INTRODUCTION
This article will discuss the copyright laws of six major markets and the applicable European Union "Directives". The Article does not deal with so-called adjacent or distinct rights in sound recordings as such.
Canada
- The Right of Reproduction
- The Right of Communication
- Canadian Transmissions
- Liability Issues
To be covered, a telecommunications communication must also be public.27 A communication is public "when it is intended for individual members of the public at different times, whether or not they choose. Accordingly, a communication can be public when it is given to individuals to members of the public at various times.' 30.
France
The Right of Representation
Users who have access to a protected work on the Internet at a time and in a place of their choosing are members of the public. Making music available on the internet therefore requires a specific license for the reproduction of the musical works.
French Transmissions
The Court also noted that "the service provider had the ability to access and control the content" posted on its server.7 Therefore, the Court found that service providers have a general obligation to. The ISP must be "vigilant," but it is not obligated to monitor all content hosted on its servers.
Germ any
- The Right of Exploitation
- The Right of Distribution
- German Transmissions
- Liability Issues
- The Right of Public Performance
- The Right of Transmission
- The Right to "Make the Work
- Japanese Transmissions
- Liability Issues
A copy of the entire musical work is not created while listening to it in streaming mode. The musical work is never complete in the user's computer memory; sounds are simply transmitted without ever being saved to the hard drive. Once the work is digitally reproduced and placed on a web page or other server, the right to "exploit" the work comes into play.
MUSIC DOWNLOADS ON THE INTERNET .. the public would take place in Germany when the server transmitting the download is located in Germany.10 0. The concept of performance is thus put aside because the music download on the Internet-simultaneous or not. - is included in the definition of public transmission in Article 2(1)(viibis) of the Act. As a result, the copyright holder's exclusive right is broader; includes the right to authorize any public transmission such as broadcast, cable or interactive transmissions.
United Kingdom
U.K. Transmissions
Works.3 This is a difficult question to answer because of the complexity of the role played by each participant in the transmission. On the other hand, the provider's liability may be involved if it operates the equivalent of a cable service - with some degree of control over the content made available. It is also worth nothing that the service provider can be held responsible for authorizing an exclusive act performed without the consent of the copyright owner.
34; Authorization means the grant or purported grant, which may be express or implied, of the right to do the act complained of, whether the grantee is intended to do the act on his own behalf or solely on the grantor's behalf ."'141 A person is deemed to consent to an act when he asks another to do so and consents or grants another the right to do so.142 However, a person is not held liable for infringing simply by to make available the means to perform the infringing act, even though the provider knows that the means will be used unlawfully.143 Finally, the fact that the infringing act takes place outside the United Kingdom is not relevant if permission is granted Thus, in the simple example of a photocopier provided by a library, a member of the public who uses the photocopier to make a copy is clearly the person copying the work, and not the librarian. In the complex case of sending a fax, where the sender automatically has a copy made by the recipient's external fax machine, it is suggested that the sender is the person responsible for copying the work sent, and not the person in question. control over the receiving fax machine.
United States
- Important Concepts of U.S
- The Right of Reproduction
- The Right of Public Performance
- U.S. Transmissions
- EUROPEAN DIRECTIVES
This in turn led to the issuance of a rate payable under a compulsory license for the delivery of digital phonograms. 34:1363 public performance rights in the United States, there are compelling arguments to support the view that certain online music downloads do not constitute a public performance of the underlying musical work. Perhaps the strongest argument in favor of using the public performance right is in the text of Article 115(c)(3), which says yes.
due to the time lag scenario, the user could watch or listen to the downloaded work at the time of the download. Conversely, if the right to import is required to be exercised, the doctrine of first sale may apply. Applying the mechanical reproduction right to copies made not by the sending organization but by the recipient may seem like a stretch of the imagination.
In light of the above, it can be concluded that the supply of digital gramophone records constitutes distribution. The Directive on Copyright in the Information SocietyThe main objective of the Directive on the harmonization of certain.
The Directive on Copyright in the
There are two 'directives' in the European Union that will have a direct impact on the conclusions drawn in the study of the law of its member states, including France, Germany and the United Kingdom. Once finally adopted, all EU Member States will have a set time frame within which they must adapt their national legislation to the directives. The Copyright Directive gives copyright owners the exclusive right to authorize or prohibit any communication to the public of their works, including making them available to the public in such a way that members of the public can individually access them from a specified location. and have access to the works at a time. chosen by them.2 18 A similar right is granted to performers in respect of recordings of their performances; producers of phonograms for their phonograms; film producers for the original and copies of their films; and finally broadcasters for recording their broadcasts.2 19 It appears that the right to make available, as described here, includes all forms of online broadcasting of music.
As regards the right of reproduction, the right is granted to all works of authorship and a similar right is granted to performers, producers of phonograms, film producers and broadcasting organizations in relation to the objects already mentioned in relation to the right of communication to the public.2 20. It appears that The directive means that the distribution right it recognizes applies only to tangible objects. 221 et seq., "the question of exhaustion does not arise in the case of services, and especially in the case of online services.
The E-Commerce Directive and
PUTTING IT ALL TOGETHER: ANALYSIS AND
Comparative Analysis
Right of Public Performance/
The application of this exclusive right to the use of music in streaming mode creates little doubt when the user does not select the songs; it is comparable to broadcasting. In Canada, placing a copyrighted work on a server - at least on a publicly accessible one - is a restricted act, even though the actual communication to the public only occurs at the time of the user request.248 The Canadian Copyright The Council specifically rejected arguments that no work was transmitted based on the transformation - for example encoding - of the "work" during transmission.249 In France, the right of "representation", which can be considered a functional equivalent of the right of communication to the public for our purposes, similarly applies to the posting of a work on a website.250 In Germany, the traditional right of "exploitation" already includes a right regarding broadcasts of works, which probably of applies to Internet broadcasts. In Japan, the right of public performance does not apply, but a right of transmission exists and applies to both streaming and downloads, with slightly different legal bases.251 Under U.K.
It is unclear whether the same can be said for pure downloads.252 In the United States, listening to music in streaming mode is likely a public performance. There are solid arguments for and against the conclusion that a pure music download is also a public performance.2 53. The EU Directive contains a new right of communication to the public, which includes the right to use the Internet and other interactive networks.2 4 .
Liability Issues
Applicable Law
1410 VANDERBILTIOURNAL OF TRANSNATIONAL LAW (VOL. 34:1363 users-including end-users-in their territory.26 The latter may be even more true for collectives based in countries where there are likely to be more users than servers. In Canada, servers in this country must be licensed independently of the user's location because the communicatively restricted act takes place at the server's location However, the Copyright Board may assert jurisdiction over foreign servers whose primary market is Canada.26 5 In France, the law of the country "for which" is claimed protection.
This can apply to both servers, as several court cases have already shown, and end users.266 In Germany, in accordance with rules dealing with satellite transmissions, the law of the server governs, at least until the EU directive is fully implemented .2 67 In Japan and the United Kingdom, the location of the server also appears to be the determining factor.2 68 U.S. In the directive on copyright in the information society and the directive on e-commerce,27 1 the European Union decided not to apply the principle of the country of transmission of the broadcast that applies to satellite transmissions and applies to the law of the country of reception. The practical implementation of this principle in the fifteen EU member states - and the twenty-seven other European countries that are obliged to adapt their laws accordingly in terms of Accession Agreements - has not yet begun.
The Scenarios
If the consumer does not listen during the download, there is doubt about the application of the public performance right. The business model chosen by American Records does not change the nature of the rights to be cleared. The fact that the service is interactive or quasi-interactive does not change the nature of the legal relationship itself with respect to the underlying musical work.
This is obviously the weak point of any response based on the country of the server - which is the practice for satellite transmissions. When implementing the principle that transmissions should be licensed in the country of the server, a revised version of the so-called Bogsch theory should apply. See above note 222; see also the Commission's welcomes. Council Adoption of the Directive on Copyright in the Information Society, available at httpJ/europa.eu.int/.
