THE MUSINGS OF AN IDIOSYNCRATIC ECONOMIST: The Copyright System in Practice (part 4)

Today we will cover the final part of the series but before we get into the discussion I want to answer a question which more than one reader has asked me. The question is “what exactly is a performance in public or a public performance?”  The answer is that a performance is considered to be in public if the performance takes place at “a place or places where persons outside the normal circle of a family and its closest social acquaintances are, or can be present”. The section in quotation marks is taken from the Grenada Copyright act of 2012. Thus the determining factor in whether or not a performance is public is the relationship between the persons who are at the place or who would usually be at the place where the performance takes place and not the place itself. Thus a performance of music in a taxi or commercial airplane is a public performance because the use of taxis or commercial airplanes would not usually be limited to family members whereas the same performance in a private car or airplane would be a in a “private place”.

  Today we look at Exceptions to Copyright and Neighbouring Rights.

The following uses of copyright works or neighbouring rights do not infringe the rights of copyright owners or owners of neighbouring rights.

1.  Using short excerpts of works for reporting current events to the extent justified by the purpose.

2. Reproduction solely for scientific research

3. Reproduction solely for face-to-face teaching except for performances and phonograms which have been published specifically for teaching or instruction.

   There are further Exceptions to Infringement

1. Fair Use. Quotation of a short part of a published work is allowed but the quotation must be accompanied by the source and name of the author.

2. Reproduction of a short part of published works for teaching in writing or sound or visual recording to the extent compatible with fair use. I know!! The statement begs the question as to what is fair use.

3. Limited reprographic (photocopying) reproduction by non-commercial educational institutions of published articles or other short works where there is no collective licence available. This obviously means that ROSS and All Saints University are not allowed to make any photocopies for students and/or faculty members since these two institutions are for-profit educational institutions. The Dominica State College on the other hand would be free to make use of this exception, but as soon as an organization exits in Dominica that can give a licence for such photocopying the privilege is withdrawn from all schools. In fact such an organization has recently been incorporated in St.Lucia. The organization is the Eastern Caribbean Copyright Licensing Agency (ECCLA) that will operate throughout the OECS.

4. Reproduction in a newspaper or broadcasting of an article published in a newspaper or other periodical on current economic, political or religious topics or broadcast works of the same nature. The permission does not apply where the right to authorise reproduction or broadcasting or other communication to the public is expressly reserved on the copies by the author or other owner of copyright.  Readers of DNO would have realized that DNO’s articles cannot be reproduced by other publications because DNO has expressly reserved its rights. However a perusal of our two weekly newspapers reveals that no claim to copyright exists in the pages of these publications which mean that other publications or broadcasters are free to reproduce the contents of these publications to deliver their news.

5. Reproduction in a newspaper or broadcasting of a political speech, Lecture, address, sermon or other work of a similar nature delivered in public, or a speech delivered during legal proceedings, to the extent justified by the purpose of providing current information. Obviously use of the entire work is not allowed except in exceptional circumstances where the work, for example, is so short that a proper report could only be made by using the entire work.

6. Reproduction in a single copy exclusively for the copier’s personal use. However the reproduction of a work of architecture is not allowed at all. Similarly photocopying of the whole or a substantial part of a book or a reproduction of a recording of a musical work,  a sound recording or a film by electronic means are not allowed while reproduction of a computer programme is only allowed for archival purposes. The bona fide owner of a licensed copy of a computer programme is allowed to sell his copy of the computer programme to another person, but if does so he must also give the buyer any archival copies which he may have. All these exceptions are circumscribed by the general requirement that reproduction or other use should not conflict with the normal exploitation of the work or unreasonably prejudice the legitimate interests of the author or other owner.

   Infringements

By now you should have understood that any action taken by a person who is not the owner of a work without the owner’s permission, barring the exceptions we noted, is an infringement. Obvious infringements of copyright include:

1. Reproduction in any manner or form of a work without permission

2. Translation without permission

3. Adaptation without permission. (E. g changing the key of a song is permissible, but adding new lyrics, change of rhythmic pattern etc require authorization)

4. Broadcasting of any work, including a literary work, without permission

5 Public performances by any means whether directly by human beings or with the aid of any machine or device such as loud speakers, Television sets, radio receiving sets ,computers and other devices for reproducing sound and/or images etc without permission from the copyright owner-

6. Infringement of the authors’ moral rights which were described in part 1 of the series.

In addition to the infringement of copyright works we have the infringement of Neighbouring Rights.   These include:

1. Broadcasting a performers performance without permission

2. Fixing a performers performance whether by audio recording, audio-visual recording or still photography without permission

3. Infringements of the performers Moral rights

4.  Copying a producer’s sound recording without permission (piracy).

5. Broadcasting a commercial sound recording without authorisation or payment

6. Rebroadcast of a broadcasting organisation’s broadcast.

7 The fixation of a broadcast without permission.

These series of infringements are known as primary infringements, but we have another set of infringements known as secondary infringements. The word secondary should not be taken to mean that these infringements are of lesser importance. What the word signifies is that these infringements generally take place after the primary infringement occurred. In a general sense we can describe these infringements as dealing with infringing copies or being an accessory to infringements.   For example we have infringements such as:

1. Importing an infringing copy of a work without permission.

2. Possession of an infringing copy for business purposes

3. Exhibition of an infringing copy for business purposes

4. Selling, hiring or exposing for sale or hire an infringing copy.

5. Permitting a place of public entertainment to be used for public performance where the performance infringes copyright.   However we should note that for a secondary infringer to be liable or guilty knowledge of the infringement either before or after the fact is necessary whereas in the case of a primary infringement knowledge by the infringer is not necessary for liability. Lack of “knowledge” of course does not mean that the infringer was not told of the primary infringement in advance. Knowledge is usually taken to mean that a reasonable person ought to know that an infringement had taken place and that he was likely dealing with infringing copies or that infringing performances were likely to take place.

      Remedies

The owner of copyright has access to the same range of civil remedies as the owner of any other property or right in property. He is entitled to sue for damages and injunctive relief as well as seizure or destruction of infringing copies and implements used in making infringing copies. These rights of action are available for infringement of moral rights as well as for infringement of the economic rights. In addition some unauthorised actions with the owner’s rights also give rise to criminal sanctions i.e. fines and /or imprisonment. For example a person dealing with infringing copies in the course of business including not only making infringing copies (piracy), but dealing with these in any business-like way is liable on a  first offence to a fine of $2500.00 for each infringing copy or article. For a subsequent offence imprisonment of twelve months is added to the fine. Further, where a company is convicted of an offence every director and  the management of that company is also guilty of the  offence if it is proved that the act that constituted the offence took place with their authority, permission or consent or their negligence.

I have by no means touched all aspects of this rather complex and involved topic. You would have noticed that I did not mention the use of works on the internet. This is because copyright and the internet is is very complex issue that is still evolving on a daily basis and an article intended for a general readership is not the best medium for discussing this highly complex subject.  I trust however that I have provided sufficient material to stimulate you to investigate further and thereby broaden your understanding of copyright and its administration.