Report on Copyright Convention

Radio Record, Volume II, Issue 28, 25 January 1929, Unnumbered Page

Report on Copyright Convention

S all listeners are aware, the subject of Copyright is a very important one in connection with broadeasting, and last Session special temporary legislation was passed by Parliament to safeguard broadcasting from an Injunction threatened by Australasian Performing Rights Association, limited. Parliament’s object in passing the legislation it did last year, to be effective for twelve months, was to provide time for the report from Mr. S. G. Raymond, K.C., the Special Representative of New Zealand at the International Copyright Conference, held in Rome last year, to arrive and be considered. Mr. Raymond is a leading legal authority, 1nd ably represented New Zealand at the Conference. dis report has now been prepared and made available to the House of Representatives. It will be the foundation of the legislation that will be considered and adopted by Parliament in the next Session, in order, it. is hoped, to put the copyright position on a basis of permanent satisfaction. HE report, as presented, although concise in its treatment of the subject, is necessarily lengthy on account of the extent and ramifications of the matter dealt with. The first section deals with the Conference itself, and briefly discusses the delegations and the proceedings, which lasted in Rome from Monday, May 7, 1928, until June 2, when * Convention embodying the decisions reached was signed by representatives of nearly all the States of the Copyright Union. This convention is subject to ratification by the Governments of the various countries of the Union. The Rome Convention. if accepted by New Zealand, must be ratified. and ratifications exchanged at Rome not later than July 1, 1931. The next sitting of the Conference is fixed for Brussels in 1935. All the

Recommendations of Mr. S. 8. Raymond, x.c. British delegates signed the Convention except the Irish Free State. FNHE second portion of the report deals with the Dominions’ entry into the Union, and discusses the advantages and results of such entry. Their entry is recorded as having introduced an entirely new element-an element putting forward views considered as little short of revolutionary by some of the older members of the Union. From the population point of view, their weight was, of course, insignificant compared with the other densely-populated countries ; but the importance of their entry lay in the fact that at the Rome Conference the interests of the public-that great body of purchasers and consumers of copyright wares-were vigorously yoiced by the Dominions for the first time in the history of Copyright Conferences. Evolution of the Conference. HE third section of the report dealt with | Movement in International Copyright from Diversity towards Uniformity Conditions. This section outlines thu history of previous international conferences and the development at various stages to establish uniformity of practice in all countries subscribing to the Convention. The initial tendency of the Convention was to extend protection to. and advancement of authors’ vights, and so long as authors and publishers were dominant at the conferences they were successful in having their views accepted by the National Legislatures. That movement, however, sustained two main checks to its development. Each time the check was occasio ed by the entry to the Conference of representatives of in-

terests differing from those of the copyrightowners. "The first interest to make itself felt was the industrial one. Between 1886 and 1908 the gramophone industry had sprung up and was well established, employing large numbers of workmen and much capital. It asserted itself so effectively at the Berlin Conference of 1908 that any person may now, subject to certain conditions, without the consent of the owner, make gramophone records of a copyright musical work upon payment of a royalty. This is the compulsory license system, bitterly opposed at the time, and still subject to bitter but hopeless attacks. It is secured by Article 13 of the Berlin Convention, and reappears in Article 18 of the Rome Convention, and is there for good and all, for its revocation can only be obtained by the unanimous vote of the nations of the Union, "The second check to the progress of the movement towards uniformity occurred at the Rome Conference. This time the debate was on radio-diffusion, and it was at. the hands of the Dominions of Australia and New Zealand, representing the public interests, that the check was administered. These Dominions were unfettered hy the over-emphasised traditional respect for copyright-holders’ rights, and unhampered’ by capitalistic interests, so powerful in the counsels of the Old World countries. They were combating a world-wide association, having great capital revenues, and they succeeded by asserting the principle of home rule in radiophonic control, and thus stemhnmed the tide of copyright uniformity. The problem as it appeared to the New Zealand delegate was how to reconcile the just claims of the owners of copyright with the public interest." Effect on Broadcasting. HE fourth section of the report deals with the results of the Convention and the technical means to be adopted to bring New Zealand legislation within the Convention. (Continued on Page 2.)

(Continued from Page 1.) Coming to the points of particular interest of Usteners, the report deals with the broadcasting part of public performances, Under heading of "Public Performing Rights," it says :- "Copyright," according to the Dnglish and New Zealand statutes, includes "the sole right to perform the work or any substantial part thereof in public"? The public performing right so secured to the copyright-holder by these statutes is far greater than what the Convention of Rome requires. Public performances may be given in three wayst By broadcast by mechanical instruments; directly-i.e., where the performer is in the presence of his audience, Let us consider each of these methods separately.

1. Broadcasting. "Under existing New Zealand legislation the copyright-holder has sole right of communicating his work to the broadcaster. He may ask any price or terms he pleases, give preferences, or prohibit without reason assigned, the broadcasting of his work. He has absolute control. An attempt to establish by the convention copyrightholders’ rights in radio diffusion substantially the same as those now existing in New Zealand provided the hottest controversy at the Rome Conference. It was championed by France and actively supported by nearly all the countries of the Union; it was opposed by New Zealand, Australia, and Norway. "On the one hand, it was claimed that the author’s rights over the products of his brain should be complete and that his right of property was sacred. On the other hand, it was urged that the broadcast was a public utility subject to public control upon just terms; that broadcasting was yet in its infancy, and the conferment of absolute rights which might conceiyably be abused would be a mistake, and -that the proper course to adopt was to reserve powers to the Legislatures of the various countries to deal with these rights.

"Ultimately an article in the following terms was agreed upon :- "Article 11 bis,

"(1) Authors of literary and artistic works shall enjoy the exclusive right to authorise the communication of their works to the public by radio communication. "(2) The national legislation of the countries of the Union may regulate the conditions under which the right mentioned in the preceding paragraph shall be exercised, but the effect of those conditions will be strictly limited to the countries which have put them in foree, Such conditions shall not in any case prejudice the moral rights. (droit moral) of the author, nor the right which belongs to the author to obtain an equitable remuneration, which shall be fixed, failing agreement, by the competent authority."

"This article your delegate considers satisfactory. It reserves power to each country’s Legislature to control within its own national area the exercise of the right. That was the provision contended for by New Zealand throughout the Conference. Power is thus given to adopt a compulsorylicense system, or any other system; and in this connection comparison with Article 13 and consequent Wnglish legislation is instructive. The principle of compensation was never contested by New Zealand, as that country does not contemplate turning highwayman, but wishes only to secure itself against monopolies. 2. Mechanical Musie-Public Performances.

"Public performance of this class is generally accomplished by gramophone amplified. By Article 18 the exclusive right is conferred upon authors of musical works to authorise the public performance of the said works by means of these instruments, but reservations or conditions relating to the application of this article may be determined by the domestic legislation of

each country in so far as it is concerned. "In relation to Article 18, it is to be noted :- (a) The only works protected by this article are "musical" ones, All others, such as_ lectures, readings, and speeches, delivered through the gramophone, are unprotected by the convention. (b) The reservation has been used in Britain and other countries for purposes of acquiring the right to make records by compulsory license. (c) It is competent to the Legislature to authorise compulsory license or other system of acquiring public performance rights of gramophone records.

3. Direct Performance. "Article 11 of the Rome Convention repeats Article 11 of the Berlin Convention, 1908, and affords copyright protection for public performances of dramatic, dramatico-musical, and musical works. It is to be noted(a) Other public performances, such as lectures, readings, and speeches, are unprotected by the convention. (b) There is no express reservation to each country to deal with direct public performance rights under this article as there is under the Broadcasting 11 bis and the Mechanical Music Article 13.

"It will no doubt, therefore, be claimed by the Performing Rights Association that the New Zealand Legislature is not entitled to control in any way the exclusive right of the author conferred by this article. " The following propositions can, however, your delegate considers, be maintained with regard to the group of public performances now being con-sidered-namely, direct performances: (1) That if the exclusive right con(2) (3 ~- ferred by Article 11 is or may be so exercised as to become an abuse, then the New Zealand Legislature can control it. That what constitutes an abuse is a question exclusively for the Legislature, subject to its acting honestly and reasonably. That the New Zealand Legislature may provide for compulsory license or other scheme upon payment of a royalty, percentage on door or other receipts, or other -mpensation to the copyright-holder, to be assessed in such manner as the Legislature thinks fit.

The propositio. are maintainable because they are accepted and have been acted upon by various countries of the Union. Various Viewpoints. "Some countries hold that power is inherent in the State to suppress or otherwise deal with abuses, as, fc. instance those arising out of monopolistie or trade conditions. In some countries legislation is not necessary-the power is what we call a common-law power; in others, legislation is requisite. All these countries, however, hold that an international Convention cannot interfere with this power, whether exercised through the Judiciary or Legislature.

"On May 11, 1928, in the early days of the Conference, a proposal j standing in the name of Australia and ° New Zealand was moved by the New Zealand delegate as follows: ‘While recognising the rights given by Articles 11 and 11 bis, the countries of the Union do not relinquish the power to take measures against any abuse which may arise in the exercise of the said rights.’ "The leader of the Conference (M. Giannini, of the Italian Delegation) opposed the proposal on the ground that, as every country’s Legislature and Judicature have inherent power to deal with abuses, the proposal was nof necessary or proper for inclusion ima convention. The proposal was ed. "Adopting M. Giannini’s y...., it follows that determination of whether an abuse arises or may arise must be left to the Legislature or Judicature of each country to determine, and necessarily a very wide latitude in determining must be given to each country. "Norway’s Memoire.-Proposition (3)-is somewhat more difficult. The arguments for it are set forth in a memoire placed by the Norwegian delegation before the Conference. The arguments are developed with much skill and knowledge in the memoire, and, briefly, are that when the substance of Article 11 was adopted ut the first International Conference-that of Berne, in 1886 (see Article 9, Berne Convention, 1886)-the royalty system, or something similar, was operating in various countries; that the Berne C ference was occupied with establishing the right of a foreign author’ to equal copyright protection i: other countries of the Union to that of natives, and not with establishing a uniform code throughout the Union; and that accordingly the royalty or other system was not within the purview of, or dealt vith by, the Berne Conference or by the subsequent conferences at Paris in 1896 and Berlin in 1908.

"The Norwegian arguments were not contested at the Rome Conference. "Norway and Denmark, and it may be other countries, act upon this view _ without objection, It therefore seems to the New Zealand delegate that it may safely be adopted by New Zealand. "Before parting with this branch of the subject, it is to be observed Gl Raestadt, the Norwegian delegat writer of repute on international 1° concurred with your dele, te in the view that the arguments. advanced in t Norwegian meloi: had no :.pplication to broadcasting. In 1886 control by each country’s Legislature wis ir. plied: in 1928 the o ‘te conc.tign existed, and control was excluded unless expressly reserved. Norway? therefore acted with Australia and New Zealand in insisting upon the ré; servation ultimately incorporated i Article 11 bis-the }- -asting arviclé. Suggestions for Legisl:?*.h. | UGGESTIONS for -egislation are dealt with as follows:"Copyright legislation hitherto Has mainly concerned itself with protecting against piracy of literary and artistic works as exprest . in print, musical sheets, engravings, photographs, etc., and public performances of musical, dramatic, and similar cla:. of works by (Concluded on page 31.)

Reports on Copyright Position

(Continued from page 2.)

performers in the presence of their audiences. "Discoveries and inventions resulting in cinematography, mechanical music, and broadcasting have effected a change of conditions. These inventions have three things in common: (1) They provide a world-wide audience; (2) they are all concer 1{-with performance, and two of them (cinematography and broadcasting, entirely with public performance; (3) all invyolve great capital enterprise. "The world-wide Performing Rights Association, contrclling virtually all public-performance copyrights, discharge two useful functions: they efficiently protect copyright-holders and by their representative character straighten out difficulties which would bé ‘occasioned by attempting to deal with numerous individual copyrightholders. "The Holland delegution suggested at the Conference compulsory concentration of broadeasting performing rights in one great association in each country, but as the suggestion was also cou_'ed with many details it was unacceptable. é "Any attempt to limi. the right of the copyright-holder to deal as he pleases with. his ‘performir z-right’ is resented. Such a limitation can only be Ly some form of expropriation, and as such needs very careful consideration. The gramophone business has been built , upon the compulsory-license system, and many gramophone companies have made vast profits, decl...ed large dividend and bonuses, and their shares have appreciated five, six, and seven fold. While this has been going on, the payments to composer. have been ridiculous], small. Moreover, while the composer has received little for his work, the executants of the composer's musie, if skilled and popular, receive grea’ sums, runni.,, i.to thousands of pounds in some caves.: The foregoing is the statement of the composer’s case as brought under your delegate’s notice. On the other hand, complaints aré rife of the exactions of the Performing Rights Association wherever they have unlimited property rights; and in British countries, outside of mechanical music, they have such rights at present. The complaints arise mainly in connection with broadcasting. Your delegate has heard ex parte statements from representatives of both sides, but it has not been part of his duty to hold an inquiry, nor has he done so. What he has done is to concentrate his energies upon reserving for the New Zealand Legislature power to deal with ihis matter, and Article 11 bis secures that power. Suggestions. "Note.-Such of the following suggestions as deal with broadcasting and public pérformance rights proceed upon

the assumption that the New Zealand Legislaturé adopts the view that they should be subject to control. (a) (b) (c) (d — (e) (f) That the existing copyright law, conferring upon copyright-hold-ers public performance rights, needs alteration to meet presentday conditions. Some system of compulsory license be established, thus affording protection against overcharge and other abuses. That a ‘competent authority’ to deal with compensation in default of agreement, in terms of Article 11 bis, be appointed. To avoid delay it may be desirable to allow performance before assessment of compc.tsation in certain events and subject to proper safeguard. Whether compensation shall be on a royalty ‘asis, a percentage-on-door-receipts basis, or other method, is a question needing investigatio... Probably the method must vury with conditions. Public performance may oceur in m: 3y «.ys-eg., in a restaurant, in a crowded city theatre, or in a remote country hall-and may be of items verying from a great musical work to a temporarily popular jazz. Concentration in one rey *sentatative body of performing rights seems necessary. At present the Australasian Performing Rights Association appears to fill this position. (g) Broadcasting muy play a very important part in educational work, and some of the Continéntal delegates attached much importance to ‘hat aspect of it, particularly when coupled with television, an invention rapidly developing. It is already used in t teaching of languages. This use possibly needs legislative pre tion. (h) Broadcasting is in the nature (1) (Jj) of a public utility. The modern tendency is toward State ownership or control. Britain has adopted it, and a recent cablegr. n in the ‘Times’ indicates Canada is contemplating the same thing. Apart from br. ‘casting and public performances, New Zealand may consider it desirable to await the British legislative proposals. There is apparently little divergence between British and New Zealand views in the other alterations effected by the Rome Conyeution. As the nee.. of the various Dominions are much the same, conférence with them, and particularly with Austr. ia, where the Australasian Performing Rights Association also operates, seems desirable.