Abstract
It must not be concluded from the fact that, out of those taking part in the manufacture of a gramophone record, we are dealing with the manufacturer in the last place, that we deem him to be a less important link of the chain. On the contrary, the share taken by him in that process is, to our mind, equally important as that of the creative and the performing artist: neither of this trio can be dispensed with.
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References
Think of, for instance, “Grandfather’s Clock” which, a couple of years ago, made a tremendous hit in the form it was presented in by Evelyn Knight.
The fact of the author’s name not being mentioned on a work does not entitle the manufacturer to freely exploit that work. The Rotterdam District Court decided on 11–12–1922 (N.J. 1923, p. 1067) that the fact of the author having kept his authorship a secret, does not imply that the manufacturer was unable to find out who the author was, because — with the normal precaution — it should certainly have been possible for him to discover the work’s origin.
p. 68/9.
p. 135/6.
According to art. XII (8) of the B.I.E.M.-contract, royalties do likewise not become due before that time.
In art. 32 of the Dutch and s. 11. — (1) (b) of the British as well as in s. 25. — (1) (b) of the Canadian Copyright Act this requisite is explicitly laid down.
Cf. Du Pasquier, p. 19/20.
Id.: Du Pasquier, p. 20 and Copinger, p. 230: “.....manufacturers of rolls and discs were in the habit of suffering considerable injury from having their rolls and discs pirated by other manufacturers. The original manufacturer might expend considerable skill and money in adapting a work for mechanical reproduction or hiring a band or singer to play or sing with a view to the making of the record, and then another manufacturer, without incurring any such labour or expense, might copy the first record, either directly or indirectly, from the original”.
Id.: Copinger, p. 230; Fox, p. 185.
Id.: Olagnier, II, p. 270.
Du Pasquier, p. 24.
This is borne out immediately by the fact that in its first decades of existence the gramophone record — technically speaking — did not lend itself to any other use. Not until the invention of the electrical reproduction technique could the record be used for public performances with any kind of success whilst it became a very serviceable means, too, for broadcasting purposes in the course of time. Therefore, this secondary use came to development only at a later period.
Evans, p. 152; du Pasquier, p. 17.
Bollecker, p. 111; Escholier, p. 155/6; du Pasquier, p. 17.
It cannot be denied, however, that there are in this domain too, a good few who possess a sound knowledge of music and are quite able to choose in a critical and unbiassed way.
When the secondary use has become fairly intensive during a long period, then a gradual surfeit of the public will appear in this case too and a speedy decrease in the sales of a record will be sure to show up. An illustrative example of this happening is the song “The Thing” which for some time was highly popular in 1951 but whereof the public tired pretty soon, partly on account of the fact that records of it were broadcast so frequently.
p. 16/7.
Audinet, p. 11.
See Audinet, p. 103/4; Straschnov, II, p. 61.
Id.: Straschnov, I, p. 62; Valerio, p. 198.
Partly with the object of realizing a similar protection the “International Federation of the Phonographic Industry” was founded at Rome in 1933, when it passed on the occasion of its first Congress (10–14 November) a resolution reading as follows: „Qu’il est nécessaire d’assurer au producteur un contrôle et une équitable rémunération à l’occasion de toute utilisation industrielle ou à but lucratif du phono-rgamme par autrui”. (Vide du Pasquier, p. 20/1)
See Audinet, pp. 1 and 54; v. Geldern, p. 4; Straschnov, I, p. 61.
Id.: Audinet, p. 54; Escholier, p. 140; du Pasquier, p. 142; Straschnov, I, p. 61/2; Valerio, p. 198.
Cf. Audinet, p. 38; Copinger, p. 231.
p. 4. Id.: Audinet, p. 38/9; Frank, p. 645; Olagnier, II, p. 269/270.
Cf. Audinet, p. 39.
Vide Audinet, p. 35/6; Straschnov, I, p. 61
Frank, p. 645.
Idem: du Pasquier, pp. 95–97 incl. Not so: Bollecker, pp. 126, 127; Pfeffer, p. 40.
Cf. v. Geldern, p. 5.
A somewhat similar view is taken by Straschnov, I, p. 62: “.... le fabricant est en droit de voir le produit de son travail, de ses capitaux et de son ingéniosité protégé pas der normes précises ....”.
II, p. 61.
It will perhaps be said that we have omitted to refer to unfair competition which certainly includes the copying of someone else’s gramophone records. (Du Pasquier, p. 125).
But, to our mind, it is much more preferable to create a specific protection for the manufacturer, not only because, by doing so, every doubt regarding his right, its scope and tenor is then eliminated but, moreover, it will so be possible, in conjunction with the right as regards the secondary use of the records — to be dealt with on p. 152/3 — to realize a fitting system of protection for the manufacturers of gramophone records. (Cf. du Pasquier, p. 169).
II, p. 60/1
A similar right is advocated by Audinet, p. 54; Straschnov, I, p. 62; II, p. 61.
Du Pasquier in this case prefers for practical reasons an exclusive right (p. 170). 3) As to the amount of such a remuneration see our observations on p. 123.
Moreover, du Pasquier, pp. 176–179 incl., pleads for a kind of “droit moral” for the manufacturer and recommends this on the following grounds: „l’activité technique et artistique du producteur, qui donne un moyen de jouir des oeuvres musicales ou littéraires ne justifie-t-elle pas une certaine reconnaissance de la part de ceux qui exploitent ces produits?” (Translation: Does not the technical and artistic activity of the manufacturer who affords the means for the enjoyment of musical or literary works, justify a certain recognition on the part of those who exploit these products?)
We admit that this would not be unreasonable: the same as in the case of the creative and the performing artist, a certain right to recognition can be justifiable, though, to our mind, there is no general foundation for such a right like there is in the case of the above-mentioned artists, seeing that the product turned out by the manufacturer is not an embodiment of his personality but merely the result of material activity. We cannot recommend, therefore, a universal right for the latter, though, on the other hand, we should certainly allow him — if necessary — a certain amount of protection.
In this connection du Pasquier sums up the following rights which, in practice, may prove to be necessary: a) the right of the manufacturer’s name being mentioned when his record is broadcast; b) the right to claim compensation in the event of a faulty broadcast of his record.
Against these we have no principle objections though we wonder whether the interests of the author and the performing artist on the one side, and those of the manufacturer on the other — notably in respect of the second point — do not run parallel to such a degree that a specific right should, after all, not prove necessary for the manufacturer.
Straschnov, II, p. 63.
II, p. 61.
II, p. 62.
Id.: Straschnov, II, p. 52.
Vide Straschnov, II, pp. 62, 63.
Audinet, p. 154; Copinger, p. 270.
Cf. Raestad, pp. 209/210; 213; Straschnov, I, p. 99.
Id.: Frank, p. 645/6; v. Geldern, p. 4/5; Pfeffer, p. 40. 2) Du Pasquier, p. 29.
Vide Audinet, pp. 96–102 incl.; du Pasquier, pp. 33–36 inch; Straschnov, I, p. 112. 4) In our next chapter we shall deal more closely with this judgment. 5) Du Pasquier, p. 47.
Cf. Straschnov, I, p. 138.
Audinet, p. 132.
p. 231. Idem: Fox, p. 188; Straschnov, I, p. 143.
Audinet, p. 132 seems to have overlooked this.
Audinet, p. 132; Copinger, p. 230.
Translation: Besides the right, whereby the author is entitled within the terms of the previous title, the manufacturer of gramophone records or other similar contrivances for reproducing sounds or voices has, for the duration and on the conditions stipulated in the subsequent articles, the exclusive right of reproducing said record or contrivance by whatsoever duplicating process, and of putting it on the market.
Translation: The manufacturer of the gramophone record or other similar contrivance for reproducing sounds or voices has — apart from the exclusive right granted him under the previous article — the right of demanding a remuneration for the utilization, with the intent of profit, of the record or contrivance by means of radio-diffusion, cinematography, television, or at public balls and public manifestations.
Straschnov, I, p. 225.
Id.: du Pasquier, p. 125.
Id.: Audinet, p. 40/1.
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Mak, W. (1952). The Legal Status of the Manufacturer of Gramophone Records. In: Rights Affecting the Manufacture and Use of Gramophone Records. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-0841-4_6
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