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Published : November 05, 2010 | Author : pradnya
Category : Intellectual Property | Total Views : 22616 | Rating :

  
pradnya
Pradnya Pahurkar Law professor
 

Copyright Societies

INTRODUCTION OF COPYRIGHT LAW:
Copyright has the important place in Intellectual Property Rights. Copyright is a fundamental area of the intellectual property rights which is important not only with respect of works authored by the individual but also because it includes different kinds of works. Copyright is the exclusive right to do or to do certain acts in relation to literary works, dramatic, musical and artistic works, cinematograph film, sound recording and computer databases.

Copyright law is designed to prevent copying of existing physical material in literature and art. The objective is to protect the writer or artist from the unlawful reproduction of his material. The law does not permit one man to make profit and to appropriate to him that which has been produced by labour, skill and capital of another. In order to prevent from all this or to prevent from the violation of the rights of the creative authors, there are Copyright Societies which takes care of the authors rights and all the things related to copyrighted material.



INTRODUCTION TO COPYRIGHT SOCIETIES:
Copyright Society is a legal body which protects or safeguards the interest of owners of the work in which copyright subsist. The Copyright Societies gives assurance to the creative authors of the commercial management of their works.

The authors of creative works licence a publisher to publish the work on a royalty basic. This also leads to infringement of the work anywhere in India or abroad therefore it is extremely difficult for the owner of the work to prevent from such infringement. To overcome such difficulty owners of Copyright works have formed Societies to licence their works for performance or communication to the public or issue copies of the work to the public. ‘Copyright Society’ means a society registered under Section33 (3).

The Copyright societies are also authorized to watch out for infringement of the copyright and take appropriate legal action against the infringers.

FUNCTIONS OF A COPYRIGHT SOCIETY:
The copyright Societies discharge the following functions:
1. It grant license of the Copyright in the work for reproduction, performance or communication to public.
2. It locates the infringement of the Copyright and initiates legal proceedings.

To regulate these activities of such copyright societies Sections 33 to 36A have been enacted under the Copyright Act 1956.

STATUTORY PROVISIONS:
Section 33(1) provides that no person or association of person allowed to carry on the business of issuing or granting licenses in respect of any work in which Copyright subsists or in respect of any rights conferred by the Act except under a registration.

However the owner of Copyright in his individual capacity will continue to have the right to grant licenses in respect of his own works with his obligation if any as a member of the registered Copyright Society.

An application may be made to the Registrar of Copyright. Every application should satisfy the conditions. And then the Registrar shall forward the application to the Central Government which may, having regard to the interests of the author and other owner of rights under this Act, the interest and convenience of the public and in particular of the group of persons who are most likely to seek licenses in respect of the relevant rights and the ability and professional competence of the applicants, register such association of persons as a Copyright Society subject to conditions as may be prescribed.

Central Government shall not ordinarily register more than one Copyright Society to do business in respect of the same class of works.

Section 33(4) states that the Central Government, if satisfied that the Copyright Society is detrimental to the interest of the owners of rights concerned. Then in this case the Central Government cancel registration of such society after such inquiry as may be prescribed.

As per the Copyright Rules, 1958:
1. Conditions of the submission of applications for registration of Copyright Societies:
Any association of persons whether incorporated or not, consisting of seven or more owners of copyright (hereinafter referred to as ‘Applicant’) formed for the purpose of carrying of business of issuing or granting licenses in respect of any class of works which is copyrighted or in respect of any other work conferred by the Act. In this case they may file with the Registrar of Copyrights an application of Form II- C. The application then is submitted to the Central Government for grant of permission to carry on the business and for its registration as a Copyright Society.

An application under the above provision shall be signed by all the members of the Governing Body and the Chief Executive of the Applicant.

2. Conditions for grant of permission to carry on copyright business:
As per rule 14 of the Copyright Rules, 1958, an applicant of a Copyright Society shall not be eligible to be considered for such registration unless:
i. After the Applicant is established or it creates a commitment on it to deal with only copyright business and other activities ancillary thereto and
ii. The Applicant is willing to comply with the provisions of the Act and the rules made there under.

3. Documents accompanying applications:
Rule 14 A of Copyright Rules, 1958, every application made under rule 12 or rule13 shall be accompanied with by:
i. A true copy of the application by which the Applicant[1] is established or incorporated.

ii. Consent of all the members included in the application to act as members of the Governing Body[2] of the Application.

iii. A declaration containing the objectives of the Applicant, the bodies through which it will function and arrangements for accounting and auditing.

iv. An undertaking to the effect that the instrument[3] is established or incorporated provides for conforming the same to the provisions of the Act and these Rules.

4. Conditions for registration of a Copyright Society:
According to Rule 14 B of the Copyright Rules, 1958:
i. When an application for registration is submitted to the Central Government through the Registrar of Copyrights, the Government may, within sixty days from the date of its receipt by the Registrar of Copyrights either register the Applicant as a Copyright Society.

ii. The application shall be rejected if the following grounds are present, but only after giving the Applicant an opportunity to being heard:

a) The Applicant has no professional competence to carry on its business or has not sufficient funds to manage its affairs; or

b) There exists another Copyright Society registered under the Act for administering the same class of works and its functioning well; or

c) The Central Government has reason to believe that the members of the Applicant are not bonafied copyright owners or they have not voluntarily signed the instrument setting up the Applicant and the application for registration; or

d) The application is found to be incomplete in any respect, reject the applications.

i. After the registration of the Copyright Society by the Central Government, the Registrar of the Copyrights shall issue certificate of Registration in Form II- D under his hand and seal.

ii. On and from the date of its registration as specified in the Certificate of Registration, the Copyright Society shall be entitled to commence and carry on the permitted copyright business in the name by which it has been so registered.

5. Procedure for holding inquiry:
According to Rule 14 C of the Copyright Rules, 1958:
On the complaint of the Registrar or any of the owners of the rights, has reason to believe that a Copyright Society is being managed detrimental to the interests of the owners of rights concerned , it may after making an inquiry in the following manner, cancel or suspend the registration of the Copyright Society made there under these rules, namely ------The Central Government by sending a copy of the complaint to the society shall ask for a written statement of its defense within a specified time.

i. After receiving the written statement, the Central Government if satisfied that a prime facie case, it shall order an inquiry by appointing an Inquiry Officer.

ii. The Inquiry Officer shall conduct an inquiry based on the principles of natural justice.

iii. He take the assistance of other such as chartered accountant, an audit officer etc.

iv. On the basis of the report of the Inquiry Officer, the Central Government shall take action and if the complaints are found true, the Government shall cancel the registration of the Copyright Society.

6. Suspension of Registration:
Under Rule 14 D of the Copyright Rules, 1958, the Central Government may suspend the registration of the Society and appoint an administrator. According to Rule 14 E administrator has powers to administer the Copyright Society.

7. Cancellation of registration:
Rule 14 F of the Copyright Rules, 1958, the registration of the Copyright Society as such may be cancelled by the Central Government

i. If any of the particulars furnished in the application for registration is found to be false.

ii. Or if the society is being in a manner detrimental to the interests of the owners of rights concerned.

iii. Or if it fails to maintain its accounts and get them audited persistently.

iv. Or it utilizes its fund for purposes other than the copyright.

Statutory provision:
Power of copyright Society:

According to Section 34 (2),
(a) A Copyright Society may accept from an owner of the rights exclusive authorization to administer any right in any work by issue of licenses or collection of license fees or both.
(b) The owner of rights has the right to withdraw such authorization without prejudice to the rights of the Copyright Society under any contract, subject to certain conditions prescribed.

The Copyright Society may also enter into any agreement with any foreign society or organization administering rights corresponding to rights under the Act to entrust to such Society or organization the administration in any foreign country of rights administered by the said Copyright Society in India and vice versa. This is subject to the condition that there is no discrimination in regard to the terms of licenses or the distribution of fees collected between rights in Indian and foreign works.

Subject to such conditions as may be prescribed the Copyright Society has the following power:
i. To issue licenses under Section 30 in respects of any rights under the Act.

ii. To collect fees in pursuance of such licenses.

iii. To distribute such fees among owners of rights after making deductions for its expenses.

iv. To perform any other functions consistent with the provision of Section 35 i.e.; control over the Society by the owner of rights.

As per Copyright Rules, 1958:

8. Conditions subject to which a Copyright Society may accept authorization and an owner of rights may withdraw such authorization:
According to Rule 14 G of the Copyright Rules, 1958, a Copyright Society may accept from an owner of rights or his duly authorized agent, exclusive authorization to administer any right in a work. If such owner or such agent enters into an agreement, in writing with the Copyright Society specifying the rights to be administered, the duration for such rights are authorized to be administered the quantum of fees agreed to and the frequency at which such fees shall be paid by the Copyright Society in accordance with its scheme of Tariff and Distribution.

The owner of copyright shall be free to withdraw authorization in case the copyright society fails to fulfill its commitment as laid down in the agreement, but with a prior notice of sixty days and without prejudice to the rights under the agreement.

9. Conditions, subject to which a Copyright Society may issue licenses, collect fees and distribute such fees:
According to Rule 14 H of the Copyright Rules, 1958,

A Copyright Society may issue licenses and collect fees only in those works and for the prescribed period they are authorized to administer in writing by the owners of the rights. Copyright Society may issue license and collect fees in accordance with its Scheme of Tariff.

The distribution of fees collected shall be subject to a deduction not exceeding fifteen per cent of the collection on account of administrative expenses incurred by the Copyright Society.

10. Procedure for obtaining approval of owners of rights for collection and distribution of fees, etc:
According to Section 14 I of the Copyright Rules, 1958, every Copyright Society shall maintain the following registers at its Registered or Administrative Office.

i. A register of owners of copyright and other rights to be called the ‘Register of Owners’ in respect of which the Copyright Society has been authorized by the owners to issue or grant licenses.

The Register shall contain the:
a) names of the owners,

b) their addresses,

c) the nature of rights authorized to be administered by the Copyright Society,

d) date of publication of the work,

e) the dare on which the Copyright Society becomes entitled to and the duration of such rights.

ii. A Register to be called the “Register of Agreements” containing a copy of every agreement entered into by the Copyright Society with owners for the purpose.

iii. A Register called “Register of Fees” containing particulars of fees and mentioning the name of persons or organizations from whom the fees have been realized and the date of realization.

iv. A Register to be called the “Disbursement Register”. It contains the details of disbursements, made to each owner of copyright, category wise mentioning the name of the owner, nature of his copyright and the date and disbursement made to him.

11. Tariff Scheme:
As per Rule 14 J of the Copyright Rules, 1958, Copyright Society shall frame a scheme of tariff to be called the ‘Tariff Scheme’.

It helps to setout the nature and quantum of fees or royalties which it purposes to collect in respect of such copyright or other rights administered by it within three months from the date on which it has become entitled to commence its copyright business.

12. Distribution Scheme:
Rule 14 K of the Copyright Rules, 1958, the Copyright Society shall frame a scheme to be called the “Distribution Scheme”.

It setouts the procedure for collection and distribution of the fees or royalties specified in the Tariff Scheme within three months from the date on which Copyright Society has become entitled to commences its copyright business. Any distribution under the Distribution Scheme shall, as far as possible, be in the proportion to the income of the Copyright Society from actual use of the work or works of each owner of rights.

13. Meeting of Copyright Societies:

As per Rule 14 L of Copyright Rules, 1958:
i. After the preparation of the Tariff Scheme and the Distribution Scheme, the Copyright Society shall call a general meeting of the owners of rights whose names are recorded in the ‘Register of Owners’ to approve the same.

ii. A notice shall be annexed with a copy of proposed Tariff Scheme and Distribution Scheme, shall be given to each owners of rights of the meeting, of not less than twenty- one clear days.

iii. The above notice shall specify that any owner of rights who objects to the Tariff Scheme or Distribution Scheme shall be entitled to withdraw the authorization given to the Copyright Society to administer any right in his work.

iv. The Copyright Society shall keep the record of the owners of rights who gave have given their approval and those who have rejected thereto.

v. Approval by owners of rights for the Schemes shall be by a majority of such owner present in person.

vi. The quorum for a general meeting shall be one- third of the members.

The Copyright Society shall not amend an approved Tariff Scheme or Distribution Scheme except with the consent of the owners obtained at a subsequent general meeting called for the purpose.

Statutory provisions:

Payment of remuneration by Copyright Society:
A Copyright Society administering the rights in a particular works for the owners of rights throughout India. The Central Government then may appoint that Society for the purposes of framing a scheme for determining the quantum of remuneration payable to individual Copyright owners. This is done in regard to the number of copies of the work in circulation. This will be subject to the rules as prescribed by the Government in this behalf. Such scheme will restrict the payment to the owners of rights whose works have attained a level of circulation which is reasonable. (Section 34 A).

Control over the Copyright by the owner of rights:
Every Copyright Society will be subject to the collective control of the owner of rights whose rights it administers in India.

Foreign Societies are exempted from this power.

It shall in such manner as may be prescribed:
a) obtain the approval of such owners of rights for its procedure of collection and distribution of fees,

b) obtain approval of the owners of rights for utilization of any amounts collected as fees for any purpose other than distribution to the owners of rights,

c) and provide to such owner regular full and detailed information concerning all its activities in relation to the administration of their rights.

d) All fees distributed among the owners of rights should, as far as may be, distributed in proportion to the actual use of their works. (Section 35).

As per Copyright Rules, 1958:

14. Annual general meeting of owners of rights:
As per the Rule 14 N of the Copyright Rules, 1958:
Every Copyright Society shall, within a period of twelve months (12 months) from the holding of the meeting in pursuance of sub-rule (1) of Rule 14 L, hold a general meting of owners of rights, herein called the annual general meeting of owners. However, a special meeting of the owners of rights may also be held, if considered necessary.

The meetings of owners of rights shall be held in the town or city in which Registered or Administrative office is situated and the notice calling the meeting shall specify the time, date and address of the venue of the meeting.

15. Documents to be presented in the annual general meeting of owners of rights:
According to Rule 14 O of the Copyright Rules, 1958, every Copyright Society shall place before its annual general meeting the following documents, namely:
i. An up-to-date list of the owners of rights, their names and addresses as recorded in the Register of owners maintained by the Copyright Society.
ii. Audited accounts of the society for the previous year,
iii. The Tariff Scheme
iv. The Distribution Scheme,
v. A statement approved by its Governing body (by whatever name called) setting out a full and detailed account of all its activities during the previous year; and
vi. Details of the budget estimates for the succeeding year and a programme of action for the succeeding year.

Statutory Provisions:
Submission of returns and reports:

Every Copyright Society should submit to the Registrar of Copyright such returns as may be prescribed.

Any officer duly authorized by the Central Government in this behalf may call for any report and also records of any Copyright Society for seeing that the fees collected are being utilized or distributed in accordance with the provision of the Act (section 36).

As per Copyright Rules, 1958:
16. Returns to be filed by the Copyright Societies with the Registrar:
Under the Rule 14 P of the Copyright Rules, 1958. Every Copyright Society shall file a return called the Annual Return with the Registrar of Copyrights within one month from the conclusion of each annual general meeting of owners setting out the following details, namely:

i. The date of the annual meeting of the owners held immediately preceding the filing of the Annual Return, the number of owners attended the meeting in person or by proxy, and the minutes of such meeting;
ii. The up- to – date list of the owners of rights , their names and addresses as recorded in the Register of owners maintained by the Copyright Society;
iii. Audited accounts of the Copyright Society;
iv. The Tariff Scheme;
v. The Distribution Scheme;
vi. A statement approved by its Governing body or Board of Directors setting out a full and detailed account of all its activities during the year in relation to the rights of the owners.

Statutory Provisions:
Rights and liabilities of the Performing Right Societies:
This provision relating to Copyright Societies will not affect any rights or liabilities in any work in connection with the Performing Right Society which has accrued or were incurred on or before the day prior to the commencement of the Copyright Act, 1994 or any legal proceedings in respect of rights and liabilities on that day. (Section 36).

As per Copyright Rules, 1958:
17. Application for registration by performing rights society:
According to Rule 13 of the Copyrights Rules, 1958, a performing rights society functioning in accordance with the provisions of Section 33 on the date immediately before the coming into the force of the Copyright (Amendment) Act, 1994, and desirous of carrying on the business as a Copyright Society under the Act.

Then it shall submit an application in Form II- C to the Registrar of Copyrights as early as possible but not later then ten months from the date of commencement of the said Act.

Statutory Provisions:
Accounts and Audit:
Every Copyright Society must maintain proper accounts and other relevant records and prepare an annual statement of accounts.

They have to maintain the accounts in the form and the manner as prescribed by the Central Government in consultation with the Comptroller and Auditor General.

The accounts of each Copyright Society in relation to the payments received from the Central Government will be audited by the Comptroller and the Auditor General of India.

And if expenses incurred in connection with such audit, then it will be payable by the Copyright Society to the Comptroller and the Auditor General.

The Comptroller and the Auditor General or any other person appointed by him in connection with the audit of accounts has the right to demand the production of books, accounts and other documents and papers and to inspect any of the officers of the Copyright Society for the purpose only of such audit.

The accounts of each of the Copyright Societies as certified by the Comptroller and Auditor General together with the Central Government who shall cause the same to be laid before each House of Parliament.

As per Copyright Rules, 1958:
18. As per Rule 14 M of the Copyright Rules, 1958,
Every Copyright Society shall maintain proper accounts of the fees and royalties collected in a financial year, payments made out of such collections to the owners of rights and other expenditure incurred for meeting administrative expenses and related matters with the approval of the owners or rights. However, a Copyright Society shall not spend more than fifteen percent of its collection towards its administrative expenses.

Every Copyright Society shall get its accounts audited by a Chartered Account annually.

COPYRIGHT SOCIETIES IN VARIOUS COUNTRIES:
INDIA:
Copyright Society:
A copyright society is a registered collective administration society. Such a society is formed by copyright owners. The minimum membership required for registration of a society is seven. Ordinarily, only one society is registered to do business in respect of the same class of work. A copyright society can issue or grant licenses in respect of any work in which copyright subsists or in respect of any other right given by the Copyright Act.

Functions of Copyright Society:
A copyright society may:
1) Issue licenses in respect of the rights administered by the society.
2) Collect fees in pursuance of such licenses.
3) Distribute such fees among owners of copyright after making deductions for the administrative expenses.

Registered Society:
(1) Society for Copyright Regulations of Indian Producers of Films and Television (SCRIPT) for cinematography films, 135 Continental Building, Dr. A.B. Road, Worli, Mumbai 400 018, (for cinematograph and television films).

(2) The Indian Performing Rights Society Limited (IPRS) for musical works, ), 208, Golden Chambers, 2nd Floor, New Andheri Link Road, Andheri (W), Mumbai- 400 058 (for musical works).

(3) The Phonographic Performance Limited (PPL) for sound recordings, http://www.iprs.org. Flame Proof Equipment Building, B.39, Off New Link Road, Andheri (West), Mumbai 400 053 (for sound recordings).

(4) Indian Reproduction Rights Organization (IRRO) for authors and publishers, http://www.pplindia.org

These societies, particularly the PPL and the IPRS, have been active in anti-piracy work. The PPL has even set up a special anti-piracy cell headed by a retired Director General of Police and it has been working in tandem with the police.

CASE LAWS:
1. IPRS Limited v Hello FM Radio (Malar publications Limited).
FACTS:
According to this case the Indian Performing Rights Society Limited (IPRS) secured an injunction from the Delhi High Court against Hello FM Radio (Malar Publications Limited).

The defendants were broadcasting the songs without obtaining licenses from the Indian Performing Rights Society Limited (IPRS).

In this case IPRS wanted either Hello FM Radio (Malar Publications Limited) should obtain license or have to stop broadcasting the songs, or both.

HELD:
In this case the Delhi High Court granted the injunction. By restricting the Hello FM Radio from playing music without obtaining license from the Indian Performing Rights Limited (IPRS).

IPRS is a non-profit making company authorized under section 33 of the Copyright Act 1957 to operate as a copyright society for 'musical works' and 'literary works' performed along with the 'musical works'. IPRS has more than 1500 members who are local composers, lyric writers and publishers and also represents international music. All users of music including radio stations, television stations need to obtain a 'license for public performance' whenever they broadcast or perform or play these literary and musical works, prior to the event or broadcast, if it is to avoid being in a violation of the Copyright Act, 1957.

This order is a warning to other similar establishments operating without a license and violating copyright laws.

2. Phonographic Performance Limited v Hotels
In the past also Mumbai High Court directed hotels to pay towards copyright license fee for playing music in the new-year parties organized by them where an entry fee was charged. Phonographic Performance Ltd (PPL), a copyright society registered under the Copyrights Act, which took the hotels to court for failing to pay copyright license fees. PPL is the sole authority to administer the broadcasting, telecasting and public performance rights and to collect license fees on behalf of the music industry.

To turn the focus on the law; Copyright is a bundle of rights including inter alia rights of reproduction, communication to the public, adaptation and translation of the ‘work’. Work in copyright law corresponds to original literary, dramatic, musical & artistic works and also cinematograph films and sound recordings. The copyright law protects these rights but in cases of ‘fair deal’ provides for exceptions under which others can use the copyrighted protected work under authorization.

3. M/s Phonographic Performance Ltd. v M/s Hotel Gold Regency & Others (MANU/DE/0942/2008)
FACTS:
In this case the Delhi High Court decision has made the life of the Copyright owners and the Copyright Societies more complicated. As we known that the Copyright Societies in their capacity as licensees usually institute copyright infringement suits in their names on behalf of all their members who are actual copyright owners.

HELD:
This judgment however has put an end to the practice by holding that as per the scheme of the Copyright Act, 1957.

According to this judgment the Copyright Societies do not have any right to institute a suit for copyright infringement in their name and therefore only a copyright owner or an exclusive licensee can sue for copyright infringement.

The reasons given in the judgment revolve around a combination of various provisions of the Copyright Act namely Sections 33, 34, 54, 55 & 61. To start of with the judgment upholds the defendant’s contention that as per Section 55 only a copyright owner can institute a suit for infringement of his work. As per Section 54 the definition of copyright owner includes an exclusive licensee. Therefore an exclusive licensee has a right to institute a suit.

While in the current case the plaintiff himself had stated that it was not an exclusive licensee the Delhi High Court has interpreted the law to hold that a copyright society can never be an exclusive licensee because of the proviso to Section 33(1) which states that “an owner of copyright shall, in his individual capacity, continue to have the right to grant licenses in respect of his own works consistent with his obligation as a member of the registered copyright society”.

Further the Delhi High Court held that from a bare reading of Section 34 it was obvious that the legislature had vested the copyright societies with only rights of administration that included the right to issue licenses and collect royalties and distribute the earnings amongst owners.

The Court held that if in case there were disputes regarding the violation of these licenses issued by the society then in that case the copyright society would have the right to sue in its name since it was a contractual dispute and not a case of copyright infringement. Ultimately the Court ended up rejecting the plaint in this suit.

Comment:

This basically means that all pending suits filed by Copyright Societies are likely to be rejected in the Delhi High Court and because of this the Copyright Owners have to start the litigation on their individual name.

This judgment is definitely going to have quite an impact on the operation of copyright societies and we can expect to see several more rounds of litigation on this point.

4. The Indian Performing Rights v Kolkata knight Riders
FACTS:
A suit on copyright violation against Kolkata Knight Riders (KKR) was filed on May 14th, 2008 by The Indian Performing Rights Society (IPRS). The allegation was about playing 14 popular Hindi film songs like "Om Shanti Om" during IPL matches at Eden Gardens without permission.

HELD: The Kolkata High Court refused the application for injunction on the use of the songs and directed the parties to file affidavits. This matter is yet to be decided.

5. Indian Performing Rights Society v Eastern India Motion Pictures Association & Others, AIR 1977 SC 1443.
In this case the Supreme Court held that the author/ composer of a lyrics or musical work and thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the owner of the film from causing the accosted portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilizing such sound track or from communicating or authorizing the communication of the film by radio diffusion as Section 14(1)(c) of the Copyright Act permits the owner of the Copyright of the cinematograph film to do all these things.

6. Eastern India Motion Pictures v The Indian Performing Right Society, AIR 1978 Cal 477
FACTS:
When a Cinematograph film producer commissions a composer of music or a lyricist for valuable consideration for film or composing music or lyrics for that film, i.e.; the sounds for incorporation in the sound track, he becomes the first owner of the copyright therein’ No Copyright subsist in the composer of the lyrics or music so composed unless there is a contract to the contrary between the composer of the music and the film producer.

HELD:
Following the decision of the Supreme Court in AIR 1977 SC 1443, the High Court allowed the appeal and the order under appeal was set aside.

7. Radio Today Broadcasting Limited v. Indian Performing Rights Society, 2007 (34) PTC 174 (CAL),

FACTS:
Radio today broadcasting, the petitioner’s, plan to run a radio station through the F.M band with the name Radio Today. They applied for a license from the Central Government and also secured a provisional license. The petitioner’s intent is to play both film and non- film songs on this proposed station. The dispute arouse due to the fact that Radio Today was not willing to pay royalties to the IPRS. And IPRS in turn threatened to bring a legal action for infringement of copyright.

Radio Today’s main contention was that once the song is composed and marketed through the producers, they were only required to seek permission from the Producer’s society only and not from IPRS as once the song was prepared and marketed, the complete product would attract royalties and the individuals performers are entitled tot such royalties.

The IPRS told to Radio Today that if the station played the songs, it would amount to copyright violation. Alerted by the threats, Radio Today filed a lawsuit u/s 60 of the Copyright Act, 1957, which provides for remedies in the case of groundless threats of legal proceedings.

Held:
The Court held that IPRS was legitimately entitled to threaten the Plaintiff and they were also entitled to initiate proceedings by taking records to process of law to protect the interest of the members.

Comment:
The moot question that is addressed whether Radio Today would be obliged to pay any royalty or license fee to IPRS. If the songs are broadcast through the radio station in addition to the license fees paid to the producers (PPL a society of producers).

8. Indian Performing Rights Society v/s Debashis Patnaik and Another’s, 2007.
In this case Justice Geeta Mittal of the Delhi High Court while examining the claim of the copyright infringement made by the IPRS against the a hotel in Orissa, held that the defendants are liable for the infringement of copyright by communication of musical works of the plaintiff to the public in the hotel rooms in the defendant’s hotel without authorization of or permission from the IPRS.

Held:
Even if the defendant stayed away from the judicial proceedings, a plaintiff could not be deprived of its claim for damages.

The Court decreed the suit in favour of IPRS, granting a sum of RS. 141788/- towards the actual the compensatory damages and the sum of three lakh rupees as punitive damages, along with the interest of 10% a year on the amount from the date of decree till payment.

9. Phonographic Performance Limited and Others vs. Music Broadcast Private Limited and Others [BOMBAY HIGH COURT]
was delivered by :
D.K. Deshmukh, J.All
In this case the Phonographic Performance Limited filed an appeal in the High Court of Bombay to which the FM Radio companies filed a cross – appeal. For the first time, a court interpreted the Compulsory License Provision could be granted for the Copyrighted work.

Differentiating between the thresholds for approaching the Copyright Board in a Section 31 compliant.

Held:
In this case the Court held that a reasonable royalty rate is only a criterion when entertaining a complaint for compulsory licensing relating to broadcasts. In respect of each other types of publication, the complainant had to establish that the work the work had been withheld from the public by virtue of the copyright owner’s refusal to grant a license.

UNITED KINGDOM:
There are many Copyright Societies in United Kingdom which are as follows:
Collecting Society:
The aim of a collecting society is to generate returns on repetitive uses of copyright material such performances, photocopying and now electronic distribution, which it would be too costly for owners to demand on an individual basis.

There are different Copyright Societies in United Kingdom; some of them are as follows:
1. Performing Right Society (PRS):
It had both the members, composers and their publishers. It acts on behalf of its two categories of members ---- composers and lyricist, publishers, to license the public performance, broadcasting and cabling of music, mainly.

2. The Mechanical Copyright Protection Society (MCPS):
In the United Kingdom the Mechanical Copyright Society is the principal body through which licenses to record musical works are obtained by record producers, film producers, broadcasters and others from composers, lyricists and their publishers.

The MCPS is owned by the Music Publishers Association and operators not as assignee of the relevant copyright but as exclusive management agent for the copyright owners.

In music industry practice the composer will normally assign copyright to the individual publishers, save for the performing rights, which go to the PRS.

3. Author’s Licensing and Collecting Society (ALCS):
The Author’s licensing and Collecting Society (ALCS) represents the interests of all United Kingdom writers and aims to ensure writers are fairly compensated for any works that are copied, broadcast or recorded. Run by writers for writers

The Writers' House, 13 Haydon Street, London, EC3N 1DB
Tel: 020 7264 5700, Fax: 020 7264 5755, Email: alcs@alcs.co.uk, www.alcs.co.uk

4. British Association of Pictures Libraries and Agencies (BAPLA)
BAPLA is the United Kingdom trade association for pictures libraries and the largest organization of its kind in the world.

5. Directors and Producers rights society (DPRS):
The DRPS is the collecting society which represents British film television directors. It collects and distributes money due to directors for the exploitation of their work.

6. Federation against Copyright Theft (FACT):

FACT is the leading representative trade body that is committed to protecting the interests of the UK’s film and broadcast industry in the fight against pirate films and DVDs and the increasing threat from online piracy. FACT deals primarily with Customs, the Police and Trading Standards Offices, providing expert technical examination services for evidential purposes and the gathering of evidence to justify enforcement action or prosecution by the relevant authority. FACT also undertakes private prosecutions on behalf of its members.

7. British Academy of Composers and Songwriters – BACS:
BACS represents the interests of music writers across all genres, providing advice on professional and artistic music matters.
Website: www.britishacademy.com

8. British Music Rights – BMR:
British Music Rights is an umbrella organization which represents the interests of composers, songwriters and music publishers. Formed in 1996 by the British Academy of Composers & Songwriters, the Music Publishers Association (MPA), the Mechanical-Copyright Protection Society (MCPS) and the Performing Right Society (PRS), it provides a consensus voice promoting the interests of creators and publishers of music at all levels. Website: www.bmr.org

CASE LAWS:
1. Performing Right Society v/s Police Department Lancashire
The advocate for the Performing Right Society has filed asking for an injunction against the police in the UK, citing copyright infringement. The accused in this case is the Lancashire Police Department. In an unusual move, the advocate for the Performing Right Society, also called the PRS, has filed a writ in court asking the judge to issue an injunction against the department. The position of the Society and their advocate is that the police are violating copyright laws when they play music in the stations and headquarters without having a valid license to do so. PRS is the society responsible for collecting royalties that are owed to music artists and songwriters in the country, and the advocate for the society has submitted the writ asking for an injunction to the High Court, asking that the Chief Constable of Lancashire, Steve Finnigan, cease and desist these activities and pay an amount in damages to PRS for the infringement of copyrights concerning the music. Police officers and constables from all over the UK have reported to the society that music is played in many different situations, including at the police stations, in the staff gyms, during parties at the office, played to callers who are put on hold, in training videos, and during conferences and presentations. The position taken by the PRS and their advocate is that music which is played loud enough for others to hear should be considered a public performance, and as such require a license and the payment of royalties for the music being performed. The Lancashire Police Department, as well as several other police forces, has refused to pay for a license or to obtain one, which puts them in violation of copyright laws according to the PRS. This is not the first time that the society has brought an action concerning copyright infringement and music playing. Last year, the advocate for the society filed suit against the car repair business Kwik Fit. In that case the society filed for an injunction and damages because mechanics who worked for the company frequently played their radios loudly, so that customers and people walking by could hear the music. This could be a big warning for anyone who plays their music too loud, and allows others to overhear it. Apparently PRS does not believe that music on the radio should be heard by the masses unless they profit from it.

UNITED NATIONS OF AMERICA:
The different Copyright Societies are as follows:
1. American Society of Composers, Authors, and Publishers (ASCAP):
The American Society of Composers, Authors and Publishers (ASCAP) is a non-profit performance rights organization that protects its members' musical copyrights by monitoring public performances of their music, whether via a broadcast or live performance, and compensating them accordingly.

ASCAP collects licensing fees from users of music created by ASCAP members, then distributes them back to its members as royalties (BMI has a similar method for its members). In effect, the arrangement is the product of a compromise: when a song is played, the user does not have to pay the copyright holder directly, nor does the music creator have to bill a radio station for use of a song.

2. The Recording Industry Association of America (or RIAA):
Recording Industry Association of America is a trade group that represents the major labels of the recording industry in the United States. Its members consist of a large number of private corporate entities such as record labels and distributors. The RIAA has continued to participate in creating and administering technical standards for later systems of music recording and reproduction, including magnetic tape (including cassette tapes and digital audio tapes), CDs and software-based digital technologies.

The RIAA also participates in the collection, administration and distribution of music licenses and royalties.

The association is responsible for certifying gold and platinum albums and singles in the USA. For more information about sales data see List of best selling albums and List of best selling singles.

The RIAA's goals are:
1. to protect intellectual property rights worldwide and the First Amendment rights of artists;
2. to perform research about the music industry;
3. to monitor and review relevant laws, regulations and policies.

3. Motion Pictures Association:
The Motion Picture Association of America (MPAA) and its international counterpart, the Motion Picture Association (MPA) serves as the voice and advocate of the American motion picture, home video and television industries, domestically through the MPAA and internationally through the MPA.

4. The Author’s Guild:
The Authors Guild is an advocacy organization of and for published authors. It currently boasts at least eight thousand members, which includes not only authors, but literary agents and attorneys (who mainly deal in book publishing). The current president is Roy Blount Jr. As they are primarily an author’s advocacy group, particularly new ones who are not versed in the business side of the book publishing industry, the Guild often runs into conflict with individuals and organizations whose interests seem to take advantage of the unsuspecting author.

CASE LAWS:
Authors Guild vs. Simon & Schuster
On May 17, 2007, Authors Guild Executive Director Paul Aiken released a statement warning members of a new clause in Simon & Schuster contracts. The standard industry contract allows for the reversion of rights. In other words, the specific rights granted to the publisher by the author under their contract (copyright itself remains the author's) revert from the publisher to the author if the book’s sales fall below a minimum level or when the book goes out of print. Simon & Schuster’s new clause stipulates that as long as the book is made available in electronic format, the rights remain with the publisher. This would effectively extend the publisher’s ownership for the entire length of the copyright, thereby preventing an author from seeking other avenues for their book. As Simon & Schuster is a major American publishing house with many imprints, the concern is that such a clause, left unchecked, would eventually become standard industry procedure.

On May 22, Simon & Schuster released a statement that the Authors Guild “perpetuated serious misinformation regarding Simon and Schuster, our author contracts and our commitment to making our authors' books available for sale.”

As a result, on May 30, the Guild launched a high profile campaign, Republish or Perish, which coincided with the 2007 BookExpo America. The campaign involves ads placed in general interest magazines informing authors of this new clause, organizing symposia on the new contract terms, providing advice on how they can protect themselves.

An alert to AAR members states that on May 31, 2007, Simon & Schuster executives Jack Romanos, Carolyn Reidy, and Rick Richter, for the purpose of discussing the reversion of rights issue. apologized for “any early miscommunication” regarding reversion of rights and wanted to clarify their position as being able “to keep books in print more effectively and to market frontlist and backlist titles more vibrantly. They further indicated their willingness to negotiate a “revenue-based threshold” to determine whether a book is in print. This issue, however, remains unresolved.
Other copyright societies in America are:
# Advertising Photographers of America, Los Angeles
# American Society of Composers, Authors, and Publishers (ASCAP)
# The American Society of Media Photographers (ASMP)
# Association of American Publishers
# The Authors Guild
# Broadcast Music Incorporated (BMI)

CASE LAWS:
The Recording Industry Association of America settled its copyright infringement lawsuits against four university students. Aaron Sherman and Jesse Jordan of Rensselaer Polytechnic Institute, Daniel Peng of Princeton University and Joseph Nievelt of Michigan Technological University agreed to pay the RIAA between $12,000 and $17,500 each for downloading music Napster-style on their campuses. [Managing Intellectual Property, p 12, June 2003]

AUSTRALIA:
1. Australasian Performing Right Association:
Australasian Performing Right Association (APRA) administers rights of public performance and communication to the public of music and lyrics for composers, music publishers and other copyright owners. They provide license for live and recorded music and lyrics to be performed publicly, for example in pubs, clubs, restaurants and shops, and also licenses radio and T.V stations, web casters and organizations playing music on hold. APRA can also assist in identifying and finding owners of copyright in music and lyrics.

The license covers:
· playing of music as part of a class
· performances by school bands or orchestras
· performances by school choirs or singing groups
· school rock band performances
· playing music on CDs
· playing music by way of radio or television broadcasts

Where the music is to be performed (live or pre-recorded) other than above further permission should be sought from APRA.
Locked Bag 3456
St Leonards NSW 2065
Tel: (02)99357900
Fax: (02) 99357999
Website: www.apra.com.au

2. AMCOS (Australasian Mechanical Copyright Owners Society):
AMCOS administers and distributes royalties collected for 'mechanical' and 'reproduction' rights in musical works on behalf of its members, namely composers, writers and music publishers. Mechanical rights refer to when the musical work is reproduced in mechanical form, eg a sound recording.

A license is required to make a recording of a musical work even if there is no intention to sell the recording.
Most education institutions have a voluntary license with AMCOS in relation to copying of sheet music.

3. Phonographic Performance Company of Australia (PPCA):

Phonographic Performance Company of Australia (PPCA) licenses the public performance of sound recoding. For instances, it licenses the public performance of sound recordings to pubs, clubs, restaurants, shops, radio and T.V stations. It is now also offering licenses for online uses of sound recordings.
Contact details:
PO Box Q20, Queen Victoria Building, Sydney NSW 1230,Tel: (02)85691100

4. Screen rights (formerly the Audio—Visual Copyright Society Limited):

Screen rights administers the statutory licenses which allow educational institutions to copy and communicate, and governments to coy, material from radio and television on behalf of film producers and distributors, script and governments to copy, material from radio and television on behalf of film producers and distributors, script writers and music copyright owners. Screen rights may also be able to help with identifying and finding copyright owners of audiovisual material.

Contact details: Level 3, 156 Military Road, Neutral Bay, NSW 2089, Tel: (02) 99040133
Website: www.screen.org

6. VISCOPY:
VISCOPY’s licenses the work of Australian visual artists, including craft workers, photographers and designers.
Contact details are: 45 Crown St, Woolloomooloo NSW 2011, and Tel: (02)93680933, Website: www.viscopy.com

CANADA:
1. Audio Cine Films:
www.acf-film.com
Audio Ciné Films Inc. (ACF) is Canada's exclusive non-theatrical distributor and public performance licensing agent for Canadian, American and foreign feature film producers such as Universal Studios, Walt Disney Pictures, Alliance-Atlantis, Paramount Pictures, MGM Studios, Touchstone Pictures, PolyGram Filmed Entertainment, United Artists, FineLine Features, Orion Pictures, Hollywood Pictures, New Line Cinema, Behavior, Miramax Films, Odeon, Sony Classics, Paramount Classics, Black watch Releasing and Artisan Entertainment, among others. It distributes films in 16MM, 35MM, videocassette and DVD.

2. Canadian Screenwriters Collection Society (CSCS):
www.wgc.ca/cscs
E-mail: d.tay@wgc.ca

The Canadian Screenwriters Collection Society (CSCS):
The Canadian Screenwriters Collection Society (CSCS) is a non-profit corporation created by the Writers Guild of Canada with the mandate to claim, collect and distribute secondary authors' levies to which film and television writers are entitled under the copyright legislation of European and other jurisdictions.

In this context, secondary authors' monies include private home copying (blank tape) levies, rental and lending levies, and educational use levies.

3. Directors Rights Collective of Canada (DRCC):
www.dgc.ca
e-mail: hengel@dgc.ca
The Directors Rights Collective of Canada (DRCC) is a non-profit corporation founded by the Directors Guild of Canada. Its mandate is to collect and distribute royalties and levies to which film and television directors are entitled under the copyright legislation of jurisdictions throughout the world.

4. ACTRA Performers' Rights Society (PRS):
www.actra.ca/actra/control/prs

The ACTRA Performers' Rights Society (PRS) is responsible for the collection and distribution of fees, royalties, residual fees and all other forms of compensation or remuneration to which members and permit holders of the Alliance of Canadian Cinema Television and Radio Artists (ACTRA), and others may be entitled to as a result of their work or engagement in the entertainment and related industries.

5. Society of Composers, Authors and Music Publishers of Canada (SOCAN):
www.socan.ca

The Society of Composers, Authors and Music Publishers of Canada (SOCAN) is a performing rights society that administers performing rights in musical works on behalf of Canadian composers, authors and publishers as well as affiliated societies representing foreign composers, authors and publishers.

6. Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC):
www.sodrac.ca
SODRAC's Visual Arts and Crafts Department manages the rights of more than 17,000 Canadian and foreign creators of artistic works. SODRAC negotiates on their behalf the conditions for the use of their works for any of the purposes outlined in the Copyright Act, and grants licenses for public exhibition, communication to the public by telecommunication and the reproduction of their works on any media, including audiovisual and multimedia. It collects and distributes royalties paid for the right to use their works. To check if an artist is represented by SODRAC's Visual Arts and Crafts Department, please consult the "Repertoire" page under the "Artistic Works" section on its Web site.

JAPAN:
1. Music Publishers Association of Japan (MPA):
Round Cross Aoyama 4F, 2-27-25, Minami-Aoyama, Minato-ku, Tokyo 107-0062;
Tel. 81-3-3403-9141 Fax. 81-3-3403-9140
The MPA is a voluntary non-profit-making organization established in 1980 in order to develop the industry of music publishing, which exploits domestic and overseas musical works, and to develop harmony among music publishers.

2. The Federation of Music Producers Japan (FMP):
Jingu-mae Wada Building 2F, 5-48-1, Jingu-mae, Shibuya-ku, Tokyo 150-0001; Tel. 81-3-5467-6851

The Federation of Music Producers Japan is a voluntary non-profit-making organization established in 1989 in order to improve music management businesses, and to protect artists and producers as the beneficiaries of neighboring rights.

3. Directors Guild of Japan:
Shibuya Goto Building 5F, 3-2, Maruyama-cho, Shibuya-ku,Tokyo 150-0044;
Tel. 81-3-3461-4411 Fax. 81-3-3461-4457
The Directors Guild of Japan is a cooperative society established in 1936 by directors of motion pictures in order to promote welfare of its members as well as to promote their economic positions, aiming further development of motion pictures.

4. Motion Picture Producers Association of Japan, Inc:
Nihonbashi Building 2F, 1-17-12, Nihonbashi, Chuo-ku, Tokyo 103-0027;
Tel. 81-3-3243-9100
The Motion Picture Producers Association of Japan is a voluntary non-profit-making organization established in 1945 in order to diffuse motion pictures and to develop the relevant industries through research, communication, commendation, etc.

5. Japan Association of Audiovisual Producers, Inc:
Santoku-Nihonbashi Building 6F, 4-2-9, Nihonbashi-Muromachi, Chuo-ku, Tokyo 103-0022;
Tel. 81-3-3279-0236 Fax. 81-3-3279-0238
The Japan Association of Audiovisual Producers, Inc. is a non-profit-making organization established in 1957 in order to improve project of film produce and to research its techniques.

6. Japan Video Software Association (JVA):
26 Tsukiji-MF Building 3F, 2-12-10, Tsukiji, Chuo-ku, Tokyo 104-0045;
Tel. 81-3-3542-4433 Fax. 81-3-3542-2535
The JVA is a voluntary non-profit-making organization established in 1978 in order to diffuse video works and to develop video-related industries through research and standard setting, etc. "Software" in its name does not mean computer programs but "works"; or "contents" of videos.

7. Society for the Administration of Remuneration for Video Home Recording (SARVH) [designated association]:
Akasaka Mitsuji Building 2F, 5-4-6, Akasaka, Minato-ku, Tokyo 107-0052; Tel. 81-3-3560-3107

SARVH is a voluntary non-profit-making organization to collect and distribute remuneration for digital video home recording for the sake of copyright owners, performers and producers of phonograms.
This society, having been designated by the Commissioner of the Agency for Cultural Affairs, exclusively exercises the rights to compensation for digital video home recording.

8. National Association of Commercial Broadcasters in Japan (NAB):
Bungei-Shunju Building, 3-23, Kioi-cho, Chiyoda-ku, Tokyo 102-8577;
Tel. 81-3-5213-7717 Fax. 81-3-5213-7714
The NAB is a voluntary non-profit-making organization established in 1952 in order to facilitate communications among its members (at present 202 companies) and to deal with their common problems. The Copyright Department of the society handles copyright affairs.

9. Recording Industry Association of Japan (RIAJ) [designated association / management business operator]:
Kita Aoyama Yoshikawa Building 11F, 2-12-16, Kita-Aoyama, Minato-ku, Tokyo 107-0061;
Tel. 81-3-6406-0510 Fax. 81-3-6406-0520

The RIAJ is a voluntary non-profit-making organization established in 1942 in order to promote the cooperation of phonogram producing industries in Japan, and to facilitate the diffusion of good phonograms and fair utilization of phonograms. In conformity with the Copyright Law, this Association, having been designated as the sole collecting society by the Commissioner of the ACA, collects the secondary use fees from broadcasters and wire diffusers as well as the remuneration from record rental business who offer commercial phonograms to the public by rental.

CHINA:
Copyright Society:
The Music Copyright Society of China is the country's only officially recognized organization for music copyright administration.

Background music played at department stores or hotels -- also called `muzak' -- received legal protection in 2001 under revisions to the Copyright Law. The law states that both live and mechanical performances enjoy the same rights.

While in the original version of the law, which was adopted in 1990, the rights in performance were only related with live performances -- displaying musical works through the performances of the musicians or technical equipment.

At yesterday's hearing, the plaintiffs in the case said they had recorded three hours worth of background music for the store in September of last year as evidence. The music was broadcast during the store's business hours.

"Only in three hours, 21 songs were played whose rights had been entrusted to the society for administrative purposes,'' Wang Bin, the lawyer representing the plaintiff said yesterday.

Wang added that this is only a small part of the works played by the accused without authorization.

The association has now administered copyrights for over 14 million music works by 2,500 members.

"But the evidence could fully support the fact that the accused has been using the music works illegally for a rather long time, in large amounts, with the purpose of making profits,'' he said.

The evidence has been preserved and notarized, according to the lawyer.

CASE LAWS:
1. A south China court has ordered a karaoke company to pay damages of 30,000 yuan (4,286 U.S. dollars) in what is reported to be the country's first karaoke copyright infringement case.

Haoledi Entertainment Company, the karaoke bar management firm, was also ordered to delete three music videos from its database after being sued by Beijing-based New Run Entertainment Company.

New Run, a performance management and audio-visual production firm, filed the suit at the people's court in the Chancheng district of Guangdong Province's Foshan city in April.

A member of the Music Copyright Society of China (MCSC), New Run produced Chinese singer Pang Long's EP album in 2007. The album featured 23 videos in a bonus DVD, including the three involved in the case.

The case, according to the Legal Daily, is the first karaoke copyright infringement case brought to court in China.

2. FACTS: A Beijing-based notarial organization had recorded the whole process of ordering the programs as evidence for New Run's case.

The illegally-used songs were "You are My Rose", "Two Butterflies" and "Hometown in Northeast China", all written and performed by Pang Long.

Haoledi argued that New Run had failed to notify it in advance of how and whom to pay for the programs.

HELD: However, the court ruled that Haoledi had a legal duty to ensure payment and its failure to meet its obligation was unreasonable.

3. The Guangdong-based Yangcheng Evening News reported that the MCSC and the China Audio and Video Association (CAVA) had also filed suits against three karaoke bars for illegally using "Qian Gui", karaoke company Cashbox Party World’s Chinese title.

Last year, 15 provinces and municipalities, including Beijing and Guangdong, agreed to collect karaoke copyright royalties. The practice was spreading nationwide, according to the CAVA and MCSC.

4. Karaoke operators must pay a daily charge of 12 yuan (1.70 U.S. dollars) for each karaoke room -- less in underdeveloped regions -- for the use of musical and video products, according to a National Copyright Administration notice issued in November 2006.

China has an estimated 100,000 karaoke establishments -- each with an average of 10 private rooms -- generating almost 1 billion yuan in turnover annually.

(Xinhua News Agency July 22, 2008)

5. Music Copyright Society of China:
Olympic Songs for Business Use Should Be Licensed:
According to the Announcement on Affairs Related to Dissemination and Copyright Work of Olympic Songs of 2008 Olympic Games issued by Music Copyright Society of China (MCSC), the Beijing Organizing Committee for the Games of the XXIX Olympiad (BOCOG) has authorized MCSC to manage the copyrights of Olympic songs in a unified manner in the form of collective management.

The announcement points out that BOCOG has authorized MCSC to manage the copyrights of Olympic songs in a unified manner in the form of collective management; non-business use of Olympic songs by individuals, families, schools, institutions and spontaneous public activities does not need to be licensed, so to spread the Olympic spirit, promote the dissemination of Olympic songs and encourage the masses to learn these songs; according to the Copyright Law of the People’s Republic of China and the Regulations on the Protection of Olympic Symbols, those who use Olympic songs for business purpose in business venues such as shopping malls, supermarkets, hotels and catering places, perform Olympic songs in the forms of vocal concerts or musical performances, or produce and issue audio and video products should first contact MCSC to gain licenses; all the units who want to use Olympic songs for business purpose can contact the headquarters of MCSC and its management centers in various regions via phone, fax and internet to get related information and apply for the licenses.

The copyrights of 72 Olympic songs are currently under protection. Related heads of MCSC notes that once these songs are discovered to be used for business purpose without approval, MCSC will sue related units for the infringement of the copyrights of Olympic songs.

In order to implement related regulations of Olympic IPRs and in response to the instruction spirit of the Propaganda Department of CPC Central Committee on strengthening the dissemination and promotion of Olympic Games, MCSC, the only organization for music copyright collective management in the Chinese mainland, will supply full copyright services of Olympic songs through simple and effective licensing procedures, so as to ensure the legal use of Olympic songs

6. Music Copyright Society of China v. Baidu
Music Copyright Society of China (MCSC) recently announced that the trade group has initiated a lawsuit against search engine company Baidu (NASDAQ: BIDU) for providing copyrighted lyrics on its website and profiting from the associated webpage traffic. MCSC claims that it has been negotiating with Baidu since 2005 to resolve the copyright violation issue but could not reach an agreement with the company. As a result, MCSC brought the dispute to Beijing Haidian district court, suing for nearly $150,000 in damages and legal fees. Pearl Research believes the music download search has been one of the main drivers for Baidu’s traffic and a key advantage the company has over Google China. However, various ongoing copyright violation lawsuits bring in questions the sustainability of the company’s music search engine.

7. Department store faces music in copyright case:
(China Daily)  Updated: 2004-02-04 23:06

Proceedings in China's first-ever lawsuit over copyright infringement for background music allegedly being played for profit-making purposes began Wednesday in a Beijing court.

Chang'an Department Store, a major retail outlet in the capital, has been charged for the infringement by the Music Copyright Society of China.

The lawsuit court session started yesterday at the Beijing No 1 Intermediate People's Court. This case, the first of its kind since the country's Copyright Law was amended in 2001, is drawing attention nationwide.

In its indictment, the society is seeking a compensation of 228,100 yuan (US$27,600) for the accused store's use of background music, whose copyright is managed by the society, without being authorized and paying fees. No judgment was made yesterday in the case, and an announcement for the next session is yet to be made public.

The society issued a lawyer's letter to the store last April, pointing out that the store is violating the plaintiff's rights.

"But the accused paid no heed to our legal appeal and continued as before,'' Wang said.

Up to now, 23 department stores in Beijing, including the Oriental Plaza and the Pacific Department Store, have paid fees to the society for using the songs under their administration, according to sources.

Department stores with various amounts of areas are charged with different standards by the society. The usual fee is 254 fens (31 US cents) per square meter per year for a department store of 10,000-20,000 square meters to use the music, the society said.

The plaintiffs expressed their willingness to accept the conciliation initiated by the court, but Chang'an Department Store refused the settlement yesterday.

"The society is only a non-governmental organization, not a governmental authority, so it has no right to collect mandatory fees,'' Zhang Guoying, general manager of the store said yesterday.

Zhang believed that how to charge the fees should be decided by the State Council. And there is no legal proof now on the issue.

"Meanwhile, the broadcasting of background music in our store is aimed at creating a good shopping environment for consumers, but not to make profits,'' she said.

"In fact, the copyright owners of the songs benefit from this as their works were made more widely know through us.''

She also denied the existence of the plaintiff's letter, saying "we have never had any form of communications with the plaintiff before the court session.''

Zhang also said that most of the stores in Beijing which paid fees for background music are foreign ones, as "State-owned units still need some time to get familiar with this.''

After ceasing playing of the background music last month, sales have not been influenced at all, she added.

Charges over background music performances have been given more and more importance in recent years.

In November of last year. A Beijing-based Karaoke entertainment hall was ordered by the Beijing No 1 Intermediate People's Court to pay 56,000 yuan (US$6,760) to a Hong Kong-based entertainment company for using the company's music videos without paying for them.

It was reported that fees worth a total of 18 million yuan (US$2.2 million) were collected in 2002 on the Chinese mainland for background music broadcasts.

KENYA:
Copyright Society:
1. Music Copyright Society of Kenya:
Music Copyright Society of Kenya (MCSK) is a registered Society for authors’ composers and publishers of Music.

Part of the repertoire that MCSK administers is the world wide, endearing hit “Malaika” (Late Fadhili Williams), which has been described as “The World’s greatest African Tango”.

Helule Helule, (By the Late Daudi Kabaka). Known as the King of Twist And

Unbwogable (Gidi Gidi Maji Maji), the most famous contemporary rap singers in Kenya. Their song Unbowogable united an entire nation and became a rallying, cry for change during the last elections in Kenya in 2002.

MCSK currently has six hundred and eighty (680) members; it has a repertoire of over twenty thousand musical works.

MCSK has recognised that creators are powerful communicators of the society they live in. therefore MCSK educates its members through workshops to use their creativity to become role models for the youth. They convey messages especially regarding the AIDS pandemic, to the populace thus playing an integral part in the saving of Kenyan lives.

In order to be eligible, as a member one must meet the following criteria, which are in accordance with the Copyright Act 2001 of the Laws of Kenya.

a. "sufficient effort must have been expended on making the work to give it an original character".

The applicant must be: -
· i. An individual who is a citizen of or is domiciled or resident in Kenya.

· A body corporate which is incorporated under or in accordance with the laws of Kenya.

· There must be evidence of the work reduced to material form either in: -

· Compact Disc form.

· Cassette.

vii. Written form containing the lyrics and notes.
The major objective of MCSK is to collect royalties for and on behalf of its members as well as for members with whom the Society has reciprocal agreements.

Licensing.
MCSK is the body that issues licenses for public performance and broadcasting of musical artistic works of composers, authors and publishers in Kenya.

As a composer author or publisher of music, it is not feasible for you monitor the usage of your music in order to collect your royalties, both within Kenya and world wide. You simple cannot be able to keep track of where and when your music is played. Therefore, you assign your performance, public broadcast, mechanical, rights to MCSK.

The most important principle of copyright is that it is not subject to any form of registration. This is in accordance with the laid down principle of the Berne Convention. So when you join the society you are only assigning your works and not registering them.

· You may need some advice on how to enter into or negotiate agreements. This advice is available from the society’s offices and the Society also holds frequent workshops to educate its members on their rights.

· The society through its benevolent fund can grant gratuities, donations pensions and emoluments to its members.

b. MCSK is also mandated to administer the mechanical right of its members.

CONCLUSION:
There are copyright societies in different countries. The aim of the Copyright Societies is to collect the royalty and to take appropriate actions against any infringement in various copyrighted works.
Thus different Copyright Societies helps the copyright owners to make association with foreign countries.
Thus the Copyright Societies play an important role in order to make the Copyright owners to associate with business people easily and to earn money.

BIBILOGRAPHY:
1. Law relating to Patents, Trademarks, Copyright, Designs and Geographical Indications --------- B. L. WADHERA.
2. Law of Intellectual Property ----------- DR. S. R. MYNENI.
3. Intellectual Property Law -------------- P.NARAYANAN.
--------------------------------------------------------------------------------
[1] The memorandum and articles of association.
[2] By whatever name called
[3] The memorandum and articles of association

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Authors contact info - articles The  author can be reached at: pradnya@legalserviceindia.com




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