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Use of tune as ring tone for mobile phones: It is an offence under copyright. Just find out!

With the coming of the mobile phones towards the end of the last millennium, the markets all over the world have been flooded by different kinds of sets of the cellular phones. These mobile phone sets are offering various kinds of ring tones in a particular set, out of which the user according to his wish can select any ring tone and keep it operational; unlike the ring tones of landline telephone sets which are standard in nature. To make the ring of one’s mobile set easily distinguishable from the ring tone of another mobile set, the manufacturers have made use of small tunes of famous musical works usually without the permission of the copyright holder of that musical work.

Will making use of famous tunes, as ring tones for mobile phones without proper licensing rights from the owner of the copyright of the musical work constitute copyright infringement? Answer to this question can be found out in a recent case decided in the Higher Regional Court of Hamburg, Germany in February 2002 in favour of the mobile phone manufacturers making use of tunes as ring tone.

In this case, the defendant did not use the original recording as performed by the pop group ‘Rednex’, but rather a monophonic synthesizer version as ring tone for mobile set The case first went to Regional Court, which gave the opinion that from the point of substantive law, the use of a song or melody as a ring tone without the express authorization of the author and/ or the respective music publisher violates the owner’s copyright rights.

However, the Higher Regional Court considered use of tune as ring tone as a new and independent type of use. The court based its decision on several factors.

Firstly, the court opined that the defendant could not validly obtain the right to use the musical work as a mobile ring tone from the copyright collecting society GEMA, since the contract entered into between the author and GEMA authorising the collecting society to grant licenses on author’s behalf did not cover the use of the work as a mobile ring tone. The reason being that the use of a composition as a ring tone for mobile phones has to be regarded as a new, formerly unknown, type of use, which under German Copyright Act, may not be validly granted under a copyright contract.

GEMA gave the argument that they had updated its older author’s agreements in 1997, covering the modern use of musical works through electronic storage. However, the court emphasized that the specific use of the composition as a ring tone would not be covered by the author’s agreements since in 1997 it was a new, unknown type of use and not expressly mentioned in author’s agreement.

The court also opined that it was not the entertaining function, which was predominant in a ring tone, but merely the signal function to distinguish one’s ring tone from the mobile phone of another. In contrast to the traditional purpose of a composition, the purpose of a ring tone was that the melody would not be played in its entirely, but rather interrupted by taking the phone call or directing it to voicemail similar to the ring tone of an alarm clock.

Based on the above arguments, the court terminated the case against the defendant and allowed them to make use of the tunes as ring tones for mobile phones.

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