Newsletter
IPO MODIFIES THE INTERPRE-TATION OF FAIR USE
According to an interpretations given by the IPO in April of this year, KTV operators, if intending to transcribe VHS song tapes into electronic files for VOD, may be able to make a claim of fair use. However, after an investigation shows that upper copyright owners of music works and sound re-cordings have granted VOD digital licensing, and such transcription would change or affect markets licensed by the upper owners, the IPO now points out that, subject to Subparagraph 1, Article 22 of the Copyright Act, unless otherwise stipulated by the Act, a copyright owner has the exclusive right to reproduce his works.
According to Article 37 of the Act, copyright owners may grant a license to others for the use of their works, and the place, time, contents and methods for the licensed use, or other matters, should be agreed upon by the parties. Any part of the items stated above that fails to be decided should be presumed to be out of the scope of the license. If such part is approved by a licensor instead of a copyright owner for use, the licensed right may not be sublicensed to a third person.
As KTV operators transcribe song tapes (usually including audio-visual copyrighted works, mu-sical works and sound recordings), copyrights of which are owned by others, into electronic files for the VOD (Video-On-Demand) system, there is an issue concerning an adjustment to licensing modes arising from a switch to scientific and technologically advanced carriers. Copyright owners and users should, pursuant to Article 22 and Article 37 of the Act, establish a licensing system through commercial negotiations to properly solve the issue with respect to old songs and new songs.
In other words, the IPO has altered its opinion, considering the transcription of VHS song tapes, copyrights of which are owned by others, into electronic files for VOD by KTV operators as an exercise of the right to the reproduction of works; and thus, licensing should be obtained from the owners, and fall out the scope of fair-use claim.