …”.

©CISAC 19

Page 19

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… ”

©CISAC 20

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.

©CISAC 21

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.”

©CISAC 22

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 …”

©CISAC 23

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

©CISAC 24

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

©CISAC 25

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 …”

©CISAC 26

Compulsory Licences

• S35 – Copyright owner may give written licence for use of work

• S36 – Statutory licensing provisionFederal 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

©CISAC 27

Licensing Usage of Works - Collective Licensing Usage of Works - Collective Management OrganizationsManagement 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

©CISAC 28

Licensing Usage of Works - Collective Licensing Usage of Works - Collective Management OrganizationsManagement 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

©CISAC 29

Licensing Usage of Works - Collective Licensing Usage of Works - Collective Management OrganizationsManagement 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

©CISAC 30

Using CopyrightsUsing 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

©CISAC 31

Using CopyrightsUsing 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

©CISAC 32

Using CopyrightsUsing 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

©CISAC 33

Works Published on the InternetWorks 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

©CISAC 34

ECONOMIC IMPORTANCE OF COPYRIGHT & ECONOMIC IMPORTANCE OF COPYRIGHT & RELATED RIGHT INDUSTRIESRELATED 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

©CISAC 35

ECONOMIC IMPORTANCE OF COPYRIGHT & ECONOMIC IMPORTANCE OF COPYRIGHT & RELATED RIGHTS INDUSTRIESRELATED 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%

©CISAC 36

Economic Value of CopyrightsEconomic 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