Abstract
Technology continuously throws up new modes of distribution of copyrighted works. The history of copyright is very much about keeping up with these technological advancements, making sure, on the one hand, that copyright owners’ control over the use of their works is not rendered meaningless by the new mode of distribution and, on the other hand, that the public gets to enjoy the works in a different manner. In this balancing act, one option is the use of compulsory licensing. Yet national policy-makers have been slow to deploy compulsory licensing as an enabler of new business models that are built on new modes of distributing copyrighted works. Why is so? Perhaps it is due to the concern that international law does not permit use of compulsory licensing. Another reason could be the concern that compulsory licensing will not achieve the right balance. These concerns are explored in this chapter.
Wee Loon Ng-Loy is Professor at the Faculty of Law at National University of Singapore (NUS).
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Notes
- 1.
It should be noted, however, that this distinction between ‘compulsory licensing’ and ‘statutory licensing’ is not always maintained. For example, section 52 of the Singapore Copyright Act 1987 speaks of a ‘statutory licence’ for multiple copying of copyright works by educational institutions when the provision stipulates that the amount of equitable remuneration is that agreed upon between the copyright owner and the educational institution, or in default of agreement, determined by the Copyright Tribunal. On the other hand, Article 67 of the Japanese Copyright Act 1970 speaks of a ‘compulsory licence’ for use of orphans works when the royalty rate is fixed by a Cabinet Order.
- 2.
134 S Ct 2498 (2014).
- 3.
FSR 36 (2013).
- 4.
1 SLR 830 (Court of Appeal) (2011).
- 5.
Was this proviso ever utilised? No, according to Professor Cornish. His research also revealed that this proviso was formally abandoned in 1739. See W. Cornish (2010), 24.
- 6.
Article 11bis applies to rights in literary and artistic works. See also Article 14bis(1) for cinematographic works.
- 7.
Part VC (Retransmission of free-to-air broadcasts) of the Australian Copyright Act 1968, in particular section 135ZZK.
- 8.
Section 111(c) of the US Copyright Act 1976.
- 9.
Section 199 (3) of the Singapore Copyright Act 1987. Singapore is a signatory of the Berne Convention. Query: does this exception contravene Article 11bis(2)? Could this exception be justified under the ‘minor exceptions’ doctrine that applies to the rights provided under inter alia Article 11bis(1)? See the discussion of this doctrine in the WTO (2002), para. 6.47-6.59.
- 10.
Article 69 of the Japanese Copyright Act 1970.
- 11.
Section 56 of the Singapore Copyright Act 1987.
- 12.
Sections 54–55 of the Thai Copyright Act 1994.
- 13.
Section 32 of the Indian Copyright Act 1987.
- 14.
M.R.F. Senftleben (2004), 80.
- 15.
This incorporation is done through Article 9(1) of the TRIPS Agreement. See also, generally, the discussion in the WTO (2002), para. 6.83-6.89 which is premised on Art 11bis(2) of the Berne Convention being part of the TRIPS Agreement.
- 16.
WTO (2002), para. 6.229 and footnote 205.
- 17.
Article 4 of the Declaration, which is published in [2008] IIC 707. See also K.C. Liu (2012), 680, (arguing that the TRIPS Agreement, when interpreted in the light of Article 7 therein, views compulsory licensing favourably).
- 18.
S. Ricketson / J. Ginsburg, (2006), para. 13.27.
- 19.
See, for example, sections 135ZJ (printed periodical articles) and 135ZMC (periodical articles in electronic form) in the Australian Copyright Act 1968.
- 20.
Section 52 of the Singapore Copyright Act 1987.
- 21.
Article 47 of Taiwanese Copyright Act 2014.
- 22.
Section 183 (5) of the Australian Copyright Act 1968.
- 23.
Section 198 (5) of the Singapore Copyright Act 1987.
- 24.
Section 31 (1) of the Indian Copyright Act 1957, as amended by the Copyright Amendment Act 2012. Prior to the 2012 amendment, section 31(1) applied only to Indian works.
- 25.
Section 4 of the Myanmar Copyright Act 1914.
- 26.
Article 11bis applies to rights in literary and artistic works. See also Article 14bis(1) for cinematographic works and the accompanying main text.
- 27.
Under the US Copyright Act 1909, the predecessor of the 1976 Act, cable retransmissions of TV broadcasts did not infringe any copyright (specifically, the public performance right): see the Supreme Court decisions in Fortnightly Corp v. United Artists Television Inc 392 US 390 (1968) and Teleprompter Corp v. Columbia Broadcasting System Inc 415 US 394 (1974). This was changed in the 1976 Copyright Act, which recognised that cable retransmissions of broadcasts falls within the public performance right, but subjected these retransmissions to statutory licensing under section 111(c). For the background to s 111(c), see the US Copyright Office (1992).
- 28.
- 29.
The US Copyright Office (1998). This report reviewed the operations of the statutory licensing schemes in sections 111, 119 and 122 of the Copyright Act 1976. Sections 119 and 122 set out statutory licensing schemes for satellite carriers.
- 30.
See also H. Cate (1990), 191, already calling for an abolition of the cable compulsory licence because the intention of this scheme was to provide a ‘subsidy’ for the cable television industry in the form of below-market royalty rates, but this industry had developed to a point that it no longer warranted this ‘subsidy’.
- 31.
The US Copyright Office (2011). Like the June 2008 report, the August 2011 report concerned the statutory licensing schemes in sections 111, 119 and 122.
- 32.
Id., 31.
- 33.
Id., 32.
- 34.
Id., at p iii.
- 35.
S. Ricketson / J. Ginsburg, (2006), 816–817 (in the context of the phrase ‘equitable remuneration’ appearing in Article 13(1) of the Berne Convention).
- 36.
K.-C. Liu, (2012), 680.
- 37.
- 38.
- 39.
The US Copyright Office (1998), 33.
- 40.
The US Copyright Office (1998), 48–49. Two other reasons were given: concerns about piracy and the prohibition in agreements that the US has signed with its trading partners. One example of this prohibition is Article 16.4.2(b) of the US-Singapore Free Trade Agreement which provides that “[n]either party shall permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorisation of the right holder in the subject matter of the signal”.
- 41.
134 S Ct 2498 (2014).
- 42.
There are reports that Aereo intended to fit itself within the cable compulsory licence provided in section 111(c) of the US Copyright Act 1976. However, it has been settled in WPIX Inc v. IVI Inc 691 F 3d 275 (2nd Cir, 2012) that Internet retransmissions of broadcasts did not come within the cable compulsory licence.
- 43.
FSR 36 (2013).
- 44.
1 SLR 830, Court of Appeal (2011).
- 45.
This was a finding made by the High Court, and affirmed by the Court of Appeal.
- 46.
See section 114 of the Copyright Act 1987. This provision permits the making of a cinematographic film that is included in a broadcast ‘for the private and domestic use of the person’ making the cinematographic film.
- 47.
For a criticism of these two grounds of the decision, W.L. Ng-Loy (2011), 373.
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Ng-Loy, W.L. (2017). Compulsory Licences as an Enabler of New Business Models. In: Liu, KC., Hilty, R. (eds) Remuneration of Copyright Owners. MPI Studies on Intellectual Property and Competition Law, vol 27. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-53809-8_17
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