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Collective management of copyright and related rights in the EU

Updated on 27 November 2013

As the owner of copyright or related rights, the creator of a work can exercise his right in person. However, nowadays, individual management of rights is not only impractical, but also almost impossible.

Collective rights management

© AKS / Fotolia

This impracticability can be surmounted by using collective management organisations. These organisations negotiate with users or groups of users on behalf and for the benefit of creators.  Despite enormous efforts towards harmonisation, Member States keep applying their national laws on copyright and related rights and these national regulations vary considerably.

Collective rights management in the EU is also built on the basis of territoriality as laid down in the Berne Convention. However, does the territoriality principle still remain valid in the digital world or should it be reinterpreted? It seems essential to moderate the negative effects of the territoriality principle by new licensing models.

The Commission published its proposal on 11 July 2012. In its Reasoned opinion of 7 November 2012 the Luxembourg Chamber of Deputies concluded that the “proposed arrangement does not comply with the principle of subsidiarity”.

On 26 Novembe the Legal Affairs Committee endorsed the EP deal with the Council; the text has now to be adopted by the plenary (probably in February 2014).

This Keysource has been created in July 2012 and updated with a series of new documents in 2013.

Overviews

Collective rights management of online music / Franziska Zibold, 18 January 2013, 6 p.
This Library Briefing gives a good overview of the situation beginning 2013.  You will find there some background information, a short analysis of the Commission’s proposal as well as stakeholder views.

Copyright : territoriality, collective management and remuneration / European Parliament. Working Group on Copyright, 2010, 19 p.
This document by the Working Group on Copyright has been presented to the Committee on Legal Affairs. It summarises the situation in the EU on the 3 subjects of territoriality, collective rights management and remuneration and it also raises some questions which should be the basis for further work in this area.
See especially Part two: collective management of copyright and related rights, p. 9-14

Collective management of copyright and related rights / Gervais, Daniel J., Alphen aan den Rijn: Kluwer Law International, 2010, 495 p. – EP Library – Brussels, S 32.12 COL 10
In the first part of this book, different collective management models are described and the historical role of CMOs is examined. The second part is “divided on a geographical basis”: collective management in the European Union, in France, in the UK, in the Nordic Countries, in commonwealth Jurisdictions, in Asia, in Latin America and in the US is analysed. The first chapter of the second part is dedicated to the collective management in the European Union and gives place to the “key decisions by the European Court of Justice and the European Commission which dealt with the relationship among CMOs, between CMOs and users, also between CMOs and their members”.

Analysis

Copyright in the EU Digital Single Market / Giuseppe Mazziotti ; The Centre for European Policy Studies (CEPS),Regulatory Policy, CEPS Task Force Reports 2013, 199p
The report summarises the work of the CEPS Task Force composed by different stakeholders, including EU institutions, consumer advocates, civic society organisations and academics. The group had a closer look at three specific areas: 1) Licensing rules and practices in the online music and film sectors, where it comes to the conclusion that simplification of licensing in the film sector is possible and welcomes the Proposal on Collective Rights Management; 2) The definition and implementation of copyright exceptions in the digital environment, the most controversial subject and 3) The present and future of online copyright enforcement in the EU, for which the Task Force widely agreed on the suitability of uniform enforcement standards.

Initial appraisal of a European Commission Impact Assessment – European Commission proposal for a Directive on collective rights management / Ballon, Elke; Werner, Helmut ; European Parliament. Impact Assessment Unit, November 2012, 6 p.
“This note, prepared by the Impact Assessment Unit for the Committee on Legal Affairs, analyses whether the principal criteria laid down in the Commission’s own Impact Assessment Guidelines, as well as additional factors identified by the Parliament in its Impact Assessment Handbook, appear to be met by the IA. It does not attempt to deal with the substance of the proposal.”

Collecting societies and cultural diversity in the music sector study / European Parliament Policy Department B , Ελληνικό Ίδρυμα ευρωπαϊκής και εξωτερικήs πολιτικής , PE 419.110 , Brussels: European Parliament, 2009, 167 p.
“This study investigates how EU policy on music rights licensing, particularly for online services, is affecting cultural diversity. For that purpose, it analyses information on the popularity of different repertoires (Anglo-American, EU and domestic) in recent years in a sample of EU Member States. It finds that current policies are likely to weaken the position of authors and composers, therefore posing a challenge for cultural diversity.”

Die Zeitschrift für Urheber- und Medienrecht widmet dem Thema kollektive Wahrnehmung von Urheberrechten in ihrem Heft 3, 2013 eine Reihe von Artikeln – die Artikel sind zugänglich über unsere Latest Analysis dazu.

Comments of the Max Planck Institute for Intellectual Property and Competition Law on the Proposal for a Directive of the European parliament and of the Council on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market COM(2012)372, 2013, 35 p.
While the Max Planck Institute welcomes the initiative to adopt a binding legal instrument in this area it also thinks that “the Commission seems to fail to take account of the full legal framework and factual circumstances that have structured the current system of collective rights management“.  For the Institute “the Proposal endangers the balance both between different categories of rightholders and between rightholders and users“.

Proposal for a Directive on collective rights management and (some) multi-territorial licensing / Joao Pedro Quintais, European Intellectual Property Review 2013, vol.35, Nr.2, p. 65-73
After a general introduction to the subject, the author analyses the proposal, especially in view the relationships between collective management organisations and their members, other CMOs and users.  He then concentrates on multi-territorial licensing where he finds more points for criticism.

Economics of copyright collecting societies and digital rights: is there a case for a centralised digital copyright exchange? / Ruth Towse, Review of Economic Research on Copyright Issues, 2012, Vol. 9, Nr. 2, p. 3-30. Published on the Social Science Research Network, December 12, 2012. You need to login – for free – to read the full text.
Since 2010 a discussion is taking place in the UK around the creation of the Digital Copyright Exchange (DCE), a centralised clearing house for digital management of rights. The author uses the DCE proposal as the backdrop for discussing three basic questions: “Has digitization fundamentally altered the economic case for collective rights management? Second, would a new system of licensing alter the accepted view of collecting societies as natural monopolies? Third, can effective competition or contestability be introduced by a centralised copyright exchange into the world of collecting societies so as to reduce transaction costs, as envisaged in the UK reports?”

Cautionary Tales About Collective Rights Organizations / Jonathan Band, Social Science Research Network, September 19, 2012, 38 p. (You need to register – for free – to read the full text).
This is a collection of 19 cases from around the world in which Collective Rights Organisations deprived artists of their revenues.  For each case you will find references for further reading – where possible with link to the full text of the articles.

Proposal for a Directive on Collective Rights Management and (some) Multi-territorial licensing, by Joao Pedro Quintais, Kluwer Copyright Blog, 19 + 24 July 2012
The author from the Institute for Information Law (IViR) gives in Part I background information and a general overview of the proposal and looks at its general rules on subject matter, scope and Collective Management Organizations (“CMOs”).  Part II discusses multi-territorial licensing (“MTL”) and enforcement measures.

Stakeholder views

Management of Copyright and Related Rights / European Commission
On this website from DG Internal Market you find a lot of background information, including the proposal (+ Impact assessment and FAQ),  the outcome of the Public hearing from spring 2010, a report on the “monitoring of the 2005 music online recommendation” from 2008, a “Study on a community initiative on the cross-border collective management of copyright” from 2004 and the consultation from 2004…

DIGITALEUROPE on the draft Collective Rights Management Directive / DIGITALEUROPE, 14.03.2013, 5 p.
DIGITALEUROPE represents more than 10,000 companies in the Information and Communications Technology and Consumer Electronics Industry sectors. It welcomes the proposal and especially the fact that it focuses on three areas to: “1) improve the efficiency and timeliness of the distribution, to rightsholders, 2) address the territorial management of copyright and 3) increase the transparency and governance of these intermediaries”.

EEA EFTA Comment on the Commission proposal for a Directive of the European Parliament and of the Council on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market, (COM (2012) 372), 21.02.2013
The EEA EFTA States support the goals put forward in the proposal, but they also think it is important that the provisions concerning collective management organisations are not too detailed, because this would create unnecessary administrative burdens and cost for right-holders and users.  They also encourage the Commission to include the possibility for Member States to continue with Extended Collective Agreement Licenses.

COMMUNIA policy paper on the Directive proposal on Collective Management of Copyright, 07.01.2013
COMMUNIA International Association on the Public Domain – a network of researchers and practitioners from 10 Member States – believes that the proposal should be improved in the area of transparency of repertoire information and the relation between collective management and open content licenses.

Under the title The EU Collective Rights Management Directive Gesac – which groups 32 authors’ societies in the EU, Norway and Switzerland – links to its own position papers, but also to some press articles

EDRi comments on the collective rights management draft directive, 21 November, 2012
European Digital Right, representing 35 privacy and civil rights organisations in 21 countries, thinks that there is significant room for improvement to allow better harmonisation and greater enforcement.  Following EDRI the proposal doesn’t solve the lack of freedom of choice for artists.  Also, some terms should be clearly defined, such as transparency, diligence and efficiency of governance. And concerning collecting societies themselves, EDRi foresees a significant loophole concerning liability and sanctions. In their previous commentary EC suggests changes of the music rights management system of 18 July, 2012 you will also find links to some press articles and further comments.

Case law

Commission Decision COMP/C2/38.698 – CISAC, 16 July 2008
The European Commission has adopted an antitrust decision prohibiting 24 European collecting societies from restricting competition by limiting their ability to offer their services to authors and commercial users outside their domestic territory.
The removal of these restrictions will allow authors to choose which collecting society manages their copyright (e.g. on the basis of quality of service, efficiency of collection and level of management fees deducted).

In the Westlaw database you find an interesting Case analysis; if you scroll down to the end of the document you will find also some links to recent journal articles on the case.

In its judgement of 12 April 2013 “the General Court partially annuls the Commission decision finding anti-competitive conduct on the part of copyright collecting societies” – see press release Nr. 43/13.

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