<OrderedList><ListItem><ItemNumber>1.</ItemNumber><ItemContent>A “pre-listening function” allowing a prospective consumer to listen to a 20-second portion of a song by clicking on said pre-listening function before downloading the ringback tone constitutes communication to the public, as it makes the musical work available to the public through the use of the internet and any member of the public can access the samples from a place and time individually chosen by them.</ItemContent></ListItem><ListItem><ItemNumber>2. </ItemNumber><ItemContent>Communication to the public is not inherent in offering and marketing the work (here: the ringtones) to the public. Thus, uploading sample songs in a pre-listening function requires the composers’ consent.</ItemContent></ListItem><ListItem><ItemNumber>3.</ItemNumber><ItemContent>A finding that the use is commercial does not automatically bar the application of fair use. Conversely, the existence of non-profit educational purposes does not always indicate fair use.</ItemContent></ListItem><ListItem><ItemNumber>4.</ItemNumber><ItemContent>The doctrine of fair use allows the courts to deviate from strictly applying the copyright laws when their rigid application would stifle the creativity that they are designed to foster and when it would frustrate the State’s function to promote the diffusion of knowledge and information. In determining whether the complained act falls under fair use, the four initial factors laid down by the IP Code (Sec. 185) and the other factors in particular in each case must be considered altogether. The courts must weigh the factors with great care and consideration of the interests of both the creators and the public.</ItemContent></ListItem><ListItem><ItemNumber>5.</ItemNumber><ItemContent>Here, the use of the sample songs in the pre-listening function does not constitute copyright infringement but rather fair use as the purpose of the pre-listening function is not purely commercial but also serves a public purpose, i.e., consumer protection. Consumer protection may be considered as a similar purpose under Sec. 185 because the pre-listening function provides information about the ringback tones, thus providing potential consumers with means to make an informed choice before deciding to download the songs. Moreover, the pre-listening function cannot serve as a market replacement for the copyrighted work as the samples can neither provide entertainment like the whole song, nor can they be downloaded in lieu of the paid ringtones.</ItemContent></ListItem></OrderedList>

“20-sec. pre-listening function”

期刊论文
发表日期：

2025年11月1日

查看全文

摘要

A “pre-listening function” allowing a prospective consumer to listen to a 20-second portion of a song by clicking on said pre-listening function before downloading the ringback tone constitutes communication to the public, as it makes the musical work available to the public through the use of the internet and any member of the public can access the samples from a place and time individually chosen by them.

Communication to the public is not inherent in offering and marketing the work (here: the ringtones) to the public. Thus, uploading sample songs in a pre-listening function requires the composers’ consent.

A finding that the use is commercial does not automatically bar the application of fair use. Conversely, the existence of non-profit educational purposes does not always indicate fair use.

The doctrine of fair use allows the courts to deviate from strictly applying the copyright laws when their rigid application would stifle the creativity that they are designed to foster and when it would frustrate the State’s function to promote the diffusion of knowledge and information. In determining whether the complained act falls under fair use, the four initial factors laid down by the IP Code (Sec. 185) and the other factors in particular in each case must be considered altogether. The courts must weigh the factors with great care and consideration of the interests of both the creators and the public.

Here, the use of the sample songs in the pre-listening function does not constitute copyright infringement but rather fair use as the purpose of the pre-listening function is not purely commercial but also serves a public purpose, i.e., consumer protection. Consumer protection may be considered as a similar purpose under Sec. 185 because the pre-listening function provides information about the ringback tones, thus providing potential consumers with means to make an informed choice before deciding to download the songs. Moreover, the pre-listening function cannot serve as a market replacement for the copyrighted work as the samples can neither provide entertainment like the whole song, nor can they be downloaded in lieu of the paid ringtones.