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II. RIGHTS
- PUBLIC COMMUNICATION RIGHT
As noted earlier, this right to broadcast (Berne, Article 11bis) may overlap with
the older public performance right in Berne, Article 11. Thus, in the U.S., one
definition of “to perform a work publicly” is:
to transmit or otherwise communicate a performance or display of the
work ... 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 or at different times.
- Providing music to telephone users while they are put “on hold”
may be a public communication
Telstra Corporation Ltd v. Australasian Performing Right Association Ltd,
(1997) 38 I.P.R. 294 (Australia: High Court)
[The plaintiff APRA, the Australian musical performing rights society, claimed
against the defendant telephone company Telstra that the playing of broadcast
or pre-recorded music when an mobile or ordinary telephone user was put on
hold infringed the society’s copyrights. For mobile phones, APRA said that
Telstra was “broadcasting” music, i.e., communicating it by wireless telegraphy
“to the public”. An analogous argument was made for ordinary telephones. Only
the part of the judgments relevant to mobile phones is set out here.]
JUSTICE KIRBY:
The [Copyright] Act was enacted in terms which permitted Australia to subscribe to the [Berne]
Convention. ... The Convention [in articles 11 and 11bis] intended to provide copyright owners
with a broad right to communicate their works to the public, and to afford them protection
against others who usurped or invaded that right. ... It is true that s. 26 of the Act originated at
a time when the specific technology of music on hold did not exist and may not even have been
contemplated. This does not mean that the terms of the legislative provision, properly construed,
may not extend to new technological forms...
There is no contention that the mobile phone network does not involve transmission “by wireless
telegraphy”. The sole issue in contest was whether such transmission, in the context of mobile
phones, could be said to be “to the public”. ...
Can the transmission of music on hold by Telstra be said to be a transmission to the copyright
owner’s public? On the criteria expressed in the case law, it can. Music on hold is played largely
by businesses and other organisations to entertain, placate or distract customers or clientele, in
a way hoped to be congenial to them, while the telephone lines are engaged. Telstra plays or
transmits it as part of its overall telephonic communications enterprise. ... It cannot be described
as “private” or “domestic” in character. A telephone conversation may be private. However, when
callers are placed on hold, they do not hear music simply because the person on the other end of
the line is busy and selects that particular individual as the recipient of the music. They hear the
music because it is intended that any member of the public who calls the engaged number, will
hear the music. A caller hearing music on hold must, therefore, be part of that “public” which
the owner of the copyright in the music contemplates to be part of its audience.
