Copyright Law

Introduction

The law of copyright falls within an area of law that seeks to
protect legal rights associated with creative effort. Copyright is in
fact, a property right, which subsists in "works." For example:
literary works, artistic works, musical works, sound recordings,
films and broadcasts are all works covered by property rights. Often copyright does not stand on its own,
such as when it may cut through the various protection offered by
Intellectual Property. IP law's main function is to deter others from
copying, or taking unfair advantage of the work or reputation of
others, and to provide remedies if such behavior occurs. It is made
up by copyright law, rights in performances, the law of confidence,
patents, registered designs, design right, trade marks, the law of
passing off and trade libel law as a whole. While sometimes it may
appear on the surface that copyright is unduly restrictive, the owner
of a work may have a remedy under a different scope in IP law, such
as in the law of confidence. An author is the person who created a
work, and would normally be the first owner of copyright (Note: an
employer could also own it, if his creation falls within the terms of
the contract of employment). A copyright subsists only for the
duration of either 70 years after the author's death or 50 years
after it was created, depending on the type of work in concern.

A right in copyright gives the owner the right to do certain things
in relation to the work in which would otherwise be unlawful to do (Note: certain acts carry criminal penalties), such as copying,
broadcasting, etc. Anyone else who does so in contravention of the
owner's wishes or otherwise without permission of the owner would
incur the infringement of the owner's copyright. The ownership of
the copyright is alienable, thereby it can be transferred or license
may be granted. Ownership of copyright is a highly profitable trade,
if reproduced and is successful in use. Therefore, copyrights are
jealously guarded.

A good example of how the rights of an owner could be transferred or
license may be granted would be to the reproduction rights
organizations. That which constitutes a licensing body (reproduction
rights organizations) is defined in S.116(2) CDPA, such as the
Performing Rights Society (henceforth referred to as PRS),
Phonographic Performance Ltd (henceforth referred to as PPL), and the Copyright Licensing Agency (henceforth referred to as
CLA). Before we continue, I shall attempt to give a brief outline on
each of these organizations, and then the societies as a whole. For
the sake of simplicity, I will henceforth refer to these reproduction
rights organizations interchangeably as merely 'the societies,' 'the
licensing bodies' and 'the collecting societies' collectively as a
whole.

The background.

The PPL is a corporate agency established by the record industry,
and is intended to regulate the use sound recordings by anyone who wants to
utilize them for the performance of sound recording,
broadcasting, or use in a cable program to members of the public.
In short, if you want to broadcast a sound recording in public, you
have to first get a license from the PPL. The PRS was formed in 1914
to assign the copyright in performance and broadcasting of musical
works, administer and that copyright, and to collect fees and
distribute them among members. Normally, the users of recorded
music in public will often need license from both the PPL and the
PRS. The PRS acquires royalties in return for licensing users music. The
CLS was formed in 1982 and deals with the field of copying. Due to the boom of technology, such as the
photocopying machine, scanners and printers, licensing is required.

To expect the owner of a copyright to issue licenses and then to have
to collect the fees themselves on every occasion from various user
groups or individuals would be rather inconvenient, not to mention
expensive. Imagine an owner of a sound
recording copyright having to grant licenses to certain individuals
or groups and following that having to personally acquire an ongoing
collection of fees from each and everyone who uses the work. This
inconvenience extends also to users. For example users would have to obtain license from EACH and every one of the copyright
holders. For the sake of argument let us say a hotel owner wants to play background
music in his lounge. Where would he find all the right owners of the music in the
first place? Also, a copyright owner would want and needs a strong
backing (especially in terms of financial
backing) from a powerful body to help defend his rights in the court
of law, if it comes to that. An individual copyright owner may not have the means to settle any woes in court. It would be a much easier world for a
copyright owner to live in, if he had someone to collect these
royalties from every individual user, rather than the user having to
obtain a license from each individual copyright owner. Therefore, the
existence of these societies is designed for the relief of both the copyright
owners, and to user groups.

Ideally, a right owner should first assign license of the relevant rights to a
collective licensing society and thus become a member of these
societies, which would then collect payments from user groups and pay and agreed amount of royalties back to the right
owner. Licensing bodies usually provide certain licensing
schemes (for example, blanket licensing) to user groups, the validity of which is arguably compulsory (for use
of music for example, that they do not want or need). The
societies negotiate or grant licenses, either as owner or
prospective owner of the copyright, or as the agent of the owner or
prospective owner, to user groups. This proves to
be advantageous to both the owners of the copyright, and to user
groups as they now only have to deal with one body, and even to get a
blanket license which allows the use of any work in control of
the society.

The use of blanket licensing is one way in which copyright owners may
seek compensation for works that are vastly distributed in public.
A good example would be in the case of copying or reproduction in vast amounts, which often takes place with the assistance of modern
technology.

Licenses

A license does not transfer the copyright in a work. Instead, the
owner of the copyright grants permission to the licensee to do what
would otherwise be an infringement of copyright. An incident
where the owner of the copyright grants a license to a collecting
society to administer and to procure royalties on their behalf for
the use of their work would serve as a good example of this concept.

Licensing Schemes

A licensing scheme is, as under S.116(1) of CDPA, is a scheme
outlining the classes of case in which the operator of the scheme,
or the person on whose behalf he acts, is willing to grant copyright
licenses, and the terms on which licenses would be granted in those
classes of case. Which is to say, a scheme would determine the
fees to be charged in respect to the works offered. The
owner of a copyrightable work may be willing to set certain
conditions on licenses to enable certain acts. For example:
the regulation of the photocopying of literary works (regulated by CLS).
Everyone knows such copying occurs and it is unrealistic to expect
every single individual who wishes to copy the work to apply for a
separate license. Neither is it feasible to assume that the copyright
owner would have the means to act effectively against such
infringements. The obvious solution would be again, the collecting
societies' role.

If there is dispute between the operators of the scheme, i.e. a
licensing body, and a person who claims he requires a license under
the scheme, either one of them can refer the matter to the Copyright
Tribunal, as under S.119 CDPA, basically to prevent abuse of the
monopolistic identity of the societies. The Tribunal can then either
confirm, or vary the scheme as is thought reasonable in the
circumstances. Other matters such as refusal to grant a license, or
simply a failure to procure one could also be referred to the
Tribunal.

Current Standing

Outside the United States of America, most collective licensing
societies are monopolistic in nature, and this is certainly the case
within the UK. This means that they are the only such collecting
society for works of a particular nature (for example only one for performers,
only one for phonographics, etc...). Therefore there would always be a
worry that these societies would act in an anti-competitive manner, such as by
charging excessive fees, or by controlling the proportion of music being
used by the PRS. However, in most countries, there are bodies enacted
to control these societies, and in the UK, there are two types, one at
a national level and the other at an international. Take note that
the UK is a member of both the Berne Convention and the Universal
Copyright Convention and is bound by the regulations of these
conventions.

There is of course general competition legislation which
legislates on a national level with the Competition Act 1998, which
set up the Competition Commission, enacted to rectify and to reduce
abuses. It is clear that in the UK, in relation to the
conflict between copyright exploitation and free competition,
copyright exploitation prevails. Licenses of right may become
available following the report of the Monopolies and Mergers
Commission if under S.144 CDPA'88, the public interest is being
or may be prejudiced due to its actions. Also, the UK adopts
legislation on an international level, through the EU Treaty of
Rome110. All 'Articles' mentioned shall be in relation to the Treaty
of Rome unless otherwise stated.0, Article 81111 Formerly Article 851
and Article 82112 Formerly Article 862, states that should
one behave in an anti-competitive manner or abuse the powers that
come with having a dominant position, action will be taken
against the relevant societies. Action may be brought in a Copyright
Tribunal113. Copyright Act 1956 set up the Performing Right Tribunal
to regulate the licensing of performing rights, and this Tribunal has now
become the Copyright Tribunal.3, which has the ability to modify or
alter collective licensing or in the European Court of Justice (ECJ).

Duties and Functions of Collecting Societies.

Key functions for the societies include governing requests to use copyrightable works. Interested parties must first obtain a license from the
relevant societies. The societies also monitor the extent of use,
and enforce the conditions of use of works by those who have
already obtained a license. Finally, societies also collect and distribute
royalties to copyright owners.

In order for societies perform their duties, including the enforcement and checking that people have licenses where
they should (collective licensing agencies for example) the PRS,
sends officers to perform searches. The societies also, on
occasion offers 'schemes' to user groups. Generally, one is not
obliged to join such a scheme, and is entitled to act as an
individual. However, in certain cases, one can be required or
compelled to join such a scheme or be bound by a society's decision(even if one is not a member), in the following
situations.

1)Educational copying
2)Public lending right
3)Cable transmission rights.

PRS v Hawthorne114 [1931] 1 Ch 8554
In this case, the defendant owned a restaurant in which he employed a
string quartet to play music to his guests while they ate. In
particular, they played a tune called 'In a Monastery garden'. The
PRS sent officers to conduct their searches, and found the defendant
not to have the relevant license for the performance of the music.
The defendant tried to argue that the music performed was not
published to the public, and merely restricted to his various guests.
The courts however, rejected that argument.

The collective licensing agencies also regulate the scope of members'
rights, and they bring test cases in situations where there are
any doubts. The following case illustrates on this point.

Phonographic Performance Ltd v AEI Rediffusion115 [1997] 3 All ER 560
5
In this case, a broadcaster was alleged to have infringed copyright,
as he did not have a relevant license for the copyrighted work. The broadcaster did in fact
have a license from the PPL to broadcast literary work. However, it
was common practice for broadcasters to keep a back copy of a pre-
recorded version of an 'incidental recording'. However, these
'incidental recordings' must be destroyed before 28 days is up.116
S.68 Copyright Act6 The broadcaster in this case did not do so. The
defendant (the broadcaster) argued that they had a 'dubbing right'
which qualified the license that they had obtained from the
plaintiffs (PPL). The Court of Appeal however, rejected their
argument and found that the defendant had no such right and in order to keep
copies they would have to pay additional royalties.

The increasing conflict between users and societies in recent
times in cases where the societies had sought to expand the coverage area for
a license, to areas which were not previously charged before, such as
in hotels, the charge for the use of music in areas such as
corridors, foyers and lifts had been but a recent addition. Another
illustration would be in the case of airplanes, where the charge for using copyrighted material has increased
drastically (by 300%). The argument put forth by the societies is
that music has now come to play a major role in an air package.

The Copyright Tribunal

The Copyright Tribunal has a wide jurisdiction. The main aim is to
provide balance between the conflicting interests of the user groups,
and the copyright owners or their agents (as in collecting
societies). It replaces the old Performers' Rights Tribunal with the
enactment of the CDPA'88.

Function of the copyright tribunal

A Copyright Tribunal is in effect an economic regulator and its
approach is a pragmatic one which relates to a given situation and
not precedent-like. It is fully facts-based and looking at past
decisions would not give one a good indication or prediction of the
any potential outcome. The 1998 Act however does offer some
guidelines.

What then can be referred to the Copyright Tribunal? Cases include
Incidents where a proposed or existing licensing scheme is under conflict
among the parties, where someone has been refused a license, where
there is dispute as to the terms of a license, an appeal against the
coverage of a licensing scheme or license, where royalties cannot be
agreed upon, and where the terms of a copyright license which has
become available as of right. Appeals on the point of law from the
decisions of the Copyright Tribunal can be made to the High Court.117
S.152 CDPA'887

The Copyright Tribunal in its assessment of the situation would have
to determine in varying circumstances what is reasonable. Under S.129
CDPA'88, the Tribunal has to have regard to look at other
schemes/licenses where conditions may be available, the terms and
conditions of those licenses and the availability of other schemes
that is offered. Under no circumstances can an unreasonable
discrimination be made between licenses, between one individual
licensee and a group with another. Also take note of the specific
guidelines stated in S.130-134 CDPA'88 in relation to specific works.
To give an illustration, in a situation where published editions of
works, the factors to be taken into account include the proportion of
the work to be copied and the nature of the use to which copies are
put. Under S.137 CDPA'88, extension of the licensing scheme period is
also possible, by the Secretary of State, provided there would be no
injustice in doing so.

The cost of bringing an action in the Copyright Tribunal tends to be
expensive, where a large financial area is involved. The commercial
importance of the subject matter of what is being licensed thereby
does play a large part. To illustrate, we shall turn to the case of:

Workings Men Club & Institute Union v PRS118 (1992) RPC 2278.
Historically, the PRS granted preferential tariff rate which is lower
than others for certain clubs, for example charitable, political,
etc... clubs where the cost of their license would be considerably
lower than that of other user groups. In this case, the PRS decided
to abolish such preferential treatment, and resorted to charging the
clubs and other user groups in accordance to a standardization of
rates. The PRS argued that this move is justified for the greater
commercial interest of the music industry. The clubs argued that they
couldn't afford it, as they are a declining and that they are not
interested in all the music that is being offered to them in the
scheme. In addition to that, they only use a small proportion than
what is offered, which is not a significant part of the package. The
courts found in favor of the clubs, based on the argument made in
regards to the scope of importance of music to these clubs, where
rates made should be proportionate to their usage. Here, the courts
only allowed the PRS to increase the cost of the fees based on
inflation rates.

What then would be relevant when taking into account similar schemes?
The courts seemingly has taken the stand on what is 'more
appropriate' as in the case below:

Virgin Retail Services v PPL 119 [2000] EMLR 3239
In this case, Virgin owns a chain of music stores in London, in which
they built an in-store radio to broadcast to all the chains. The
question in this case is what rate should they pay? PPL argued that
they ought to pay the same rate as those in the category of 'National
Narrow casters' but Virgin argued that they ought to pay lower rates,
under the category of 'Independent Radio Stations'. The courts found
in favor of Virgin, which they held to be the more appropriate
category, one in which is more similar to what Virgin is providing.

When relating to previous schemes, what the parties did in the past
would matter. First of all, in non-license elements, the first
question to ask is what role does (for example) music play in the
package that the customer of the societies expects? E.g. disco-
higher rate compared to peripheral ones

Secondly, looking at, market research/statistical evidence but in
which the Copyright Tribunal is very reluctant to endorse such
evidence unless it is very precise and clear and specific in its
content relating to the particular issue in question.

Thirdly, foreign schemes would be taken into account. What is being
charged in other countries in similar schemes? Looking at case law:

British Airways v PRS 220 [1998] EMLR 5560
The PRS in this case attempted to increase the cost of the in-flight
music licensing rate. One of the factors used to evaluate if the
charge is appropriate is through foreign licensing schemes. Schemes
from other EU countries such as SACEM221 France1 and GEMA222 Germany2
were used to compare. Past abuses and understatements of usage are
indications and good evidence that may result in higher rate
implications. Should the licensee be found to be guilty as such, the
courts are unlikely to look favorably upon them. The courts in this
case found such evidence of understatements, and granted increase of
rates to the PRS.

In relation to the use of part or small amount in proportion to the
scheme, would not normally be arguable either and to some extent is
reflected in tariffs charged to different user groups. For example,
where the PRS requires payment whole of a blanket license. If you are
from a specific group, this argument is not generally accepted.
Taking the case below for instance:

PRS v Boizot 223 [1999] EMLR 3593
A hotel owner is being charged the standard rate for the use of live
music in hotels. He argued that it was unjust because in practice,
most performers plays non-copyrightable music in which license is not
required, and thereby the amount that is charged them should be based
on proportion of the copyrightable. The courts rejected this
argument, as it is not practical to work a scheme out in such a way
due to the many complications that it will bring.

This is a clear indication that it would mean a degree of "winners
and losers" where there is bound to be those who would use more, and
others less. This is in effect, a form of rough justice for
simplicity's sake.

One advantage would be s.136 CDPA'88 where benefit can be obtained
from statutory right of indemnity. In most cases it is not mandatory
for right owners to join schemes and there is bound to be certain
music not in the scheme. If a user reasonably believes that the work
would be within the scheme and the user is later sued, indemnity can
be claimed to the relevant collecting societies. The burden thereby,
is on the societies to warn and advise users.

Where a license is refused or terminated, one can challenge that
decision in the Copyright Tribunal. It is within the power of the
European Commission or an individual litigant to challenge that
decision either on the ground of Article 81224 Formerly Article 854
the 'Anti-competitive agreement' or Article 82225 Formerly Article
865 the 'abuse of a dominant position'.

Ministre Public v Tournier 226 [1991] 4 CMLR 2486
It is a criminal offence in France to broadcast music in public
without license from SACEM, and in this case a disco was being
prosecuted for non-payment. The defendant argued that the rates
offered by SACEM was too excessive, particularly when compared to
other EU countries and also, they intended to contract directly with
foreign societies (particularly in the UK or the US) as it would be
cheaper for them. Argument relates to SACEM abusing their dominant
position. The courts then referred the matter to the European Court
of Justice, where it was held that SACEM being in a dominant position
does not automatically mean an abuse. Firstly, in comparing with
national rates, it was found that in principle, should the national
rates be higher in real terms as compared to other EU countries, it
is an abuse unless SACEM can justify their rates, which is a question
of fact for the national courts. Secondly, the refusal to allow
foreign contractual societies was looked on favorably, as by looking
at the structure of the societies, it would in practical terms not
work. Direct contracting can cause a lot of complications, for
example, how can SACEM then administer their duty? Reality meant that
one would have to contract with your national society. The matter is
then referred back to the French courts to resolve.

The Copyright Tribunal will have the chairman or a deputy chairman of
the tribunal and at least two other members sitting in a, and
decisions are made by majority vote.227 S.148 CDPA'887 There is also
a right to appeal on a point of law from the tribunal to the High
Court.228 S.152 CDPA'888

Scope of a Copyright Tribunal

Compulsory licenses can be granted by order of the Secretary of State
in certain instances229 See S.66 CDPA'88 and exceptions to it S.143
CDPA'889. The Copyright Tribunal also has the power to settle the
royalty payable if the parties cannot agree to an appropriate
royalty. Licenses as of right may also be available where the MMC
decides that public interest330 See S.142 CDPA'880 is in jeopardy,
where it has been or may be prejudiced because of the conditions that
was set out in licenses, by restricting the use of the work or the
right of the copyright owner to grant further licenses, or because
the copyright owner refuses to grant licenses on reasonable terms, a
remedy may be provided where a Minister331 See S.144 CDPA'88
1 may act on the Commission's report and cancel or modify the
conditions or provide that licenses shall be available as of
right.332 S.144 CDPA'88, so long as the Bern Copyright Convention and
the Universal Copyright Convention is not contravened.2 The terms of
the license would then, be set by the Copyright Tribunal, without the
need for an agreement between the parties.
The Minister only has the power to exercise the powers available if
he is satisfied that to do so does not contravene any Convention
relating to copyright to which the UK is a party, to ensure that
there would be no conflict with the International Conventions.333 See
S.144(3) CDPA'883

Monopolies, and the Problems.

The provisions in the Copyright, Designs and Patents Act 1988334
Henceforth would be merely referred to as the CDPA'88.4 (CDPA'88) are
designed to prevent the abuse of monopoly powers by copyright owners.
The problems with contradicting rights begin with the cries of more
rights for the users, and the monopolies who want to retain their
powers. The fact that they are monopolies already gives rise to the
threat of an abuse, the question is, is the law as it stands enough
to protect user rights? Is the law as it stands leaning for or
against user groups?

A typical situation of which a monopoly power is acquired, concerns
the needs and wants of users while the monopoly has an ability to
restrict or control the commodity in question. This would affect the
price of the commodity, as the monopoly alone would determine it, and
can increase or reduce the supply of the commodity in question. A
balanced situation would be when the consumer/user can choose, but in
the case of monopolies, the consumer no longer has a choice, but must
succumb to the wishes of these monopolies whether they like it or
not. In that sense, injustice seems to have already occurred, due to
the imbalance of bargaining power where a situation of 'take it or
leave it' occurs. The law should, thereby be around to make sure that
injustice does not occur. One argument for the monopoly would be the
efficiency that can be provided by a single source, rather than
subjecting them to the rules of competition. Especially in the case
of the collecting societies, this would bring a more efficient
administration.

We see the potential disadvantage of power over a market in where
there is very few successful cases, which as a result gives rise to a
power in which may sometimes be unjustified even given the special
public policies335 For example, the ability to better administer the
system.5 that is the reason for its creation in the first place. Yet,
we must balance that with the need to keep user groups in line, with
the administration that is offered by the monopoly. That is to say,
while there is a danger of the creation of injustice by the existence
of a monopoly, there is still need to assess the degree in which the
monopoly's interest would be jeopardized if such right were not
accorded to them.

In the case of Manx Radio, who were dissatisfied with the amount of
'needle time' being offered by PPL was given success by the
Performing Rights Tribunal through the increase from a 25% to 50%
broadcasting time. While the threat of abuse is always there, the law
is available to accord the appropriate reasonability to the
situation.

Copyright owners have to deal with a single existing society if they
want to exploit their work efficiently. This in itself gives rise to
the possibility of the monopolies discriminating one member to
another, in relation to different membership rules to the
distribution of royalties for certain classes of members or works.
The society is also in a position to charge exorbitant royalties

This condition may be solved through mechanisms such as a direct
price control, or through statutory or compulsory licensing accorded
by the law. In theory at least, this might be the solution to comply
the societies to accept a return at a rate below in which he would
have accepted if their monopoly status stood. In practice however,
this mechanism may prove to be ill favored, especially in relation
to the rising of cost in the administration of legal expenses.
The Monopolies and Mergers Commission (MMC) plays a part in upholding
justice where public interest has been, or may be prejudiced by
allowing licenses as of right in certain circumstances. This may be
on the basis of the restrictive use of the work or the right of the
owner to grant licenses or on the basis of a refusal to grant a
license.

The largest of cases brought under Article 82336 Formerly Article 866
concerns collecting societies. The Court of Justice has determined
that a mere fact of a dominant position does not necessarily arise to
an abuse of that dominant position, as it may be justified on the
point of reasonable behavior.

Impact of EU and International Rules.

The idea of a common market as strongly emphasized by the E.U. is the
result of a political decision, to promote trade competition without
the hindrance of any legal or fiscal barriers. In the Treaty of
Rome337 All 'Articles' referred to shall relate to the Treaty of Rome
unless otherwise stated.7, Article 81338 Formerly Article 858 deals
with restrictive practices between enterprises and Article 82 339
Formerly Article 869deals with abuse by firms of their monopolistic
position. They are the imposing machinery for the allocation of
resources by market forces in which would cause efficient firms and
sectors to expand at the expense of others. Article 82 prohibits the
abuse of a dominant position in so far it may affect trade between
Member States.

The central issue to Article 82 for our purpose is whether a
collecting society shall be forced to grant a license if a refusal to
do so implies an abuse of a dominant position. From the case of
Maxicar v Renault 440 [1990] 4 CMLR 2650case and the Volvo v Veng 441
[1989] 4 CMLR 1221case, we reach a conclusion that the courts does
not accept the mere fact of being in a dominant position shall amount
to an abuse of a dominant position within the context of Article 82
and a refusal to grant a license shall not automatically amount to an
abuse either. So long as such conduct shall affect trade between the
member states it shall be prohibited and in this situation the grant
of a 'compulsory license' shall be granted. However, it is clear from
the cases that there must be more than a mere proof of a dominant
position and refusal to grant a license. While the cases given above
are not in relation to copyright, however the stand would be the
same.

Reform?

The new Draft EU Copyright Directive Common Position has already been
drafted, and is now awaiting Parliament for a co-decision procedure.
The 1997 Green Paper forms the foundation of this new draft, and is
likely to affect UK law in the middle of the year 2002. There has
been much campaigns by user groups who protest that the EU gives too
much attention to the right of owners/agents of owners and not enough
to the user groups. For the UK position, the 1988 Act already meets
most of the proposal laid out in the Treaty, and should not require
radical changes in the Act. The original version of the proposal was
heavily criticized in the area of Distribution and Copying Rights
because it was argued, that there has been insufficient defenses
being provided for users though the main concern was for the Internet
Service Providers (ISP). The main concern of our paper, on the
question of monopolies by collective licensing societies were not
addressed, though substantial groups in the EU Parliament still
argues the number and range of defenses that should be expanded
before the paper it is approved. However, there is probably
insufficient strength there to stop the directive from going through.

Thereby it could be assumed that either the EU does not consider
collective licensing agencies being monopolies a problem, due to
sufficient statutory control, or they have yet found a better
solution. In my estimation it is likely that the former would be
truer, as while there is in a sense a real fear of a monopolistic
power who might take advantage of its dominance, the statutory
controls as it stands allows challenges to be made to the Copyright
Tribunal and the ECJ should any injustice occurs.

Two world organizations, the World Intellectual Property Organization
(WIPO)442 Established in 1967 as a specialist agency of the UN and is
responsible for the administration of the Berne Convention.2 and the
World Trade Organization (WTO)443 Administers trade related aspects
of IP rights agreement.3 have been charged with developing and
harmonizing international copyright relations. The UK is also a
member of the Berne Convention, thereby subject to the rules laid
out.

Conclusion

It is a known fact that the existence of collecting societies are a
must, due to their importance in administration of copyright. They
bear a heavy burden, to ensure that users are complying with the use
of a license where it would be appropriate to do so. Failure on their
part would allow the copyright owner to sue them in breach of their
duty. Also, they may face litigation from users, where should they
fail to warn them appropriately what is covered under their various
schemes where compensation to the user would be a result of being
sued by the copyright owners.

The threat of an abuse of their position while is fearful, the need
for them and the need for simplicity in terms of administration may
warrant their existence justified, provided sufficient statutory
controls are properly enforced. From the cases we have seen, it can
be safe to conclude that while the collecting societies does indeed
seem to be in a position far beneficial than that of the copyright
owner who gives license to the collecting society to handle the
exploitation of their work, and that of the users who seemingly has
very little say in determining in their terms of the license in which
they have to obtain from the collecting society, we can see from case
law that the mere fear has more grounds than real threat. There is
sufficient deterrence from within the law to control these
monopolistic collecting societies. See for example the case of
Workings Men Club & Institute Union v PRS444 (1992) RPC 2274 discussed
above where it can be seen that no proposals deemed inappropriate or
unjustifiable can pass through the Copyright Tribunal for one.

The existence of copyright law in the first place is to protect
owners of the copyright, in which they should be able to do whatever
they wish of the work that they have created, and no laws should
impinge them from their rights to their creation. The collecting
societies in acting as a licensee from the copyright owners indeed
has stepped into the place of the copyright owner in relation to the
exploitation of their work once they have entered into a contract to
change their relationship to a licensor-licensee situation. The
collecting society in effect merely takes the power as assigned to
them to do their job, so why should they be discriminated because
they are a licensing body, and not a true owner in the truest sense
of the word? Remember, an owner to a copyright is in its form a
natural monopoly where they may do as they like with the work that
they have created. Where they have certain rights to exclude others
from access to, or use of, his property, or to decide whether or not
to authorize others to use it and set the conditions for any such
use. Why then should such monopolistic powers be stripped from
collecting societies?

However, solid criticisms may be formed in regards to the way the
Copyright Tribunal is being handled, as their decisions appear to be
inconsistent, and rather difficult to predict maybe due in partial
cause to the extreme variation from one circumstance to another. One
very important essence of the law is certainty, and in failing to
establish clearer consequences as in relation to certain conduct
spells disaster for everyone and the system may cause injustice. I
would suggest, should reform be needed in any way, is to lay out
better, and more clearly, the proper guidelines and the consequences
to each failure to rise up to the standard as proposed by the law.

The law as it stands appears satisfactory, though in relation to
economic rights, the user groups perhaps are at the wrong end of the
pencil. However, so long as the law succeeds in preventing injustice
in the practice of their profession, as in the case of the collecting
societies administering licenses, it should not be a question of law
to decide the rules of economics, demand and supply. Increase in such
rights has to be attributed to them by either Parliament, or by
international means, whether by the European Community or the
International Conventions in which UK is a part. Till then, the law
should stand as it is.

1.) The Return of the Shadow Legacy - druid
2.) Rampant Piracy on the Sea of Information - xearthed
3.) Napster, MPAA, AOL, and how stupid people in power will kill the first amendment - unfrgvnme
4.) Copyright Law - Aleanor
5.) Hacking vs Sysadmining - madirish
6.) State of the Hack Awards #4 - madsaxon
7.) Somethings Never Change - UberGeek
8.) It's Not about Change - darlene
9.) Programming your PSX (part 1) - OZONE