Compulsory & Statutory Licence

Argentine law 11.723 provides three types of legal licences: two of them concern SADAIC and are provided in the article 36 of Law 11.723. Said article indicates the exclusive powers of the author for authorising a) the recitation, representation and public performance of his/her works, and b) the public dissemination through any media of the recitation, representation and public performance of his/her works.

The subsequent paragraphs of said law contain two legal licences, which did not appear in law 11.723 original draft, but were inserted in 1967, and 1968, respectively:

A-    “Nevertheless, the following shall be lawful and exempted from the payment relevant to the rights of authors and performers fixed by article 56, that is to say: the performance and recitation of literary and artistic works already published, in public shows organised for education purposes, related with the accomplishing of these, education plans and programs, provided that the show is not disseminated outside the place in which it is being performed, and the audience and performance be for free.”

 B-    “The performance or playing of musical works in concerts, the programs and public performances by orchestras, bands, fanfares, choirs and other musical ensembles from institutions belonging to the State: at the national, provincial or municipal levels, are also exempted from the payment relevant to the rights of authors referred to in the above paragraph, provided that the public audience be for free”.

As being exceptions to the rights of authors, these licences are applied in a restricted way, provided that a previous verification of all due requirements had been carried out.

The article 6 of said law contains a further legal licence, relevant to the publishing of works: The heirs or right holders would not be able to oppose the republishing by third parties of the works of the late author, when ten years would have elapsed, the works not being   published by them [the right holders]...

SADAIC is permanently on the alert against the attempts of different social, cultural and even commercial sectors who intend to introduce new legal licences which harm the legitimate rights of authors and composers.

The Copyright Act provides a statutory licence for the reproduction of musical works in records for retail sale, on certain conditions. It has been the experience of AMCOS and its members that the statutory licence is complex, and that compliance is difficult for users and copyright owners.

AMCOS administers the statutory licence on behalf of its members following years of negotiation with representatives of record companies, and grants licences in relation to certain other reproductions of its members’ works.

The Physical Product Agreement supplements the provisions of the statutory licence and grants record companies concessions (e.g. payment on net sales, retention allowances and free promotional copies) that are not available under the statutory licence.

The Austrian Copyright Act does not provide neither for a compulsory licence nor for a legal licence in relation to the first recording of a musical work.

 § 58 of the Austrian Copyright Act only provides for a compulsory licence in relation to audio re-recordings of musical works with or without text.

Belgium Law stipulates in its first article that the author of a literary or artistic work alone has the right to reproduce it or to authorise its reproduction, whatever the manner or the form.

The author affiliated to a collective management society, as SABAM, contractually transfers its exclusivity to the society to which he gave the mandate for the management of its work. However, according to article 2, the author of a literary or artistic work has the full possession of a inalienable moral right, which include the right of disclosure.

On the basis of this article, the first recording of a work should be first authorised by the author(s). The right of disclosure is a moral right that cannot be transferred.

Bulgarian copyright legislation does not contain such provision.

The statutory license regime for the recording of a musical work was abolished with changes on the Copyright law in 1988.

In the domain of author rights, the Chilean national legislation (Law 17336) does not provide for any compulsory or statutory license, for any exclusive right contained in its provisions, including the right of reproduction.

There are no provisions on the first recording in the Law on Copyright in Croatia. The only limitation on exclusive reproduction right is the possibility of reproduction without authorization but against the payment of the equitable remuneration, of parts of the works for educational purposes.

There is also limitation on exclusive reproduction right provided: the possibility of reproduction - without the authorization and without the payment - of already published works for purposes of improving one's personal knowledge.

The existing law will be amended soon and there will be some exceptions taken over from the Information society directive, but the private copying and blank tape will be no more excepted.

In accordance with the Danish Copyright Act the exclusive right to first recording is solely possessed by the author.

Article 2 of the Danish Copyright Act regulates the author’s exclusive general right to have at his disposal the right to produce copies of said work and to make said work available to the public. Included in the exclusive right to make copies is the first copying/recording as well as subsequent copies/recordings.

Having given his consent to the very first copying/recording, the author may transfer the right to administer any and all subsequent recordings to NCB. Subsequent recordings/copying can be authorized by NCB on a blanket license basis, provided, however, that the authorization to the very first recording has been given by the author himself.

In the NCB Sound Carrier Contract 1998, which is entered into with producers of a certain category, as well as in the NCB work-by-work licensing conditions, it is specifically defined that first recording is not covered by the NCB authorization, but provides for the author’s own specific and prior consent.

Having failed to get such specific consent from the author, NCB will be willing to assist the author in matters concerning the laying down of bans on further copying and distribution.

Finally the Danish Copyright Act includes very few compulsory legal licenses and none of these are administered by NCB.

There is no provision on compulsory or statutory licenses about authors’ rights in the French copyright law (excepted obviously, the private copy remuneration regime).

There is no provision on compulsory or statutory licenses about authors’ rights in the Greek copyright law, except the private copy remuneration regime - Article 18).

There is no provision in the copyright law that govern First Recording. A producer that intends to use a musical work for First Recording has to apply for First Original Recording Licence by giving to the copyright owner a prescribed notice known as the Schedule 2.

The copyright owner may or may not grant such licence. Once this licence is issued by the copyright owner and is accepted by the producer, the musical work becomes a licensed recording and will be subject to the payment of royalties.

In Hungary, there is no compulsory or legal licence in force on any act of reproduction.

No legal license is in force in Italy in the field of phono mechanical reproduction right.

A very limited exception is in force for ephemeral reproductions made by the State broadcasting entity RAI.

There is no distinction between first recording (fixation) and further reproduction in the present Italian Copyright Law as far as author's phono mechanical reproduction right is concerned. This situation should not change after the implementation of the Copyright Directive.                                                              

A specific regulation of private reproduction for personal use will be introduced by implementing the directive.

Extract of the Israeli’s Law:

1525    Provisions as to mechanical instruments

19.—(1) Copyright shall subsist in records, perforated rolls, and other contrivances by means of which sounds may be mechanically reproduced, in like manner as if such contrivances were musical works, but the term of copyright shall be fifty years from the making of the original plate from which the contrivance was directly or indirectly derived, and the person who was the owner of such original plate at the time when such plate was made shall be deemed to be the author of the work, and, where such owner is a body corporate, the body corporate shall be deemed for the purposes of this Act to reside within the parts of His Majesty’s dominions to which this Act extends if it has established a place of business within such parts.

(2) It shall not be deemed to be an infringement of copyright in any musical work for any person to make within the parts of His Majesty's dominions to which this Act extends records, perforated rolls, or other contrivances by means of which the work may be mechanically performed, if such person proves-

(a)     that such contrivances have previously been made by, or with the consent or acquiescence of, the owner of the copyright in the work; and

(b)     that he has given the prescribed notice of his intention to make the contrivances, and has paid in the prescribed manner to, or for the benefit of, the owner of the copyright in the work royalties in respect of all such contrivances sold by him, calculated at the rate hereinafter mentioned:

Provided that-

(i)  nothing in this provision shall authorise any alterations in, or omissions from, the work reproduced, unless contrivances reproducing the work subject to similar alterations and omissions have been previously made by, or with the consent or acquiescence of, the owner of the copyright, or unless such alterations or omissions ire reasonably necessary for the adaptation of the work to the contrivances in question; and

(ii) for the purposes of this provision, a musical work shall be deemed to include any words so closely associated therewith as to form part of the same work, but shall not be deemed to include a contrivance by means of which sounds may be mechanically reproduced.

(3) The rate at which such royalties as aforesaid are to be calculated shall-

(a)     In the case of contrivances sold within two years after the com­mencement of this Act by the person making the same, be two and one-half per cent.: and

(b)     in the case of contrivances sold as aforesaid after the expiration of that period, five per cent.

on the ordinary retail selling price of the contrivance calculated in the prescribed manner, so however that the royalty payable in respect of a contrivance shall, in no case, be less than a halfpenny for each separate musical work in which copyright subsists reproduced thereon, and, where the royalty calculated as aforesaid includes a fraction of a farthing, such fraction shall be reckoned as a farthing:

Provided that, if, at any time after the expiration of seven years from the commencement of this Act, it appears to the Board of Trade that such rate as aforesaid is no longer equitable, the Board of Trade may, after holding a public inquiry, make an order either decreasing or increasing that rate to such extent as under the circumstances may seem just, but any order so made shall be provisional only and shall not have any effect unless and until confirmed by Parliament; but, where an order revising the rate has been so made and confirmed, no further revision shall be made before the expiration of fourteen years from the date of the last revision.

(4) If any such contrivance is made reproducing two or more different works in which copyright subsists and the owners of the copyright therein are different persons, the sums payable by way of royalties under this section shall be apportioned amongst the several owners of the copyright in such proportions as, failing agreement, may be determined by arbitration.

(5) When any such contrivances by means of which a musical work may be mechanically performed have been made, then, for the purposes of this section, the owner of the copyright in the work shall, in relation to any person who makes the prescribed inquiries, be deemed to have given his consent to the making of such contrivances if he fails to reply to such inquiries within the prescribed time.

(6) For the purposes of this section, the Board of Trade may make regulations prescribing anything which under this section is to be pre­scribed, and prescribing the mode in which notices are to be given and the particulars co be given hi such notices, and the mode, time, and frequency of the payment of royalties, and any such regulations may, if the Board think fit, include regulations requiring payment in advance or otherwise securing the payment of royalties.

(7) In the case of musical works published before the commencement of this Act, the foregoing provisions shall have effect, subject to. the following modifications and additions:

(a)     The conditions as to the previous making by, or with the consent or acquiescence of, the owner of the copyright in the work, and the restrictions as to alterations in or omissions from’ the work, shall not apply :

(b)     The rate of two and one-half per cent. shall be substituted for the rate of five per cent, as the rate at which royalties are to be calcu­lated, but no royalties shall be payable in respect of contrivances sold before the first day of July, nineteen hundred and thirteen, if contrivances reproducing the same work had been lawfully made, or placed on sale, within the parts of his Majesty’s dominions to which this Act extends before the first day of July, nineteen hundred and ten :

(c)     Notwithstanding any assignment made before the passing of this Act of the copyright in a musical work any rights conferred by this Act in respect of the making, or authorising the making, of contrivances by means of which the work may be mechanically performed shall belong to the author or his Legal personal represen­tatives and not to the assignee, and the royalties aforesaid shall be payable to, and for the benefit of, the author of the work or his legal personal representatives :

(d)     The saving contained in this Act of the rights and interests arising from, or in connexion with, action taken before the commence­ment of this Act shall not be construed as authorising any person who has made contrivances by means of which the work may be mechanically performed to sell any such contrivances, whether made before or after the passing of this Act, except on the terms and subject to the conditions laid down in this section :

(e)     Where the work is a work on which copyright is conferred by an Order in Council relating to a foreign country, the copyright so conferred shall not, except to such extent as may be provided by the Order, include any rights with respect to the making of records, perforated rolls, or other contrivances by means of which the work may be mechanically performed.

(8) Notwithstanding anything in this Act, Where a record, perfor­ated roll, or other contrivance by means of which sounds may be mechanically reproduced has, been made before the commencement of this Act, copyright shall, as from the commencement of this Act, subsist therein in like manner and for the like term as if this Act had been in force at the date of the making of the original plate from which the contrivance was directly or indirectly derived;

Provided that-

(i)   the person who, at the commencement of this Act, is the owner of such original plate shall be the first owner of such copyright; and

(ii) nothing in this provision shall be construed as conferring copy­right in any such Contrivance if the making thereof would have infringed copyright in some other such contrivance, if this provision had been in force at the time of the making of the first-mentioned contrivance.

Extract of the Japanese Copyright Law on Compulsory licence

Section 8: Exploitation of Works under Compulsory License

(Exploitation of works in the case where the copyright owner thereof is unknown)
Article 67. (1) Where a work has been made public, or where it is clear that it has been offered to or made available to the public for a considerable period of time, the work may be exploited under the authority of a compulsory license issued by the Commissioner of the Agency for Cultural Affairs and upon depositing on behalf of the copyright owner compensation the amount of which is fixed by the Commissioner as corresponding to an ordinary rate of royalty, provided that, after the due diligence, the copyright owner cannot be found for the reason that he is unknown or for other reasons.

(2) Copies of the work reproduced in accordance with the provision of the preceding paragraph must bear an indication to the effect that the reproduction of these copies has been licensed in accordance with the provision of that paragraph and give the date when the license was issued.

(Broadcasting of works)

Article 68. (1) A work already made public may be broadcast by a broadcasting organization under the authority of a compulsory license issued by the Commissioner of the Agency for Cultural Affairs and upon payment to the copyright owner of compensation the amount of which is fixed by the Commissioner as corresponding to an ordinary rate of royalty, provided that such organization requested the authorization to broadcast the work from the copyright owner and failed to reach an agreement or that the organization was unable to enter into negotiations with him.

(2) Works thus broadcast may also be diffused by wire or communicated publicly by means of a receiving apparatus upon payment to the copyright owner of compensation the amount of which corresponds to an ordinary rate of royalty, except in the case where the provisions of Article 38, paragraphs (2) and (3) shall be applicable.

(Recording on commercial phonograms)

Article 69. When commercial phonograms have been sold for the first time in this country and after the expiration of a period of three years from the date of such first sale, a person who intends to make a sound recording of a musical work already recorded on such phonograms with the authorization of the copyright owner and thereby to manufacture other commercial phonograms may make such recording or offer such recording to the public by transfer of ownership under the authority of a compulsory license issued by the Commissioner of the Agency for Cultural Affairs and upon payment to the copyright owner of compensation the amount of which is fixed by the Commissioner as corresponding to an ordinary rate of royalty, provided that such person requested the authorization from the copyright owner to make a sound recording of the work or to offer such recordings to the public by transfer of ownership and failed to reach an agreement or that he was unable to enter into negotiations with the copyright owner.

(Procedures and standards of compulsory licensing)
Article 70. (1) Applicants for a license mentioned in Article 67, paragraph (1), Article 68, paragraph (1) or the preceding Article shall pay application fee, the amount of which shall be fixed by Cabinet Order, taking into account actual cost.

(2) The provision of the preceding paragraph shall not apply in the case where a person who shall pay an application fee in accordance with the provision of that paragraph is the State or such an independent administrative organ as is designated by Cabinet Order, taking into account contents of its business or other circumstances (referred to as "the State, etc." in Article 78, paragraph (5) and Article 107, paragraph (2)).

(3) Upon receipt of an application for a license mentioned in Article 68, paragraph (1) or the preceding Article, the Commissioner of the Agency for Cultural Affairs shall notify the copyright owner concerned thereof in order to afford him an opportunity to express his opinion within an adequately specified period of time.

(4) Even upon receipt of an application for a license mentioned in Article 67, paragraph (1), Article 68, paragraph (1) or the preceding Article, the Commissioner of the Agency for Cultural Affairs shall not issue such license if he recognizes:

(i) that it is evident that the author has the intention to halt forever the publication or other exploitation of his work; or

(ii) that unavoidable circumstances obliged the copyright owner to refuse to give the authorization to the broadcasting organization applying for a license mentioned in Article 68, paragraph (1).

(5) The Commissioner of the Agency for Cultural Affairs shall, when intending to refuse to issue the license, give previous notice to the applicant of the reason for such refusal and afford him an opportunity to explain his position and furnishing evidence favourable to him. The Commissioner shall, when refusing to issue such license, notify the applicant of such refusal in writing accompanied by the reason therefore.

(6) The Commissioner of the Agency for Cultural Affairs shall, upon issuing the license mentioned in Article 67, paragraph (1), give public notice thereof in the Official Gazette and notify the applicant thereof. The Commissioner shall, upon issuing the license mentioned in Article 68, paragraph (1) or the preceding Article, notify the parties concerned thereof.

(7) Other than those provided for in the preceding paragraphs, necessary matters in connection with the licenses mentioned in this Section shall be provided by Cabinet Order.

SECTION 9. EXPLOITATION OF WORKS UNDER LEGAL LICENSE

Article 47 (Exploitation of Works in Which the Owner of Author's Property Rights is Not Known)

(1) Where any person, despite his considerable efforts in accordance with the criteria as

prescribed by the Presidential Decree, could not identify the owner of author's property rights in a work being made public, or his place of residence and therefore is unable to obtain the authorization of the author for its exploitation, he may exploit the work on obtaining the approval of the Minister of Culture and Tourism as prescribed by the Presidential Decree, and depositing a sum of compensation money according to the criteria as determined by the Minister of Culture and Tourism.

(2) The person who exploits a work under the provision of Paragraph (1) shall indicate the fact that the exploitation is made with the approval and the date when the approval is issued.

Article 48 (Broadcasting of Works Being Made Public) Where a broadcasting organization which intends to broadcast a work already being made public for the sake of the public benefit has negotiated with the owner of author's property rights but failed to reach an agreement, it may broadcast the work on obtaining the approval of the Minister of Culture and Tourism as prescribed by the Presidential Decree, and paying to the owner of author's property rights or depositing a sum of compensation money according to the criteria as determined by the Minister of Culture and Tourism.

Article 49. Deleted.

Article 50 (Production of Commercial Phonograms)

If a commercial phonogram has been sold for the first time in this country and after the expiration of a period of three years from the date of the first sale and if any person who intends to produce a commercial phonogram by recording works already being recorded on such a phonogram has negotiated with the owner of author's property rights but failed to reach an agreement, he may produce the phonogram on obtaining the approval of the Minister of Culture and Tourism as prescribed by the Presidential Decree, and paying to the owner of author's property rights or depositing a sum of compensation money according to the criteria as determined the Minister of Culture and Tourism.

There are no provisions on compulsory or statutory licenses about authors right in force in the Netherlands.

Polish Law on Copyright and Neighbouring Rights of 4 February in the version which has been valid since 22 July 2000 includes the following statutory licenses:

Art. 22 – permission to make ephemeral recordings for radio and TV stations

Art. 24 – license for simultaneous and integral dissemination, via collective antenna or cable network, of the works which are broadcast by another radio or TV organization

Art. 25 – license for mass media to use among others

a) reports on current events,

b) current articles and statements on political, economic and social issues,

c) current reporter’s statements and photographs,

d) brief summaries of disseminated works

Art. 26 – permission to use in reports on current events, fragments of works which are made available during these events

Art. 27 – license for scientific and educational institutions to use published works

Art. 28 – license for libraries, archives and schools to make available without charge the copies of published works and to make single copies of published works which are not available on the market

Art. 29 – permission to use minor works or excerpts from larger works as citations or in textbooks and classroom selections

Art. 30 – license for scientific and technical information and documentation centres to make and disseminate documentary studies as well as single copies of fragments from published works

Art. 31 – allowed publicly performances of published literary, musical and composed of words and music works if it is done for non profit purposes

Art. 33 – permission to use artistic works by displaying them in public, by their dissemination in catalogues and publications printed for the purpose of promotion of these works as well as in encyclopedias and atlases if contacting the author for the purpose of obtaining his permission meets obstacles difficult to overcome.

Polish Law does not include statutory license concerning the first recording of works.

There isn't in the Portuguese legislation any legal or compulsory license for the 1st recording of a literary-musical work.

However, for the literary-musical works that have already been recorded the article 144º of the Code of the Right of Author provides the following:

1 - The musical work and the respective text that have been the object of phonographic commercial recording without any objection from the author may be recorded again.

2 - The author is always entitled to an equitable remuneration, and it is incumbent upon the Ministry of Culture, in the absence of an agreement between the parties, to determine a fair amount.

3 - The author may cease the exploitation if the technical quality of the recording compromises the correct communication of the work".

Copyright Act 98 of 1978

Chapter 1: Section 14 - Special exception in respect of records of musical works

(1) The copyright in a musical work shall not be infringed by a person (in this section referred to as the ‘manufacturer’) who makes a record of the work or of an adaptation thereof in the Republic, whether from an imported disc, tape, matrix or otherwise, if-

(a) records embodying the work or a similar adaptation of the work were previously made in or imported into the Republic for the purposes of retail sale and were so made or imported by, or with the licence of, the owner of the copyright in the work;

(b) before making the record the manufacturer gave the prescribed notice to the owner of the copyright of his intention to make it;

(c) the manufacturer intends to sell the record by retail or to supply it for the purpose of resale by retail by another person or to use it for making other records to be so sold or so supplied; and

(d) in the case of a record which is sold by retail or supplied for the purpose of resale by retail, the manufacturer pays to the owner of the copyright, in the prescribed manner and at the prescribed time, the prescribed royalties.

In Switzerland the law provides for a compulsory license for the manufacturing of phonograms of a musical work (with or without accompanying lyrics) where the author has already granted first usage authorisation for the work in Switzerland or abroad. The conditions and remuneration for the reproduction are subject to Swiss regulations.

There are other restrictions on the author's exclusive rights in relation to private usage, quotation, archives copies and back-ups and news reporting.

Link to the Turkish law

There is nothing in UK legislation on first recording restrictions. However, it was set down as a valid restriction in the audio product schemes by the Copyright Tribunal. It is also of course in the MCPS membership agreement.

 Whilst there aren’t any restrictions in UK legislation, seeing as AP2 was laid down by the Tribunal, it might be helpful to see the relevant term from our AP2 licence. This is attached below.

Extract from AP2 Agreement: FIRST RECORDINGS

9.1      Where in relation to any particular Musical Work no Disc embodying that Work has previously been manufactured in or imported into the EC with the consent of the party entitled to grant consent for such reproduction or importation, the licences referred to in clause 6 shall not apply in relation to that Work until all the relevant members of the Society owning or controlling the rights in that Work have consented to the grant of the licence in accordance with this Agreement.

9.2       Such consent shall be deemed to be applied for from the Society when following the procedure set out in clause 4. Alternatively, such consent may be applied for either from the Society or direct from the relevant member(s) by using the consent form appearing at Annex B. Copies of such forms may be obtained from the Society. Where the Producer obtains consent direct from the member(s), the Producer shall when submitting the AFL to the Society as referred to in clause 4 send with it a copy of the completed and signed consent form.

9.3          In the event that the Producer bona fide wishes to know whether or not a particular Musical Work is subject to the restriction referred to in clause 9.1, the Producer may enquire of the Society also by using the standard for set out in Annex B. Such enquiry shall be sent to the Society by registered post and the Society shall respond to such enquiry within 7 working days of the receipt thereof. In the event that the Society fails to respond within such time, and subsequently the Producer has to make extensive and expensive enquiries which the Producer should not have needed to make had the Society responded, then the Society shall reimburse the Producer its costs in relation to such enquiries.

See the Section 115 of the U.S. Copyright Act  - HFA focuses on the following excerpt for information :

When phono records of a non-dramatic musical work have been distributed to the public in the United States under the authority of the copyright owner, any other person, including those who make phono records or digital phono record deliveries, may...obtain a compulsory license to make and distribute phono records of the work.

In other words, no compulsory license is available for a first recording.