Copyright Notes

Copyright in the cyberspace: the right to communicate the work to the public

Copyright and the public

Paul Goldstein in "Copyright’s Highway: From Gutenberg to the Celestial Jukebox" made the point that copyright is evolving towards the model of the celestial jukebox: you will be able to access every kind of works from every place on Earth and, by paying a fee, you will then be able to access the work (nowadays: Spotify or Netflix). He said, "Copyright is a law of public places and commercial interests."

Commercial interests

What are these commercial interests?

• Traditional commercial exploitation of copyright works: reproduction (making copies of the work > printing press) and distribution of these works >> how copyright was actually born as a separate legal order in the 18^th century!
• The expansion of reproduction technologies: advent of mechanical music (music sheets)/electronic (vinyl and gramophone)/digital > this trajectory of reproduction technologies meant two things: reproduction became easier and applicable to different categories of works (music and then movies) + it became cheap (this is the move between electronic reproduction to digital reproduction >> impact on copyright). The second trajectory is even more important >> advent of mass media communication technologies (radio, TV and now Internet) > it enabled new forms of commercial exploitation. No longer reproduction and distribution BUT reproduction and communication to the public!!

With the advent of the mass-media communication, reproduction has become a trivial element of commercial exploitation. What is more important is the communication to the public > listening to music nowadays: we do use streaming services, we are not making any copies, so reproduction has become almost irrelevant!

Addressing new forms of commercial exploitation

How does copyright address this "new" form of commercial exploitation?

The Berne Convention (1886) included rights (1960s) that have to do with communication to the public (Art. 11 > Certain Rights in Dramatic and Musical Works):

• Authors of dramatic, dramatico-musical works shall enjoy the exclusive right of authorizing:
  1. The public performance of their works, including such public performance by any means or process (> RIGHT OF PERFORMANCE).
  2. Any communication to the public of the performance of their works (> RIGHT OF COMMUNICATION OF THE PERFORMANCE).

Paris revision of the Berne Convention

Art. 11bis > Broadcasting and Related Rights

• Authors of literary and artistic works shall enjoy the exclusive right of authorizing:
  1. The broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds, or images. >> broad and technological neutral definition of "broadcast"!
  2. Any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one. >> it means the rebroadcasting of the initial broadcast!
  3. The public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work. >> another expansion of the public communication!

Certain Rights in Literary Works

Art. 11ter

• Authors of literary works shall enjoy the exclusive right of authorizing:
  1. The public recitation of their works, including such public recitation by any means or process.
  2. Any communication to the public (Art. 11bis > includes broadcasting > radio drama) of the recitation of their works.

Summary of the Berne Convention

To summarize these three articles of the Berne Convention, what does the Convention say? There are two forms of communication:

• Public performance > performance = it is any presentation or execution of a work in non-material form (reciting a poem or a drama, perform a music or a song) >> public performance = performance to live audience (performing a song live or reciting a drama in a theater) > right of the composer and of the performer!
• Communication to the public > = transmission to a distant audience > right of the broadcasting organization, and if the transmission is not a transmission of a live performance but is the transmission of a sound recording of a performance, then there are also the rights of sound recording producers!

Neighboring rights

Legislator started asking: "If the author is entitled to have these exclusive rights, what about the performers?" >> nowadays, we know the song thanks to the performer, we might not even know the author! The performer is the person that makes a song popular! The performer should be entitled to some rights as well. What about the company that makes the sound recording? They invest capital, they invest in new performers, they take risks. So, there is an economic argument to give a share of these rights to the producers of sound recording! Since broadcasting is the most important way of exploiting works, should the broadcasting organizations also have some share of these rights (because if the radio and the TV did not exist, if there were no people that invested in technology and skills to make broadcasting programs, then neither the authors nor the performers or producers would have economic benefits)? >> born of the "NEIGHBORING RIGHTS" (rights to all these persons who are not the author > namely the performer, the phonogram producers, the broadcasting organizations) > their rights are not the same as those of the author in terms of scope and duration but still, they do have rights as well. This makes communication to the public more complicated to understand than reproduction!

Impact of the Internet

INTERNET >> it introduces some complications because it is in some way similar to radio and TV but in other things it is different. Now, before the advent of the Internet, you could listen to a song on the radio only when the radio decided to transmit the song, nowadays we can listen to any song only by clicking a button on our phones. This is on-demand transmission, a form of communication to a distant audience that did not exist before > one of the challenges that Internet has posed to traditional copyright and the legislative response was 1996 WCT and WPPT > implemented by the EU in the Directive 2001/29 "Information Society" and in the Directive 2000/31 "e-commerce" (sec. 4); implemented by the US in the 1988 DMCA Title 1 + Title 2 + Amendments to statutes of other WIPO Contracting Parties!!

WCT and WPPT

WCT, Art. 8 – Right of communication to the public: "Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them" >> legal technology neutral definition of "interactive on-demand" communication (no mention of the word "Internet" due to law’s neutrality)!

WPPT, Art. 10 – Right of Making Available of Fixed Performances: "Performers shall enjoy the exclusive right of authorizing the making available to the public of their performances fixed in phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them".

Art. 14 – Right of Making Available of Phonograms: "Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the public of their phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them".

EU Law

EU LAW >> InfoSoc Dir., Art. 3 – Right of communication to the public of works and right of making available to the public other subject-matter: to know it by heart!!

1. MSs shall provide authors with the exclusive right to authorize or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
2. MSs shall provide for the exclusive right to authorize or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:
   • For performers, of fixation of their performances
   • For phonograms producers, of their phonograms
   • For the producers of the first fixations of films, of the original and copies of their films
   • For broadcasting organization, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.

The right of communication to the public in the EU

The right of communication to the public in the EU as EFFECT of the implementation of legal obligations (Berne Convention + WCT):

1. It covers "all communications to the public not present at the place where the communication originates" >> this reflects the principle of the Berne Convention >> public communication = distant communication!
2. It covers "any transmission or retransmission of a work to the public by wire or wireless means" – InfoSoc Dir., Rec. 23 >> more specific!
3. It includes the right of "making available to the public" by way of "interactive on-demand transmissions" – InfoSoc Dir., Rec. 35 >> typical way of having access to works on the Internet + TV on-demand, delivered by a cable or satellite or wire!
4. It is not subject to the rule of EXHAUSTION (unlike the distribution right!!!)/FIRST SALE DOCTRINE (US) – InfoSoc Dir., art 3(3) >> it applies to physical distribution of works: it means that the right of distributions exhaust after the 1st lawful sale of the copy >> it is lawful to resell used books and to resell CDs, DVDs, any physical copy incorporating a copyright work >> you can give it to a friend as well! Exhaustion does not apply only to the copyright field but also to trademark (it is lawful to sell second-hand clothes or electronic devices). BUT it is not lawful to resell your own downloads (not an E-book, or a movie you have lawfully downloaded, an iPod with downloaded tracks)!!
5. Not included? >> "Conventional" forms of communication to the public, like live presentation or performance (basically public performance!!).

Rights of others than the author

Rights of the other persons than the author > Rental & Lending Directive (2006/115)

Art. 8 – Broadcasting and communication to the public:

1. MSs shall provide for performers the exclusive right to authorize or prohibit the broadcasting (live broadcasting performance!) by wireless means and the communication to the public of their performances, except where the performance is itself already a broadcast performance or is made from a fixation.
2. MSs shall provide a right in order to ensure that a single equitable remuneration is paid by the user if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public, and to ensure that this remuneration is shared between the relevant performers and phonogram producers. MSs may, in the absence of agreement between the performers and phonogram producers, lay down the conditions as to the sharing of this remuneration between them.
3. MSs shall provide for broadcasting organizations the exclusive right to authorize or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee. >> example: a TV company has no rights with respect to the broadcasting of their broadcasts in the hall of a hotel but they have a right to authorize the broadcasting of the TV program in a place where people pay an entrance fee (absence of TV in private houses and so people to watch TV went to bars!!)

Case law: Radio broadcasting

Case law >> Radio broadcasting of a recorded song:

• Authors: Ennio Morricone (music), Ghigo De Chiara & Maurizio Costanzo (lyrics)
• Performer: Mina
• Phonogram producer: RIFI Records

Let’s say that Radio 110 wants to broadcast the song:

• Authors: exclusive right (say yes or no >> InfoSoc Dir., Art. 3.1)
• Performer and Phonogram producer: right to receive equitable remuneration from the broadcasting of the song (R&L Dir., art. 8.2)

Both administered in Italy by Collective Management Organizations: SIAE (authors)/SCF (related right of the performers and phonograms producers) > so, the radio should pay a fee to these two collective management organizations to be lawfully entitled to broadcast this song.

Broadcasting organization: Radio 110 > exclusive right to prohibit wireless rebroadcasting & communication in public paying places (R&L Dir., art. 8.3)

Case law: Internet streaming

Case law >> Internet streaming of the same song:

• Authors: Ennio Morricone (music), Ghigo De Chiara & Maurizio Costanzo (lyrics)
• Performer: Mina
• Phonogram producer: RIFI Records

Let’s say that Spotify wants to make the song available to their subscribers:

• Authors: exclusive right (say yes or no >> InfoSoc Dir., Art. 3.1)
• Performer and Phonogram producer: exclusive right (say yes or no >> InfoSoc Dir., Art. 3.2)

In theory, authors and the other persons are more powerful in this sense because this is actually the scope of the InfoSoc Directive, so to give high levels of protection to them. In practice, the record company owns all the rights and negotiates a royalty fee (very advantageous for the company but very disadvantageous for authors and others) with Spotify!

Case law: live versus on-demand transmission

Case law:

First case > Court clarified the difference between live and interactive on-demand transmission >> case about a notarized internet live streaming of sport events (hockey). Sport events (originality) do not attract public, and so the only enforceable right is the right of the broadcast? > it only extends to making available and there is no general right of public communication (limited right to communication in spaces where you pay a fee).

The Court said that "making available" is intended to refer to interactive on-demand transmission only and broadcast live on the internet does not fall within this category. So, national courts cannot construe the making available right as to include live streaming. Broadcast organizations serve a right to make fixations of their broadcast available to the public but NOT a general right of communication to the public.

Case law: hotel room TV sets

Second case >> defining the scope of communication to the public. It is a case about television sets installed in hotel rooms > one of the first cases when the court expanded on the definition of communication to the public.

The question is whether the owner of a hotel, that has television sets installed in all rooms, engages an act of communication to the public, which means that he has to ask the authorization and pay copyright holders for this act. The Court took this case and gives some definitions of "public communication" means >> "...considering not only how many people have access at the same time, but also in succession": important to consider it in order to determine if it is a "public" + "new public" is important + the user also provides an additional service which is performed within the obtaining of benefits by the author (of course you pay more for a hotel room with a TV set installed). So, the court concluded that the transmission of the TV signal in hotel rooms is an act of communication to the public which requires further authorization from the copyright holder.

Case law: importing TV decoders

Third case >> notion of "new" public is addressed! Case about UK pub owners who bought TV decoders from Greece and they were using them in the UK to display football matches of the English Premier League. The business model was that the rights of the Premier League were cheaper in Greece than in the UK. So, someone was importing TV decoders from Greece to the UK and they were selling them at the cheaper price than the price that was charged by the Premier League in the UK.

The Court said that there was nothing wrong in importing TV decoders from another EU country because of the principle of free movement of goods (which prevails over the right of the copyright holder to license a copyright work) but the question was whether it was an act of communication to the public. So, whether by displaying TV broadcast in a pub, you engaged in an act of communication to the public. The court said "yes" because this is transmitted to a new public, a public which was not taken into account by the authors of the protected works when they authorized their use by the communication to the original public. The reasoning is that the authors communicated the works to the Greek public (TV decoders were meant for the Greek audience). By importing these decoders in the UK, you are not doing anything illicit as long as you watch it in your home, but when you display it to the public, you are doing it to a new public, a public that was not taken into account by the authors of the works when they authorized the first communication > a new communication to a new public which requires a new authorization!

Case law: broadcasting phonograms

INT. COPYRIGHT > TOPIC 7 > 9 April 2021 "Copyright in the cyberspace: the right to communicate the work to the public"

Case law: dental practice

Case law:

The question was whether the broadcasting of phonograms as background music in a private professional dental practice is a communication to the public, and if yes, then doctor Del Corso should have paid a license to SCF to broadcast the music as a background. The Court said that in this case there is no communication to the public. It applied the Rafael Hoteles and FAPL criteria (there must be a public, a communication and it must be to a new public) and, as to the definition of the public, the court said that in a dental practice, the setting did not fulfill these conditions.