Private Use
on Musical Works, Rights of Public
Performance,
and Collecting Society Systems.
By'
Judge Visit Sripibool
respect
of the tariff rate or in respect of its duties to its members. Most of
the EU Member States adopt this model, though there is no clear uniformity
in legislative provisions or in dispute resolution mechanisms.(200)
(a) Patent Office
Supervision with Arbitration Bodies.
The
German regulatory system falls within this category. Rights management
organizations are legally based on the German Copyright Administration
Act(201) which sets out a comprehensive code detailing all the conditions,
duties, and activities of societies. Primarily, an organization requires
official permission before commencing its activities. This will be granted,
after fulfillment of certain conditions as set out under the Act, by the
German Patent and Trade Marks Office. Amongst the many duties to be fulfilled,
the Act states that rights management organizations must: administer on
equitable terms the rights and claims of EU right holders; distribute
the collected revenues in a non-arbitrary manner; render accounts and
audits on an annual basis; provide information to any person on whether
they administer exploitation rights in a given work, or have given licenses
on behalf of a member; grant authorization to any person on equitable
terms; and establish a tariff plan for approval. In discharging their
duties, the management organizations are also subject to a 'cultural primacy'
rule in relation to the distribution of revenues. Thus, a collecting society's
distribution plan must ensure that culturally important works and performances
are to be promoted, and that the distribution plan should incorporate
a welfare and assistance scheme. Moreover, all tariff plans should have
due regard to the religious, cultural, and social interests of the persons
liable to pay the remuneration, including the interests of youth welfare.
However, the position if the collecting society is strengthened by way
of presumptions the shifting of the burden of proof on other parties.
For example, a presumption applies that the management organization is
entitled to claim remuneration not only for its numbers but organization
is entitled to claim remuneration not only for its members but for all
holders of copyrights and neighbouring rights for which it has received
proper authorization by the government: the burden of proof that the organization
does not represent certain right holders is placed on the users. The Act
goes further to establish duties for specific types of users of copyright
material. Thus, in relation to public communications and broadcasting
organizations, a statutory obligation is placed on such organizations
to furnish information to the relevant collecting societies on the usage
of copyright works.
Having placed the statutory mantle of an economic and cultural trustee
on collective management organizations, regulatory control is almost inevitable
and necessarily strict. Rights management organizations are placed under
supervisory control of the German Patent and Trade Marks Office whose
duties include: conferment of initial authorization; continuous supervision;
revocation of the warrant to act; and participation. In relation to the
latter, the Office is entitled to participation in members' or executive
board meetings. A further layer of regulatory control is placed via the
special dispute resolution mechanism set up under the Copyright Administration
Law. Disputes concerning the use of copyright protected works, or the
terms of an inclusive contract or cable retransmission contract, may be
referred to the Arbitration Board which is composed of a Chairman/Deputy
and two assessors, who must all possess judicial competency. The procedure
and final decisions of the Board are integrated into the German civil
procedural system. Furthermore, all disputes in respect of subject matter
within the Board's remit cannot be asserted in any civil court proceeding
unless and until they have been dealt with by the Arbitration Board.
(b) Ministerial/Civil
Court Supervision with Limited Arbitration
Belgium,
France, Greece, and the Nordic countries have adopted this variant model.
In
France, the Intellectual Property Code governs rights management organizations
in so far as their principal purpose is to collect and distribute royalties
due from the exploitation of their members' works. The French Code adopts
a more general perspective and sets out limited rules applicable to all
collecting societies, as opposed to any particular category of works or
authors. Management organizations are specifically allowed to tier their
royalty rates according to the purposes for which the works will be used,
and in this manner the cultural role of the collecting society is recognized.
For instance, the law allows it to provide for reduced royalties where
there is some economic or cultural or beneficial progress to be gained,
and the use of undistributed monies derived from bland tape levies and
other sources for various types of cultural aid is sanctioned after a
five-year period. Management organizations are under the aegis of the
Ministry of Culture the duties of which include the supervision of collecting
societies, and the overseeing of the administration of cable-retransmission
rights and other remuneration schemes. However, the ministerial supervisory
role is limited and is played in parallel with the continuing jurisdiction
of the civil courts over all ministerial actions. The French law provides
for the establishment of a specialist administrative dispute-resolution
body in several instances only: the cable retransmission right, the reprographic
copying right, and various other rights to remuneration such as the blank
tape levy and the right of remuneration for performers and phonogram producers.
The Nordic countries implement a unique form of collective management
known as the 'extended collective licensing scheme', which refers to the
system whereby agreements between the collecting society and the user
have binding effect on both society members and non-represented right-holders.
Thus, the extended collective agreement license will give the user the
right to use certain works despite the fact that authors of those works
are not represented by the organization: non-represented right holders
will be treated on an equal basis with represented right holders. However,
the level of supervisory control differs within the Nordic region. In
Sweden, extended collective licensing is recognized by statute, though
actual governmental regulation is restricted to three areas of use: reproduction
of works within educational institutions; the broadcasting of matter by
governmentally appointed radio or television organizations; broadcasting
and cable retransmission rights. The law, in Sweden, does not provide
for a tribunal or arbitration committee, there is provision for dispute
resolution in respect of disagreements arising from extended collective
license clauses in the aforementioned three specific areas. While the
Danish copyright law has similar provisions to those the Swedish law.
But the Danish law is far more regulatory in nature in relation to the
activities of rights management organizations. The higher level of regulatory
control under Danish copyright law appears to be a direct consequence
of the fact that in five specific instances, the law provides exemptions
for the use of works on the basis of statutory licensing. These statutory
licenses are paid for by a right of remuneration. Furthermore, while the
law does not specifically require that all collecting societies operate
on the basis of ministerial approval or supervision, there are exceptions
to this rule in respect of these five specific activities. The copyright
statute further specifies that in the event of any disputes in relation
to an extended collective license, a mediation process must be initiated
which will be under the aegis of the Minister for Culture.(202) A slightly
different model is adopted under the Norwegian Copyright Law, the Norwegian
law further institutes a special Arbitration Commission whose functions
are limited to settling the remuneration payable in respect of certain
uses which are subject to compulsory licenses.
(c) Ministerial/Civil
Court Supervision
Some
Member States have opted to allow the general civil courts to have jurisdiction
over all disputes between parties. Thus, the final model depicts a system
with governmental supervision where challenges to the tariff rates or
license conditions offered by rights management organizations must be
made in the ordinary civil courts. Italy, the Netherlands, Portugal, and
Spain fall into this category.(203) The Italian system has been completely
subsumed into the governmental structure, and the main collecting society
in charge of copyright administration acts not only on behalf of its author-members,
but also on behalf of other governmental bodies in related areas and in
discharge of other non- management statutory duties, such as the specific
tasks of collection the blank tape levy, administering the public cinematographic
register where all Italian feature films and short films are registered,
administering the public software register which functions to publicize
the existence of software and its authorship details, and depositing works
at the Copyright Office in Washington.
Under the Italian Copyright law, the collecting society is expressly granted
lawful monopoly by fact of its status as the recognized statutory public
body charged with the duty and right collectively to exercise an author's
rights including his reproduction, performing, broadcasting, and communication
rights. Although the collecting society is the state-authorized collecting
society, it does not have power to represent all authors but only those
who have mandate the organization, with the sole exception of the cable
retransmission right; thus, the option for individual rights management
is generally not prejudiced. The collecting society in Italy has the power
to institute legal proceedings against copyright violations both in criminal
and in civil courts on behalf of right owners without being granted a
specific power of attorney. A further statutory and, indeed, constitutional
function is the promotion of culture and the diffusion of copyright and
other intellectual works. In general, Italian law does not provide for
any specialized copyright tribunal or for any dispute-resolution mechanisms.
Instead, disputes between members or users against the collecting society
must be submitted to the ordinary civil courts. Nevertheless, the Italian
Copyright Office does have jurisdiction over the determination of royalty
rates where parties cannot reach an amicable settlement in certain instances.
The collecting society in Italy itself is placed under the supervision
of the President of the council of Ministers, and its activities are subject
of scrutiny by the Italian Antitrust Authority.(204)
The system of collecting society of the states in European Union mentioned
above can be concluded that some Member States adopted a tribunal or board
to resolve all disputes relating to royalty rates for all types of collecting
societies' activities; others have adopted provisions which allow for
mediation or civil court resolution for certain types of activities, though
notably in relation to rights subject to compulsory licensing. The remaining
groups have no alternative mechanisms for settling disputes except the
civil courts.
Constitution of
Societies
The
development of collecting societies at the national level has followed
various patterns. In some countries, one organizations has been formed
to represent all or most of the rights of its constituent members. In
other countries, one society may administer the public performance and
broadcasting rights of its members, and another society may represent
the "mechanical reproduction"(sound recording) rights.
The usual pattern is for the society to be registered as a legal entity
(company, etc.) under the respective national laws, Normally there is
an executive board, consisting, in the case of authors, of representatives
of the authors and of their assignees (publishers, etc.).
Rights Administered
As
mentioned above, the rights administered by collecting societies cover
a wide range, including (for authors) public performance (in public places
and places occupied by the public, such as cafes, theatres, restaurants,
public transport vehicles, hotel premises, etc.) wireless broadcasting
(including satellite transmissions), originated cable programmes and cable
retransmission, reproduction for educational and scientific purposes,
and for private use, making of sound recording, inclusion of protected
material in soundtracks of films, and lending and rental. Various aspects
of the reproduction right (such as those of artists and photographers)
may, as mentioned above, be separately administered, and organizations
also exist to administer the artist's resale right (droit de suite) in
countries where this right is recognized. For owners of related rights
there are, for instance, organization administering the broadcasting and
public performance rights of phonogram producers: sometimes these rights
are administered jointly with the right of performers, in other cases
the performers' rights as regards secondary use of phonograms are represented
by a separated organization.
However,
in general concept, the copyright owners can always withdraw their rights
back from the collecting society. In the GEMA decision,(205) the European
Commission ruled that members should be free to assign only particular
categories to rights and to
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(200) See Suthersanen
, supra note 181, at 26-32.
(201) The German Law on the Administration of Copyright and Neighbourinng
Rights of 9 September, 1965.
(202) The Danish law on Copyright 1995.
(203) See Suthersanen, supra note 181, at 31.
(204) Id. at 32.
(205) [1971] O.J.L134, June 20, 1971; [1972] O.J.L166/22, July 24, 1972.
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