2 MIGRACIÓN VENEZOLANA EN EL CONTEXTO REGIONAL
2.1 LA SALIDA: POSIBLES CAUSAS DE UNA SALIDA FORZADA
The practice of digital sampling grew in the early 1980s when digital synthesizers with Musical Instrument Digital Interface (MIDI) keyboard controls provided the technical possibility to slow down, speed up, manipulate and combine sounds from a sound recording.10 As explained in
Newton v Diamond,11 sampling involves ‘the incorporation of short segments of prior sound
4 As defined in section 3 of the CA 1987, ‘reproduction’ refers to ‘the making of one or more copies of a work in any form or version, and in relation to an artistic work includes the making of a copy in three dimensions of a two-dimensional work and the making of a copy in two dimensions of a three-dimensional work’. ‘Copy’ is defined in section 3 as ‘a reproduction of a work in written form, in the form of a recording or film, or in any other material form’.
5 LexisNexis, Halsbury’s Laws of Malaysia, vol 7 (2003) Intellectual Property [520.082].
6 See, for instance, Longman Malaysia Sdn Bhd v Pustaka Delta Pelajaran Sdn Bhd [1987] 2 MLJ 359. See also Khaw, L.T., Copyright Law in
Malaysia (3rd ed), Petaling Jaya: LexisNexis, 2008, at 229. 7 [1988] FSR 161.
8 Id at 170. 9 Ibid.
10 Robert M. Szymanski, ‘Audio Pastiche: Digital Sampling, Intermediate Copying, Fair Use’, 3 U.C.L.A. Ent. L. Rev. 271, at 277 (Spring 1996). 11 349 F.3d 591 (9th Cir. 2003).
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recordings into new recordings.’12 The inclusion of fragments of a sound recording also involves
the reproduction of the underlying musical works.
It should first be noted that section 13(1) of the CA 1987, which provides the copyright owner’s exclusive rights, applies to both musical works and sound recordings. The reproduction right allows the copyright owners to control the making of copies of their copyright works, either in original or derivative form. Thus, copyright owners of musical works and sound recordings enjoy the reproduction right which includes the right to make adaptations of the work. This differs from the approach adopted in some other jurisdictions such as the UK Copyright, Designs and Patents Act 1988 (hereinafter referred to as ‘the CDPA’) which provides for the adaptation right only in respect of literary, dramatic or musical works, but not in respect of sound recordings, films or broadcasts.13
Section 13(1)(a) of the CA 1987 expressly provides for the exclusive right of copyright owners to control the reproduction of the whole work or a substantial part thereof, and ‘either in its original or derivative form’. ‘Derivative form’ is not defined in the CA 1987. However, section 8 of the CA 1987 which stipulates that derivative works are eligible for copyright protection may offer some clues on the meaning or scope of ‘derivative form’ of a copyright work. Section 8 prescribes ‘translations, adaptations, arrangements and other transformations of works’14 and collections of
12 This definition was adopted by the US Court of Appeals for the 6th Circuit in Bridgeport Music Inc v Dimension Films Inc 410 F. 3d 792, 798 (6th Cir. 2005).
13 Section 21 of the CDPA. As such it may be argued that copyright owners of sound recordings do not enjoy the right to control digital sampling that makes use of their sound recordings under the UK copyright law. However, it may still constitute an infringement of copyright in the relevant musical works if the portion taken is found to be ‘substantial’.
14 Section 8(1)(a) of the CA 1987. Section 3(1) defines ‘adaptations’ as including (a) in relation to a literary work, a version of the work (whether in its original language or a different language) in which it is converted into a dramatic work; (b) in relation to a dramatic work, a version of the work (whether in its original language or a different language) in which it is converted into a literary work; (c) in relation to a literary or dramatic work— (i) a translation of the work; (ii) a version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book or in a newspaper, magazine or similar periodical; (d) in relation to a literary work in the form of a computer program, a version of the work, whether or not in the language, code or notation in which the work was originally expressed not being a reproduction of the work; (e) in relation to a musical work, an arrangement or transcription of the work; (f) in relation to a literary or artistic work, a version of the work (whether in its original language or a different language) in which it is converted into a film.
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works eligible for copyright or compilation of mere data which constitute intellectual creation15 as derivative works which are entitled to be protected as original works. It follows therefore that it is an act of reproduction if a copyright work is translated, adapted or otherwise transformed; and where it is included as a part of a collection of works.
Paragraph (e) of the definition of ‘adaptation’ in section 3 of the CA 1987 explains that adaptation of a musical work includes ‘an arrangement or transcription of the work’.16 It is however silent on
what may constitute adaptation or, more generally, derivative forms of sound recordings. As Khaw observed, ‘… there is no reason to suppose that “derivative form” in relation to a sound recording or a film means anything other than an adaptation, arrangement or transformation of the sound or visual images fixed in the recording, film or broadcast.’ Khaw considered that the reproduction right in respect of a sound recording may cover the right to limit the practice of sampling.17 The inclusion of brief segments of pre-existing sound recordings in the making of a new recording obviously involves an act of reproduction which is within the power of the copyright owner to control as prescribed under section 13(1)(a) of the CA 1987. Copyright owners enjoy the exclusive right to control reproduction, including adaptation or other forms of transformation made of their musical works and sound recordings, and hence, it is submitted that digital sampling would require their permission.
15 Section 8(1)(b) of the CA 1987.
16 The entry of ‘arrangement’ in Encyclopaedia Britannica explains it as ‘in music, traditionally, any adaptation of a composition to fit a medium other than that for which it was originally written, while at the same time retaining the general character of the original. The word was frequently used interchangeably with transcription, although the latter carried the connotation of elaboration of the original, as in the virtuosic piano transcriptions of J.S. Bach’s organ works by Franz Liszt, the Italian composer-pianist Ferruccio Busoni, and others. In later times the definitions were almost reversed, with arrangement connoting musical liberty in elaboration or simplification.’ See Editors of Encyclopaedia Britannica, ‘Arrangement’, Encyclopaedia Britannica Online, 2015, Encyclopaedia Britannica, 4 November 2015 http://global.britannica.com/EBchecked/topic/36011/arrangement. It is noted that the definitions of ‘arrangement’ and ‘transcription’ in Oxford Dictionaries appear to carry a similar meaning in relation to music. ‘Arrangement’ is explained as ‘a musical composition arranged for performance with instruments or voices differing from those originally specified’, while ‘transcription’ is defined as ‘an arrangement of a piece of music for a different instrument, voice, or group of these’.
17 See Khaw, L.T., Copyright Law in Malaysia (3rd ed), Petaling Jaya: LexisNexis, 2008, at 222. See also Sterling, J. A. L., Intellectual Property
Rights in Sound Recordings, Film and Video. London: Sweet & Maxwell, 1992, at para 4.35 where Sterling noted that ‘Sampling, re-mastering
and colourization may involve adaptation of the records which have been used: such operations will in any event involve reproduction.’
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The scope of ‘reproduction’ in section 13(1)(a) as discussed earlier, when read together with section 36(1)18 of the CA 1987, will render an act of reproduction to be an infringing act regardless of the fact that such reproduction may, in some cases, be merely technical. An understanding that ‘the storage of a protected work in digital form in an electronic medium constitutes a reproduction’ was reached and included in the agreed statements to the World Intellectual Property Organization Copyright Treaty (‘the WCT’) and the World Intellectual Property Organization Performances and Phonograms Treaty (‘the WPPT’).19 However, new and innovative uses of copyright works
enabled by digital technologies almost always involve reproduction of the works, particularly where the reproduction is an integral and essential part of a technological process.
Google Books20 is one of the many examples of new frontiers offered by digital technologies. Under Google Books project, books submitted by libraries under the Libray Project and publishers under the Partner Program are scanned and kept under the index of Google’s system. Under the Partner Program, authors and publishers may submit books to Google which will then include them in search results. In this way, authors and publishers can promote their books on a worldwide scale.21 The Library Project includes the collections of some major libraries22 in Google Books. In the same manner as how a card catalog operates, Google Books helps users to find books of their interest easily.23 Google search engine performs a search in response to a user’s inquiry by
18 Section 36(1) of the CA 1987 provides that it is a copyright infringement when a person does or causes any other person to do ‘an act the doing of which is controlled by copyright’, which includes the acts as listed in section 13(1), without the licence of the copyright owner.
19 WCT, agreed statements on Article 1(4); WPPT, agreed statements on Articles 7, 11 and 16.
20 Further to its Google Books Partner Program which enables publishers to submit their publications to Google for scanning and then entering into its search engine, Google fostered partnership with certain major university libraries to make digital copies of their collection available on the internet. See Google Books History, Google Books. 4 November 2015 https://books.google.com/intl/en/googlebooks/partners/tour.html. 21 Promote Your Books on Google – for free, Google Books. 4 November 2015 https://books.google.com/intl/en/googlebooks/partners/tour.html. 22 The libraries include the Austrian National Library, Bavarian State Library, Columbia University, Harvard University, Cornell University
Library, University of California, and the New York Public Library. See Library Partners, Google Books. 4 November 2015
https://books.google.com/intl/en/googlebooks/library/partners.html.
23 Google Books Library Project – An enhanced card catelog of the world’s books, Google Books. 4 November 2015
http://books.google.com/intl/en/googlebooks/library/.
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examining the full text of the scanned collections.24 In order to achieve this, Google copies the whole of the texts submitted to it for implementing the project.25
In The Authors Guild, Inc. v Google, Inc.,26 Judge Chin held that a prima facie case of copyright infringement was established by the plaintiff against Google, the defendant, for digitally copying millions of books and keeping the copies on its server and back up tape.27 According to the judge, the defendant’s act was an infringement of the plaintiff’s reproduction right. The distribution right was also infringed when the defendant made available digital copies for the Library Project partners to download.28
The copyright issues in relation to Google Books call for a reconsideration of how copyright infringement should be determined in light of the development of digital technologies. Traditionally, it will be an infringement if a work is reproduced without the relevant copyright owner’s authorization. While it is clear that the whole of the copyright works are scanned for Google Books purposes, only a few snippets are displayed inclusive of the search terms in many cases.29 The reproduction of the whole of the books takes place ‘behind the scene’, that is, when the books are scanned and kept by Google in entirety on its server but these are not made available
24 As stated in The Authors Guild, Inc. v Google, Inc. 05 Civ. 8136 (DC) at 5, Google had scanned more than 20 million books in entirety under its Library Project. Google Print was announced in 2004 and Google Print Library Project commenced in the same year. In 2005, Google renamed Google Print as ‘Google Books’. By December 2007, over 10,000 publishers and authors from more than 100 countries took part in the Partner Program and 28 libraries participated in the Library Project.
25 Google did not get permission from the copyright owners to scan the books which were still copyrighted. Thus, authors and book publishers commenced a class action lawsuit alleging copyright infringement in respect of the project against Google in 2005. Google reached a settlement with authors and book publishers which was preliminarily approved by the court in 2008. The settlement was later revised and a fairness hearing was eventually held in 2010. As it was a class action, the settlement agreement had to be be fair, adequate and reasonable. In March 2011, Judge Chin delivered his opinion rejecting the agreement, see Authors Guild v Google Inc. 770 F. Supp. 2d 666 (SDNY 2011). The US Court of Appeals for the Second Circuit later vacated the decision on the class action by Judge Chin and remanded the case for consideration of the fair use issues: Authors Guild, Inc. v Google Inc. 721 F.3d 132, 134 (2d Cir. 2013).
26 05 Civ. 8136 (DC).
27 Section 106(1) of the US Copyright Act, which is also known as Title 17 of the US Code (the 17 USC). 28 Section 106(3) of the 17 USC.
29 Google’s search result shows bibliographic information of the book and links of the online bookstores from which a user may purchase the book or libraries where one may borrow the book. In respect of a work of which the copyright has expired, the whole book will be available for reading and downloading. Supra n 23.
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to the public in whole. Be this as it may, regardless of the fact that only a few snippets are displayed, the reproduction right of the copyright owners of the books is infringed.
The reproduction right comes into play also in situations where the copyright owner grants a licence to reproduce the works only in a specified manner instead of a general licence to reproduce the works for all purposes. For instance, Google may in the future decide to use the copies of the books in a different manner from its current practice. Obviously, the question of whether Google may legally do so depends largely on the terms of the agreement between the parties.30 However,
there may be situations where the agreement does not stipulate clearly as to the scope of the licence granted thereunder. On this issue, the Malaysian case of Rock Records (M) Sdn Bhd v Audio One
Entertainment Sdn Bhd31 is relevant. The case involved an application for summary judgement by
the plaintiff for copyright infringement in respect of the unauthorized reproduction of sound recordings in the form of karaoke VCDs by the defendant. The court held that the plaintiff as the copyright owner enjoyed the rights of exclusive control including the right to control the reproduction32 of sound recordings in various material forms or media such as cassettes, laser discs (LD), video compact discs (VCD) or digital video compact discs (DVD).33 Abdul Malik Ishak J
explained as follows,
‘… a licence granted by the copyright owner to reproduce the sound recordings in cassette format does not extend to the right of reproduction of the sound recordings in video compact disc (VCD) format. And a licence to reproduce the
30 If there is a clearly stated agreement on the matter, the parties’ rights and liabilities will be governed by the agreement. In Batiste v Island
Records, Inc. 179 F.3d 217; 1999 U.S. App. LEXIS 13602 for instance, the US Court of Appeals for the Fifth Circuit found that under the
contracts in dispute the plaintiffs had granted the defendant publisher the copyright in the entire musical composition including ‘all rights of whatsoever nature’ relating to the copyright, and the right to license, ‘in any or all fields of use, by any method now or hereafter known, throughout the world, records embodying the performances’. As such the grant was sufficiently wide to encompass the licensing of a record containing a digital sample of the original song.
31 [2005] 3 MLJ 552.
32 Section 13(1)(a) of the CA 1987. 33 Supra n 31 at 563.
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sound recordings in LD format does not extend to the right to reproduce the sound recordings in VCD format.’34
It is clear from the above statements that the reproduction right is severable in terms of the material form or media format in which a copyright work is embodied. The above statement may lend support to the stand that a licence to reproduce hard copies of a copyright work may not extend to reproduction of the same into digital form. Likewise, a licence to make copies in a particular digital form may not authorize the reproduction of the work in another form.
Reference may also be made to Grisbrook v MGN Ltd & Ors,35 an English case in which disputes
arose between the defendant, a newspaper publisher, and the claimant, a freelance photographer. The main issue was whether the claimant’s prior licence granted to the defendant permitting the reproduction of his photographs in the published editions of the newspaper authorized the making available of the photographs to the public via the defendant’s two websites.36
Patten J sitting in the High Court held that the photographers could not have intended to restrain the newspaper publisher’s ability to keep their back editions and such a licence could cover any form of new technology available from time to time. However, this was different from making the back numbers database more widely accessible by the public. Patten J found that the exploitation of the claimant’s photographs by the defendant through its back numbers websites was not envisaged by the parties at the time of granting the licence. Patten J explained that ‘any licence
34 Ibid.
35 [2009] EWHC 2520 (Ch).
36 The claimant supplied the defendant with many photographs for publication in its newspapers. In the absence of any written agreement, it was understood that the claimant owned copyright in each of the photographs and the defendant was sanctioned to publish the photographs in one or more of its newspapers subject to payment to the claimant for every publication. By a letter, the claimant revoked the licence in favour of the defendant to use the photographs. The claimant commenced an action against the defendant claiming licence fees in respect of the use of a certain number of his photographs. The claimant also brought another action alleging copyright infringement on the part of the defendant in offering for sale on its websites some of the claimant’s photographs. The two actions were later consolidated. The two relevant websites republished the defendant’s newspapers in PDF format, which included the plaintiff’s photographs.
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represents a derogation from or relaxation of the copyright owner’s statutory rights’ and thus in the absence of an express agreement, a defendant must vindicate a claim for extending the licence to cover ‘what would otherwise be separate acts of infringement.’37
When the English Court of Appeal heard the appeal,38 the court noted that the case involved no contract in writing39 but a contract by conduct. In such a situation, the licence must be ‘limited to what is in the joint contemplation of the parties at the date of the contract’ and does not embrace ‘new unexpected profitable opportunity.’40 Accordingly, the court refused to accept the suggestion
that the parties had intended by their conduct that the defendant had the right without further payments to make use of the claimant’s photographs by including the photographs on their websites.41 The court observed that newspapers are basically ephemeral but the inclusion of the
pictures into the website renders it ‘a permanent and marketable record easily available world- wide’ which has the potential to diminish ‘the value of the further use’ by the claimant of his photographs.42
The ruling in Grisbrook v MGN Ltd & Ors43 appears to be in conformity with the view expressed by Abdul Malik Ishak J in the Malaysian case of Rock Records (M) Sdn Bhd v Audio One