Collective Management Organizations Research Articles

An authoritative guide to the DSM Directive

As Eleonora Rosati points out in the Preface to her new book, 2021 is a momentous year for European Union copyright law for three reasons. Firstly, it is the 30th anniversary of the first harmonizing Directive in the field of copyright and related rights, the Computer Programs Directive.1 Secondly, it is the 20th anniversary of the most significant of the 19 Directives and Regulations (if you include the E-Commerce Directive2 and the IP Enforcement Directive3) passed so far, the Information Society Directive,4 the interpretation of which continues to keep the Court of Justice of the European Union busy.5 Thirdly, it is the year in which implementation was due of the most ambitious and complex Directive since the Information Society Directive, namely, the Digital Single Market Directive.6 It is the Digital Single Market Directive that forms the subject of this book. For those who are not yet familiar with it, the Directive is divided into five Titles, supplemented by no less than 86 recitals. Title I, ‘General Provisions’, consists of Articles 1 and 2, which set out the subject-matter and scope of the Directive and various definitions. Title II, ‘Measures to Adapt Exceptions and Limitations to the Digital and Cross-Border Environment’, consists of Articles 5–7, which introduce new mandatory exceptions for text and data mining (Articles 3 and 4), digital and cross-border teaching (Article 5) and preservation of cultural heritage (Article 6). Title III, ‘Measures to Improve Licensing Practices and Ensure Wider Access to Content’, is divided into four chapters. Chapter 1 (Articles 8–11) consists of provisions concerned with the use of out-of-commerce works by cultural heritage organizations, in particular through licencing by collective management organizations. Chapter 2 (Article 12) is intended to facilitate extended collective licencing. Chapter 3 (Article 13) is intended to facilitate access to audiovisual works on video-on-demand platforms and Chapter 4 (Article 14) prevents Member States from conferring related rights (as opposed to copyright where the originality criterion of author’s own intellectual creation is satisfied) upon photographs of works of visual art that are in the public domain. Title IV, ‘Measures to Achieve a Well-Functioning Marketplace for Copyright’, is divided into three chapters. Chapter 1 provides a new related right for press publishers (conceptually similar to, but differing in many details from, the UK typographical arrangement right) (Article 15) and for publishers to be able to receive a share of royalties received by authors (Article 16). Chapter 2 (Article 17) contains a complex set of provisions regulating the use of protected content by ‘online content-sharing service providers’. Chapter 3 contains a series of provisions intended to ensure that authors and performers receive fair remuneration from contracts for the exploitation of their works and performances: a requirement that authors and performers receive appropriate and proportionate remuneration (Article 18); an obligation for licencees and transferees to provide authors and performers with information concerning the exploitation of their works and performances (Article 19); a requirement that authors and performers be able to claim additional remuneration where the remuneration originally agreed turns out to be too low (Article 20); a requirement for ADR to be made available (Article 21): and a requirement that authors and performers be able to revoke licences and transfers where there is a lack of exploitation (Article 22). Title V, ‘Final Provisions’, amends some of the earlier Directives and contains some technical provisions dealing with things like application in time and transposition (Articles 24–32).

O‘ZBEKISTONDA MUALLIFLIK HUQUQI BO‘YICHA MULKIY HUQUQLARNI JAMOAVIY BOSHQARUV TASHKILOTLARININNG VUJUDGA KELISHI VA RIVOJLANISHI

The issues related to the history of the establishment of the institution of copyright protection, with the division of powers of collective management organizations, with the functions of organizations and their types, with the difference between collective management of copyright and such a concept as representation are touched upon. In addition, the essence of collective management is that participating organizations enter into agreements with authors and other rightholders and take responsibility for the management of these rights; conclude contracts with copyright holders, persons using works (objects of copyright and related rights) on their own behalf on the basis of the powers granted by collective management organizations; collect, distribute and pay royalties to copyright holders; The article discusses the role of copyright holders and other copyright holders in court, as well as the role of some organizations in providing social support to their members. Attention is paid to some urgent problems related to the improvement of this institution, international standards for copyright protection and comparative legal analysis of national legislation, as well as the opinions of scientists from Uzbekistan and other different countries. Suggestions and recommendations were put forward of scientific and practical importance for national copyright law.

Lump-Sum Compensation Claimed by a Collective Management Organization

Lump-Sum Compensation

Standing of Collective Management Organisations before the European Court of Human Rights

AsDAC v Republic of Moldova; with case note by Oleksandr Bulayenko and Stanislava Ilchenko

The Pathway Towards Digital Superpower: Copyright Reform in China

Abstract After going through four drafts and several consultations in the past decade, the Third Amendment of Copyright Law was finally adopted in China on 11 November 2020. The new Copyright Law came into effect on 1 June 2021. This report presents a comprehensive analysis of the major changes in the Third Amendment, including originality, copyright subject matter, scope of exclusive rights, copyright collective management organisations, digital rights management, and remedies. In addition, this report discusses unsolved issues in the Third Amendment ‒ namely orphan works and those associated with artificial intelligence technologies ‒ for future copyright reform. By examining the amended provisions in the Third Amendment, this report illustrates the multiple purposes underlying China’s recent copyright reform.

Distribution of Royalties by Collective Management Organizations

Green Light v Copyright Society

Problems Of Copyright Protection: Plagiary And Piracy On The Internet

The main purpose of this article is to study the institution of copyright protection, with the division of powers of collective management organizations, with the functions of organizations and their types, with the difference between collective management of copyright and such a concept as representation are touched upon. The main focus is on the main goals of improving the judicial system in accordance with the Uzbekistan’s Five-Area Development Strategy for 2017-2021 in general and proposals for further improvement of the legislation were formed on the basis of the approach, proposed by the author. Also, attention is paid to some urgent problems related to the improvement of this institution, international standards for copyright protection and comparative legal analysis of national legislation, as well as the opinions of scientists from Uzbekistan and other different countries. Suggestions and recommendations were put forward of scientific and practical importance for national copyright law

Legal relations between collective management organizations and copyrighters

Legal relations between collective management organizations and copyrighters

Peculiarities of voluntary collective management of property copyrights and (or) related rights: normative legal regulation and practice of its implementation

The article is devoted to the research of the peculiarities of voluntary collective management of property copyrights and (or) related rights, normative legal regulation of the specified sphere of relations and practice of its implementation. The requirements to the organizations which can carry out voluntary management, and also the legal bases of acquisition by them of the rights to implementation of such management are analyzed. The differences between voluntary and extended and compulsory collective management are established. During the research, the following conclusions are made: After the adoption of the special Law of Ukraine “On effective management of property rights of copyright holders in the field of copyright and (or) related rights” voluntary management has become one of the three types of collective management; Its implementation takes place on a contractual basis exclusively in respect of property rights, which are transferred by the right holders to the management and included in the relevant catalogs of organizations; Voluntary management is carried out by a public association with the status of a legal entity, registered in a non-profit institution, founded exclusively by right holders, whose activities are aimed at collective management of property rights to copyright and (or) related rights; Areas covered by voluntary management include all areas except those designated for compulsory and extended management. Moreover, the spheres of voluntary and extended management may overlap; An important guarantee for the right holder is the introduction by the legislator of the right to revoke property rights from management in whole or in part. Thus, a competitive market between organizations is formed. This will increase their efficiency; To restore the definition of a collective management agreement, which was removed from the law on copyright but not included in the law on effective management, we propose to supplement Art. 1 by the specified definition. Accordingly, the collective management agreement is proposed to be understood as an agreement that regulates the relationship between right holders and relevant collective management organizations, which authorize managers to act on their behalf in relations with users of the objects of intellectual activity on: approval of the amount of remuneration, conclusion of agreements with users on the use of rights transferred to management; collection, distribution and payment of the collected remuneration for the use of such objects to the right holders whose rights they manage; taking actions necessary to protect the rights managed by the organization of collective management, including going to court to protect the rights of right holders in accordance with the statutory powers and instructions. Further development of research in the field of voluntary governance may involve a clearer definition of the legal and procedural status of organizations that manage rights.

AG Szpunar advises CJEU to rule that car leasing companies making available vehicles with built-in radio systems are not ‘users’ that perform a communication to the public

Opinion of Advocate General Szpunar in C-753/18 STIM and SAMI v Fleetmanager Sweden AB and Nordisk Biluthyrning AB, EU:C:2020:4, 15 January 2020 In his Opinion in STIM and SAMI, Advocate General (AG) Szpunar considered that car leasing companies are not ‘users’ that communicate works to the public within the meaning of Article 3(1) of Directive 2001/29/E (InfoSoc Directive) and Article 8(2) of Directive 2006/115/EC (Rental Rights Directive). The role of car rental companies merely consists of providing cars equipped with radio receivers that have been pre-installed by the respective car manufacturers. In 2018, the Swedish collective management organization STIM and the Swedish Artists and Musicians’ Interest Organization, SAMI, brought separate proceedings against two companies that operate in the automobile leasing/renting industry. Both cases ensued from missed payment (since 2014) of yearly licensing fees to STIM and SAMI. Following an appeal to the Swedish Supreme Court, this stated that, according to the case law of the Court of Justice of the European Union (CJEU), it is apparent that a communication to the public may take place—in the manner envisaged by Article 3(1) of the InfoSoc Directive—when transmissions are made by means of technical equipment to a nearby public (e.g. in a hotel, café, rehabilitation centre or a spa). Furthermore, the CJEU has held that hotel operators carry out a communication to the public under Article 8(2) of the Rental Rights Directive when hotel rooms are equipped with phonograms available in digital or physical form and which can be played or intercepted (Case C-162/10 Phonographic Performance Ireland, EU:C:2012:141). Nonetheless, the CJEU has also come to the opposite conclusion regarding transmission of phonograms in a dentist’s waiting room (C-135/10 Società Consortile Fonografici, EU:C:2012:140). The Supreme Court was unsure of how to treat the providers of rental cars. It, therefore, decided to stay the proceedings and ask the CJEU to clarify the scope of communication to the public. In particular, the Swedish Supreme Court asked the Court of Justice to answer the following questions:

Economic Functions of Collecting Societies - Collective Rights Management in the Light of Transaction Cost - and Information Economics

Together with cultural and social tasks collective management organizations (CMOs) fulfil important economic functions: They ensure the economic participation resulting from the use of works for the sake of authors and right holders when the latter cannot individually manage their rights for practical reasons or because of prohibitively high transaction costs. Thus, CMOs aim at facilitating legal access to the use of copyrighted works (ideally by setting up one stop shops) by reducing users' search and information costs. This basic economic rationale for the existence of CMOs is increasingly put into question. Not only members of the exploiting industry doubt whether transaction costs are in fact reduced by a legally defined system of collective rights management. In the face of inspiring new technological means, many see the future in a possibly more efficient rights coordination: individual rights management by means of digital rights management (DRM). The pertinent issue is whether enhanced possibilities of reducing transaction costs by means of DRM will eventually redundantise CMOs from an economic point of view. What economic functions of CMOs will persist in the digital era? What challenges do they have to meet in order to survive? Methodologically, these questions are treated by dint of transaction cost and information economics. The scientific interest of the paper regards the general question of what economic functions CMOs fulfil. On the basis of different categories of transaction costs which arise, the reduction of transaction costs by CMOs, i.e. the main argument in favour of collective rights management, shall be analysed in detail and also in comparison to individual rights management by DRM. Whereas many academic works on CMOs are prone to emphasize the rationale of collective rights management from the licensors' perspective (authors and rights holders) the paper rather focuses on the licensees' search and information costs. This approach seems promising insofar as these specific transaction costs will most probably gain in importance in the digital environment. With regard to the second methodological approach, an additional economic function of CMOs can be qualitatively explained by information economics. Cross-subsidizing of economically less successful right holders may lead to the notion of CMOs as insurance entities. Since they do not know whether their repertoire will be accepted on the market, risk-averse right holders join CMOs in order to reduce their individual risk of economic failure. In this sense, CMOs can be seen as organizations which provide uninformed authors and/ or right holders with protection vis-a-vis the powerful content industry.

Collective Management of Copyright in Greece After the Implementation of Directive 2014/26/EU

Abstract The Collective Management Law (L. 4481/17) transposed Directive 2014/26/EU into national law, and also set a voluminous legal framework on collective management with intensive state intervention. This placed Greece’s collective management organisations (CMOs) in a less favourable operating condition compared with those in other Member States. The implementation procedure in Greece plunged the music market into crisis, and showed that many national CMOs were unprepared to adapt to the new burdensome administrative measures and overloaded the existing competent authority with a variety of monitoring and supervisory tasks. The challenge for legislative initiatives and supervisory mechanisms remains to strike a balance between the quest for transparency and accountability and the viability of smaller and weaker CMOs. This article aims to give a short survey of the new legal framework on collective management in relation to the current day-to-day situation and the case law.

ПРАВОВЕ РЕГУЛЮВАННЯ АВТОРСЬКОЇ ВИНАГОРОДИ ЗА ЗАКОНОДАВСТВОМ УКРАЇНИ

The article is devoted to the analysis of normative-legal regulation of payment of royalties. The main types of royalties under current national legislation have been studied. It is established that the amount and procedure for payment of royalties for the creation of a work are established in the copyright agreement or in agreements concluded on behalf of the subjects of copyright by collective management organizations with persons who use the works. The most important property right of the inventors is the right to remuneration for intellectual activity, which contributes to the formation of promising areas of science and technology. Author's remuneration is a certain payment in favor of the author of the work, due to the use of this work by another person. The right to remuneration does not belong to the number of personal non-property or property copyrights. Legislative consolidation of royalties is a logical necessity for the development of inventive creative activity in Ukraine. The legislation of Ukraine may establish minimum rates of royalties and the procedure for their application and minimum rates of remuneration for the use of related rights and the procedure for their indexation. Despite the economic nature of the fee, its legal nature, in general, is an essential aspect of copyright and, in addition, allows you to assess the current copyright system, both at the level of individual organizations and nationwide. It is determined that the national legislation rather fragmentarily embodies the basic principles of payment of inventory fees, which certainly slows down the progressive processes of inventors and causes legal disputes between inventors, employers and other subjects of legal relations in the field of invention.

Legal Framework for the Protection of Copyright and Related Rights through Collective Management Organizations in Palestinian Law / Comparative Study

Legal Framework for the Protection of Copyright and Related Rights through Collective Management Organizations in Palestinian Law / Comparative Study

How to License Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms

How can the EU Member States license Article 17 of the new Directive on copyright and related rights in the Digital Single Market? This is the central question that this paper addresses. To answer it, we first analyse the nature of the right included in Article 17. We argue that the nature of the right has a number of serious consequences for its licensing. First, it determines whether the right is mandated by public international law, and hence what licensing modalities are allowed under the 1994 WTO TRIPS Agreement and 1996 WIPO treaties. Second, it clarifies what other conditions European Union law itself imposes on the newly established right and its implementation into national law. These restraints shape the margin of discretion of EU Member States. Third, it may imply changes to existing licensing practices, including the need for collective rights management organisations to obtain new mandates. Fourth, it influences how Member States can incorporate users’ rights into the legal framework. We argue that Article 17 is a special or sui generis right. We identify how this right fits the existing international and EU law, and explain why the Member States have a broad margin of discretion when implementing the corresponding licensing regimes. Perhaps most importantly, and counter-intuitively, we show that the legal arguments against Article 17 licensing via modalities of statutory licensing and mandatory collective management schemes are weaker than one might initially think.

How Can Blockchain Improve the Functioning of the Collective Management Organisations?

In the copyright domain, different elements may be represented on the blockchain: works, ownership metadata, licensing terms, remuneration and even transparency and reputation. With these characteristics, blockchains appear to help CMOs to provide their services. Relying on their databases implemented on a distributed ledger and with adequate, well-written and audited/verified smart contracts, CMOs will be enabled to better automate and standardize a multitude of their copyright-related transactions, from the autorisation of using works of their members to the quick payments of the related remuneration to the concerned members.

How the Nigerian Supreme Court finally resolved the copyright collective management organizations’ locus standi conundrum

... Seven months after its decision in Adeokin Records v Musical Copyright Society Nigeria (MCSN) (the Adeokin SC appeal)1 concerning the locus standi of collective management organizations (CMOs), the Nigerian Supreme Court (SC) ruled again on this very issue in MCSN v Compact Disc Technology Ltd & Ors (the Compact Disc SC appeal) on 14 December 2018.2 With the judgment in the Compact Disc SC appeal, the SC has ended an over 20-year-old legal tussle concerning the right of unapproved CMOs to initiate actions for infringement of copyright under the Copyright Act.3 The cases decided before the Compact Disc SC appeal and their implications on collective management of copyright in Nigeria have been extensively examined elsewhere.4 Nonetheless, for proper perspective, it should be noted that the preoccupation of the cases was how sections 16, 17 and 39 of the Copyright Act impact the right of action of CMOs not approved by the Nigerian Copyright Commission (NCC).

EFFECTIVENESS OF COLLECTIVE MANAGEMENT ORGANIZATION IN COLLECTIVE ROYALTIES OF MUSIC AND COPYRIGHT WORK ON KARAOKE BUSINESS ACHIEVEMENT BASED ON LAW NUMBER 28 YEAR 2014 ON COPYRIGHT

He effectiveness of Collective Management Organization (CMO) in charge royalties on business karaoke questionable, this relates to the birth of Act No. 28 year 2014 about copyright which regulate in particular the CMO. Because there are still many karaoke business which still has not fulfilled the obligation to pay royalties of works of copyright music and their songs (karaoke company) exploitation for commercial business interests. This research aims to: (1) know the role of business in addressing CMO karaoke that doesn't pay royalties, (2) know the effectiveness of CMO administering royalties on the karaoke business person under law No. 28 Year 2014, (3) knowing the efforts in improving polling CMO royalty on the karaoke business. This type of research is the Juridical Sociological (Empirical) approach to legislation as well as interviews. The results of this study showed that the effectiveness of the CMO administering royalties have not been effective because it is based on the theory of legal effectiveness Soerjono Soekanto. Efforts in improving the collection of royalties already attempted CMO. The conclusions of this research that is not yet effective because CMO factor law enforcement community and culture that Indonesia is still not law abiding. Her advice is a strict law enforcement and awareness of the law business karaoke should be improved so that effective in running in CMO.

The internet renaissance of collective management organisations: reflections on flat fee system and the role of collective management organisations

ABSTRACTWith the increasing influence of modern technologies, collective management stands in front of a significant challenge. An integral part of this process is the necessary change in our society’s psychology, as the disputed shifts in the possibilities of using copyrighted works on the Internet represent a whole new perspective on sharing creativity and collaboration between users and authors. Changes in possibilities of using copyrighted works and in the minds of stakeholders indicate that our current system is not sustainable in the long term. The original motivation to create organisations of collective management – the possibility of more economically advantageous and useful administration of legitimate claims of authors, still exists. Therefore, we must seek a solution that will create a compromise between the anarchist concept of the Internet generation and the rigid approach of copyright. A flat fee could be an easy solution (whether as a part of an Internet connection payment or a ‘copyright tax’). The article discusses positive and negative aspects and provides a critical assessment of feasible options for practical use in the European legal system with regard to the Directive on collective management of copyright (2014/26/EU). In conclusion, the article summarises how collective management organisations are supposed to effectively manage the use of copyrighted works on a flat-fee basis.

Auditing the Performing Rights Society - investigating a new European Union Collective Management Organization member audit method

The European Union Rights Management Directive 2014/26/EU, provides regulatory oversight of European Union (EU) Collective Management Organizations (CMOs). However, the Directive has no provision indicating how members of EU CMOs may conduct non-financial audits of their CMO income and reporting. This paper addresses the problem of a lack of an audit method through a case study of the five writer members of the music group Duran Duran, who have been members of the UK's CMO for performing rights - the Performing Rights Society (PRS) for over 35 years. The paper argues a new audit CMO member method that can address the lacunae regarding the absence of CMO member right to audit a CMO and an applicable CMO audit method.