The right to communicate the work to the public

Question 1

Whats does art 11, art 11bis and art 11ter say about communication to the public?

Answer 1

Berne Convention Article 11. Certain Rights in Dramatic and Musical Works:
(1) Authors of dramatic, dramatico-musical and musical works shall enjoy the exclusive right of authorizing:
(i) the public performance of their works, including such public performance by any means or process;
(ii) any communication to the public of the performance of their works.

Berne Convention Article 11bis. Broadcasting and Related Rights
(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing:
(i) the broadcasting of their works or the communication thereof to the public by any other
means of wireless diffusion of signs, sounds or images;
(ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one;
(iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.

Berne Convention Article 11ter. Certain Rights in Literary Works:
(1) Authors of literary works shall enjoy the exclusive right of authorizing:
(i) the public recitation of their works, including such public recitation by any means or process;
(ii) any communication to the public of the recitation of their works.

Question 2

What’s the difference between public performance and communication to the public?

Answer 2

• “Public performance” = performance to live audience
• “Communication to the public” = transmission to a distant audience

Question 3

Explain the right of communication to the public in the EU according to InfoSoc.

Answer 3

• It covers “all communication to the public not present at the place where the communication originates”
• It covers “any transmission or retransmission of a work to the public by wire or wireless means”
  – InfoSoc Dir., Rec. 23
• It includes the right of “making available to the public” by way of “interactive on-demand transmissions” – InfoSoc Dir., Rec. 35
• Is not subject to the rule of exhaustion (unlike the distribution right) – InfoSoc Dir., art 3(3)

What is not included?
* “Conventional” forms of communication to the public, e.g. live presentation or performance
(CJEU Circul Globus Bucureşti, C-283/10)

Question 4

Explain what are the differences in case a radio channel wants to broadcast a song, and in case spotify wants to make the song available in europe

Answer 4

Radio 110 wants to broadcast the song. They must clear the following rights:
* Authors: exclusive right (InfoSoc Dir., art. 3.1)
* Performer and Phonogram Producer: right to receive equitable remuneration (R&L Dir, art. 8.2)
* (Both administered in Italy by Collective Management Organizations: SIAE / SCF)
…And, as a “Broadcasting organization”, they acquire the following rights:
* Exclusive right to prohibit wireless re-broadcasting & communication in public paying places (R&L Dir, art. 8.3)
* Exclusive right to make fixations of their broadcast available to the public (InfoSoc Dir., art. 3.2.d)

Spotify wants to make the song available to their subscribers. They must clear:
* Authors: exclusive right (InfoSoc Dir., art. 3.1)
* Performer and Phonogram Producer: exclusive right (InfoSoc Dir., art. 3.2)
(In reality, the record company owns all the rights and negotiates a royalty fee with Spotify)

Question 5

Explain the decision of the CJEU on the communication to a new public

Answer 5

SGAE v Rafael Hoteles SL Case C-306/05 [2006]:
Television sets installed in hotel rooms
* “Public” = (a) indeterminate number of potential listeners or viewers and (b) a fairly large number of persons (considering not only how many persons have access at the same time, but also in succession).
* “Communication” = independent act through which the broadcast work is communicated to a new public
* Role of the user: full knowledge of the consequences of the act
* Provision of an additional service performed with the aim of obtaining some benefit

Football Association Premier League v QC Leisure & Murphy v Media Protection Services, Joined
Cases C-403/08 and C-429/08 [2011]:
TV decoders installed in pub to receive signal of football matches
“in order for there to be a “communication to the public” […] it is also necessary for the work […] to be transmitted to a new public, that is to say, to a public which was not taken into account by the authors of the protected works when they authorised their use by the communication to the original public (§ 197)”

Question 6

Summarize the right of communication to the public in the EU

Answer 6

Individual assessment which must take account a number of complementary, interdependent factors :
* Nature and effect of the communication
* Knowledge of the consequences of the communication
* Whether the work was communicated using different technical means
* Whether it was communicated to a “new” public
* The profit-making nature of a communication

Question 7

Whats the definition of “in public” by the US legislation?

Answer 7

17 U.S. Code § 101 - Definitions
To perform or display a work “publicly” means—
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

The public display right - § 106(5)
* Broadly defined as “to show a copy of [the work], either directly or by means of a film, slide, television image, or any other device or process …”.
* It does not apply to motion pictures (only to individual images)

Section 109(c) explains that once the copyright owner has sold a copy of the work, the purchaser has the right to display the copy in public.

Question 8

Explain the case American Broadcasting Companies v. Aereo.

Answer 8

• Does Aereo perform the TV programs publicly? (Or does it merely supply technical equipment that allow others to do so?)
• Second Circuit: No public performance, because it does not transmit “to the public.” Rather, each time Aereo streams a program to a subscriber, it sends a private transmission that is available only to that subscriber.
• Supreme court: Yes
• Aereo is not just an equipment provider: it provides users with a “viewer experience”
• Individual transmission is still transmission to the public: analogy with cable transmission