Collective Management of Copyright and Related Rights

Name: Collective Management of Copyright and Related Rights
Brand: Kluwer Law International
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Daniel Gervais(Herausgeber*in)

Kluwer Law International (Verlag)

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Erschienen am 19. November 2015

538 Seiten

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Beschreibung

In the course of the last two decades, collective management organizations (CMOs) have become the nerve centres of copyright licensing in virtually every country. Their expertise and knowledge of copyright law and management have proven essential to make copyright work in the digital age. However, they have also been at the centre of debates about their efficiency, their transparency and their governance. This book, an extensively revised and updated edition of the major work on the legal status of CMOs, offers an in-depth analysis of the various operating CMO models, their rights and obligations vis-à-vis both users and members, acquisition of legal authority to license, and (most important) the rights to license digital uses of protected material and build (or improve current) information systems to deal with ever more complex rights management and licensing tasks. All the chapters have been updated since the 2010 edition. New chapters on Africa, China, Central Europe and New Zealand (together with Australia, which is no longer discussed in the separate chapter on Canada) have been added.

Factors considered include the following:

- role of 'families' such as the International Confederation of Societies of Authors and Composers (CISAC) and the International Federation of Reproduction Rights Organizations (IFRRO);

- cases where the unavailability of adequating options makes authorized use difficult or impossible taking transaction costs into account;

- growing importance of extended repertoire systems (also known as extended collective licensing);

- relationship among collective management, rights to remuneration, and the ways in which CMOs acquire authority to license;

- transnational licensing and the possible role of multi-territorial licensing; and

- threat of monopolies or regional oligopolies for the management of online music rights.

Legal underpinnings covered in the course of the analysis include the 1996 WIPO Copyright Treaties, the US Digital Millennium Copyright Act, the Napster case, the Santiago Agreement, relevant EU Papers and the 2014 Copyright Directive, and work done by the UN Committee on Economic, Social and Cultural Rights. Part I presents a number of horizontal issues that affect collective management in almost every country. Part II is divided on a geographical basis, focusing on systems representative of the principal models applied in various countries and regions. Each country specific or region-specific chapter provides a historical overview and a presentation of existing CMOs and their activities, gives financial information where available, describes how CMOs are supervised or controlled by legislation, and offers thoughts about the challenges facing CMOs in the country or region concerned. Many of these national and regional commentaries are the only such information sources available in English.

Whatever the future of copyright holds, it is clear that users will continue to want access and the ability to reuse material lawfully, and authors and other rights holders will want to ensure that they can put some reasonable limits on those uses, including an ability to monetize commercially relevant uses. CMOs are sure to be critical intermediaries in this process. The second edition of this important resource, with its key insights into the changing nature of collective management, will be of immeasurable value to all concerned with shaping policy towards collective management or working with the ever more complex legal issues arising in digital age copyright matters.

Weitere Details

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Inhalt

Intro
Halftitle Page
Title Page
Copyright Page
Editor and Contributors
Summary of Contents
Table of Contents
Preface
PART I Transnational Issues
CHAPTER 1 Collective Management of Copyright: Theory and Practice in the Digital Age-Daniel Gervais
1 Introduction
2 Collective Management in Historical Perspective
3 How Collective Management Operates
3.1 Obtaining the Authority to License
3.2 Setting Licensing Terms and Tariffs
3.3 Usage Data Collection and Distribution
3.4 Transparency Issues
4 Theoretical Approaches
4.1 Fragmentation
4.2 The Copyright Paradox
4.3 CMOs and the Two Worldviews of Copyright
4.4 CMOs as Cultural Agents
5 CMOs and the Internet
5.1 The Challenges
5.2 The Extended Repertoire System and Internet Uses
6 Conclusion
CHAPTER 2 Collective Rights Management from the Viewpoint of International Treaties, with Special Attention to the EU 'Acquis'-Mihály Ficsor
1 Introduction
2 WIPO's Activities in Recognition of the Importance of Collective Management in the Applicability of Rights
2.1 Consideration of Issues Raised by New Technologies in the 1970s and 1980s
2.2 Complex Analysis of Legal Issues concerning Collective Management
2.3 Issues of Collective Management in the Preparatory Documents of the WIPO 'Internet Treaties'
2.4 Review of Exercise of Rights in the Digital Online Environment
3 Collective Management and the Basic Treaty Obligations
3.1 Raison d'être and Concept of Collective Management
3.2 Collective Management and General Treaty Obligations to Guarantee Due Applicability of Rights
4 Mandatory Collective Management
4.1 Mandatory Collective Management from the Viewpoint of International Norms
4.1.1 Limited Scope of Exclusive Rights for the Exercise of Which Mandatory Collective Management May Be Imposed
4.1.2 Mandatory Collective Management of Rights to Remuneration
4.2 Mandatory Collective Management under EU Directives
4.2.1 Rental Directive
4.2.2 Satellite and Cable Directive
4.2.3 Resale Right Directive
4.2.4 Collective Management Directive
4.3 Theories on General Applicability of Mandatory Collective Management
5 Extended (and Presumption-Based) Collective Management
5.1 Extended Collective Management from the Viewpoint of International Norms
5.2 Extended Collective Management under EU Directives
5.2.1 Satellite and Cable Directive
5.2.2 Information Society (Copyright) Directive
5.2.3 Orphan Works Directive
5.2.4 Collective Management Directive
5.3 Why Extended Collective Management Does Not Result in an Exception or Limitation
5.4 Why Extended Collective Management Does Not Involve Any Formality
5.5 Collective Management and National Treatment
CHAPTER 3 Collective Management of Copyrights and Human Rights: An Uneasy Alliance Revisited-Laurence R. Helfer
1 Introduction
2 Introducing a Human Rights Framework for Intellectual Property
2.1 The ICESCR Committee's General Comment No. 17
2.2 Developing a Distinctive Human Rights Framework for Creators' Rights
3 Human Rights and the Collective Administration of Copyright: A Preliminary Assessment
3.1 CMO Activities That Enhance the Human Rights of Creators and Users
3.2 CMO Activities That Detract from the Human Rights of Creators and Users
4 Two Human Rights Concerns of Collective Administration: Mandatory Membership and Promoting National Culture
4.1 Should Membership in CMOs Be Mandatory or Voluntary?
4.2 Should CROs Promote National Culture?
5 Conclusion: The Practical Consequences of a Human Rights Framework for the Collective Administration of Copyright
PART II Europe
CHAPTER 4 Collective Management in Central and Eastern Europe-Mihály Ficsor & Mitko Chatalbashev
1 Introduction
2 Common and Different Features
3 General Characterization of the Copyright Laws of the CEE Countries
4 Governmental, Semi-governmental and Private Organizations
5 Transformation of the Organizational Structure in the 'Transition' Period
6 De Jure or De Facto Monopoly Position and Competition Considerations
7 Voluntary, Mandatory and 'Extended' Collective Management
8 Existing and Missing CMOs
'Sleeping' and Neglected Rights
9 Some Current Challenges Faced by the CMOs in CEE
CHAPTER 5 Collective Management in the European Union-Lucie Guibault & Stef van Gompel
1 Introduction
2 Legal Framework
2.1 Collective Rights Management Directive
2.1.1 Legislative History
2.1.2 Scope of Application of the CRMD
2.2 Services Directive
2.3 Competition Law
3 Rules on Good Governance
3.1 Relationship with Members
3.2 Relationship with Users
3.3 Supervision
4 Cross-Border Licensing of Repertoire
4.1 Reciprocal Agreements between CMOs
4.1.1 IFPI Simulcasting Decision
4.1.2 CISAC Case
4.2 Multi-territorial Licensing of Online Rights in Musical Works
4.2.1 Online Music Recommendation
4.2.2 The Harmonized Legal Framework
4.2.2.1 Requirements for CMOs Offering Multi-territorial Licenses
4.2.2.2 The Passport Construction
4.2.2.3 Derogation from the Passport Construction
5 Conclusion
CHAPTER 6 Collective Management of Copyright in France-Sylvie Nérisson
1 Introduction
2 A Short History of French Collective Management
3 The Current Situation
3.1 French Law Applicable to CMOs
3.1.1 Sector-Specific Regulations
3.1.1.1 Terminology and Non-commercial Character of Collective Management
3.1.1.2 Provisions regarding the Membership in CMOs
3.1.1.3 Legal Standing
3.1.1.4 Provisions regarding Contracts Concluded by CMOs
3.1.1.5 Discounts for Specific Group of Users
3.1.1.6 Statutory Allocation of a Share of the Revenues to the Support of Creation, Performing Arts and Performers Training
3.1.1.7 Transparency and Supervision of CMOs
3.1.2 Cases of Statutory Collective Management in France
3.1.2.1 The Rights Concerned
3.1.2.1.1 Private Copy
3.1.2.1.2 Reprography
3.1.2.1.3 Cable
3.1.2.1.4 Lending Right
3.1.2.1.5 The Specific Scheme for Out of Print Books of the Twentieth Century
3.1.2.2 Statutory Criterion for the Ministerial Authorization
3.2 CMOs Currently Active in France
3.2.1 French CMOs in the Music Sector
3.2.1.1 SACEM
3.2.1.2 SACD
3.2.1.3 SDRM
3.2.1.4 SEAM
3.2.1.5 CMOs for Performers (ADAMI and SPEDIDAM)
3.2.1.6 The Sound Recording Producers' CMOs (SCPP and SPPF)
3.2.1.7 SORECOP: Copie France
3.2.1.8 SPRE
3.2.2 French CMOs in the Graphic Sector
3.2.2.1 ADAGP
3.2.2.2 SAIF
3.2.2.3 SAJE
3.2.3 French CMOs in the Written Sector
3.2.3.1 SOFIA
3.2.3.2 SCELF
3.2.3.3 CFC
3.2.4 The French CMO for the Multimedia Sector: SCAM
3.2.5 French CMOs in the Audiovisual Sector
3.2.5.1 ARP
3.2.5.2 Audiovisual Producers' CMOs (ANGOA and PROCIREP)
4 Current Challenges of Collective Management in France
Bibliography
CHAPTER 7 Collective Rights Management in Germany J örg Reinbothe
1 Introduction
2 The History of Copyright Collecting Societies in Germany
2.1 The Origins
2.2 The Developments from 1903 to 1965
2.3 The Developments after 1965
2.3.1 Collective Rights Management in the German Copyright Reform of 1965
2.3.2 Existing Collecting Societies in Germany
3 Today's Regulatory Framework for Collecting Societies
3.1 The General Principles Enshrined in the German Law on Collective Rights Management (LACNR)
3.2 The Provisions of the LACNR
3.2.1 Chapter 1: The Authorization/Establishment of Collecting Societies (Articles 1-5 of the LACNR)
3.2.1.1 Article 1 of the LACNR (Requirement of Prior Authorization)
3.2.1.2 Article 2 of the LACNR (Application for Authorization)
3.2.1.3 Article 3 of the LACNR (Denial of Authorization)
3.2.1.4 Article 4 of the LACNR (Repeal of the Authorization)
3.2.1.5 Article 5 of the LACNR (Publication of the Authorization)
3.2.2 Chapter 2 (First Part): The Rights and Obligations of Collecting Societies (Articles 6-13e of the LACNR)
3.2.2.1 Article 6 of the LACNR (Rights Management Obligation toward Rightholders)
3.2.2.2 Article 7 of the LACNR (Distribution of Revenues)
3.2.2.3 Article 8 of the LACNR (Social Assistance and Funding)
3.2.2.4 Article 9 of the LACNR (Accounting Rules)
3.2.2.5 Article 10 of the LACNR (Right of Information)
3.2.2.6 Article 11 of the LACNR (Obligation to Grant Exploitation Rights)
3.2.2.7 Article 12 of the LACNR (Umbrella Agreements with Users)
3.2.2.8 Article 13 of the LACNR (Tariffs)
3.2.2.8.1 Rules on Tariff Transparency
3.2.2.8.2 Rules on the Fairness of Tariffs
3.2.2.9 Article 13a of the LACNR (Tariffs for Recording Equipment and Storage Devices)
3.2.2.10 Article 13b of the LACNR (Obligations of Users and Organizers)
3.2.2.11 Article 13c of the LACNR (Presumption of Legitimacy)
3.2.2.12 Article 13d of the LACNR (Works Out of Print)
3.2.2.13 Article 13e of the LACNR (Register of Works Out of Print)
3.2.3 Chapter 2 (Second Part): The Arbitration Board and Access to the Courts (Articles 14-17a of the LACNR)
3.2.3.1 Article 14 of the LACNR (Arbitration Board)
3.2.3.1.1 The Mandate of the Arbitration Board
3.2.3.1.2 The Composition of the Arbitration Board
3.2.3.1.3 Consideration of Economic Facts and Stakeholders' Views
3.2.3.2 Articles 14a, 14b, 14c, 14d and 14e of the LACNR (Proposal for Agreement)
3.2.3.2.1 Article 14a of the LACNR
3.2.3.2.2 Article 14b of the LACNR
3.2.3.2.3 Article 14c of the LACNR
3.2.3.2.4 Article 14d of the LACNR
3.2.3.2.5 Article 14e of the LACNR
3.2.3.3 Article 15 of the LACNR (Rules of Procedure of the Arbitration Board)
3.2.3.4 Article 16 of the LACNR (Access to the Courts)
3.2.3.5 Articles 16(4) and 17 of the LACNR (Competent Court)
3.2.3.6 Article 17a of the LACNR (Voluntary Arbitration)
3.2.4 Chapter 3: The Control over Collecting Societies (Articles 18-20 of the LACNR)
3.2.4.1 Article 18 of the LACNR (Supervising Authority)
3.2.4.2 Article 19 of the LACNR (Supervision)
3.2.4.3 Article 20 of the LACNR (Procedural Obligations of Collecting Societies)
3.2.5 Chapter 4: The Transitional and Final Provisions (Articles 21-28 of the LACNR)
3.3 Conclusions 4
4 Future Perspectives for Collective Rights Management in Germany
CHAPTER 8 Collective Management in the Nordic Countries-Tarja Koskinen-Olsson & Vigdís Sigurdardóttir
1 Introduction
2 Overview of Collective Management in the Nordic Countries
2.1 Performing and Mechanical Rights of Musical Works
2.2 Related Rights in the Field of Music
2.3 Visual Arts and Photography
2.4 Rights in Literary Works
2.5 Reprography and Certain Digital Uses
2.6 Secondary Use of Radio and Television Programmes
2.7 Remuneration for Private Copying
2.8 Summary of Main Nordic Collective Management Organizations
3 Main Elements of an Extended Collective License
3.1 History of the System
3.2 Rationale and Basic Elements
3.3 Benefits
3.4 Applicability of an ECL in the Digital Environment
3.5 Alternatives to an Extended Collective License
4 Extended Collective Licenses and Government Oversight
4.1 Representativeness Criterion
4.2 Guarantees for Non-represented Right Holders
4.3 Measures to Ensure That Collective Agreements Are Concluded
4.4 Approval by Public Authorities
5 Practical Examples from Nordic Countries
5.1 Broadcasting in Finland
5.2 Reprography and Certain Digital Uses
5.2.1 Reproduction in Educational Activities in Denmark and Norway
5.2.2 Reproduction in Enterprises and Organizations in Sweden
5.3 Digitization of Library Collections in Norway
5.4 Secondary Use of Radio and Television Programmes
5.4.1 Retransmission of Broadcasts and New Services in Sweden
5.4.2 Radio and Television Programmes Enhance Education in Norway
5.5 Works of Visual Art go Online in Finland
5.6 General Extended Collective License in Denmark
6 Concluding Remarks
PART III The Americas
CHAPTER 9 Collective Management in Canada-Mario Bouchard
1 Introduction
2 A Brief History of Collective Management in Canada
3 Canadian CMOs: Markets, Structures, Practices
3.1 Spheres of Activity
3.1.1 Music
3.1.2 Reprography
3.1.3 Retransmission of Distant Radio and Television Signals
3.1.4 Private Copying
3.1.5 Audio-Visual and Multimedia
3.1.6 Off-Air Programme Taping
3.1.7 Collective Management in Other Areas
3.2 Characteristics and Practices of Canadian CMOs
3.2.1 Corporate Structure and Business Practices
3.2.2 Nature and Extent of the Repertoire
3.2.3 Pricing Practices, Administrative Expenses and Royalty Distributions
3.2.4 Interaction between CMOs
4 Government Oversight of Canadian CMOs
4.1 The Structure of the Copyright Board
4.2 Regulatory Regimes Administered by the Board
4.3 Procedures before the Copyright Board
4.4 The Powers of the Board
5 Conclusion
CHAPTER 10 Collective Management of Copyright in Latin America-Karina Correa Pereira
1 Introduction
2 CMOs throughout Latin America
2.1 Brazil
2.1.1 Effective Associations
2.1.2 Administered Associations
2.1.3 Other Associations
2.2 Argentina
2.3 Mexico
2.4 Peru
2.5 Venezuela
2.6 Uruguay
2.7 Chile
2.8 Costa Rica
3 Legal Framework and Its Application
3.1 Brazil
3.2 Argentina
3.2.1 The National Intellectual Property Register
3.3 Mexico
3.3.1 The National Intellectual Property Register
3.4 Peru and Venezuela
3.4.1 Peru
3.4.1.1 The National Intellectual Property Register
3.4.2 Venezuela
3.4.2.1 The National Intellectual Property Register
3.5 Uruguay
3.6 Chile
3.7 Costa Rica
4 Challenges Faced by CMOs in Latin America
4.1 Piracy
4.2 Lack of Awareness
4.3 Organizational Problems
4.4 New Technologies
5 Conclusion
CHAPTER 11 Copyright Collectives and Collecting Societies: The United States Experience-Glynn Lunney
1 Introduction
2 The Copyright Collectives: ASCAP, BMI and SESAC
2.1 A Brief Description of the Collectives
2.1.1 ASCAP
2.1.2 BMI
2.1.3 SESAC
2.2 The Legal Right at Issue: Public Performances under United States' Law
2.3 The Antitrust Challenges to the Collectives and the Resulting Consent Decrees
2.4 The New CMO on the Block: Sound Exchange
2.5 Conclusion: Trying to Cage the Beast
3 The Copyright Collecting Society: The CCC
3.1 A Brief Description of Copyright Collecting Societies
3.2 Of Chickens and Eggs, Markets and Rights
4 Recent Developments: SESAC Litigation, Mass Digitization, and Digital Music Licensing
4.1 Antitrust Challenges to SESAC
4.2 Mass Digitization: Fair Use or CMO?
4.3 Digital Music Licensing: Pandora and Related Issues
5 Conclusion: Some Normative Thoughts on Collective Rights Management
PART IV Other Regions
CHAPTER 12 Collective Management in Africa-J. Joel Baloyi & Tana Pistorius
1 Introduction
2 History of Collective Management
3 Collective Management in Anglophone Africa
3.1 Collective Management in South Africa
3.1.1 Introduction
3.1.2 The Regulatory Environment
3.1.3 The Collective Management of Copyright in Musical Works
3.1.3.1 The Collective Management of Performing Rights
3.1.3.2 The Collective Management of Mechanical Rights
3.1.3.3 The Collective Management of Reprographic Rights
3.1.3.4 The Collective Management of Needle-Time Rights
3.2 Collective Management in Kenya
3.2.1 Introduction
3.2.2 The Regulatory Environment
3.2.3 The Collective Management of Copyright in Musical Works
3.2.4 The Collective Management of Reprographic Rights
3.2.5 The Collective Management of Performers' Rights and Copyright in Sound Recordings
3.3 Collective Management in Nigeria
3.3.1 Introduction
3.3.2 Regulatory Environment
4 Collective Management in Francophone Africa
4.1 Collective Management in Ghana
4.1.1 Introduction
4.1.2 The Regulatory Environment
4.1.3 The Collective Management of Copyright in Musical Works, Performers' Rights and Copyright in Sound Recordings
4.1.4 The Collective Management of Reprographic Rights
4.1.5 Blank Media Levy
4.2 Collective Management in Mauritius
4.2.1 Introduction
4.2.2 The Regulatory Environment
4.2.3 The Collective Management of Copyright
4.2.4 Conclusion
4.3 Collective Management in Senegal
4.3.1 Introduction
4.3.2 The Regulatory Environment
4.3.3 The Collective Management of Copyright in Audiovisual Works
5 General and Conclusion
5.1 North Africa
5.2 West Africa
5.3 Central Africa
5.4 East Africa
5.5 Southern Africa
CHAPTER 13 Collective Management in China-Fuxiao Jiang & Daniel Gervais
1 Introduction
2 The Development of CMOs in China
2.1 The Relevant Regulations
2.2 The Current Situation of CMOs in China
2.3 The Operation of CMOs in China
2.3.1 The Authority to License
2.3.2 License Terms and Tariffs
2.3.3 Usage Data Collection and Distribution
3 Oversight of CMOs
3.1 Two Different Regulation Models
3.2 A Regulation for China
4 Challenge and Issues for Collective Management in China
4.1 Problem One: Standing to Sue
4.1.1 The Legal Nature of the Inner Relation between the CMO and Its Members
4.1.2 Resulting Problem
4.1.3 Possible Solutions
4.2 Problem Two: Litigation by Non-members
4.2.1 Litigation Explosion
4.2.2 Origin of the Litigation Explosion
4.2.3 Solutions
4.3 Problem Three: Monopoly of CMOs
4.3.1 The Abuse of Monopoly Position in China
4.3.2 Two Possible Solutions
5 ALook Ahead
5.1 The Ongoing Revision Process of Copyright Law
5.2 The Relevant Revisions about Collective Management
6 Conclusion
CHAPTER 14 Collective Management of Copyright and Neighbouring Rights in Japan-Koji Okumura
1 Introduction
2 History of Collective Management
2.1 Whirlwind of Plage
2.2 Enactment of the Act on Intermediary Business concerning Copyrights
2.3 Outline of the Intermediary Business Act
2.3.1 Regulated Business
2.3.2 License
2.3.3 Supervision, Etc.
2.3.4 Licensed Intermediaries
2.4 Review of the Intermediary Business Act
2.4.1 1967 Copyright Council Recommendation
2.4.2 Report by the Collective Right Management Subcommittee of the Copyright Council
3 Current Legal Framework for Collective Management
3.1 Outline of the Management Business Act
3.1.1 Regulated Business
3.1.2 Registration
3.1.3 Notification
3.1.4 Other Major Regulations
3.1.5 Supervision, Etc.
3.1.6 Current Operators of Management Businesses
3.2 Legal Frameworks Related to Collective Management
3.2.1 Collection of Secondary Use Fees
3.2.2 Collection of Remuneration for Rental
3.2.3 Designated Associations
3.2.4 Collection of Compensation for Private Digital Sound Recordings
3.2.5 Collection of Compensation for Private Digital Visual Recordings
4 Important Regulations on Collective Management Organizations
4.1 Regulations on Tariffs
4.2 System of Designated Operators of Management Businesses
4.2.1 Background to Introduction
4.2.2 Outline of System
4.2.3 Number of Designated Operators of Management Businesses
4.3 Rescission of Registration of Operators of Management Businesses
5 Major Operators of Management Businesses
5.1 Japanese Society for Rights of Authors, Composers and Publishers
5.2 Writers Guild of Japan
5.3 Japan Writers Guild
5.4 Japan Reprographic Rights Center
5.5 Recording Industry Association of Japan
5.6 Japan Council of Performers' Organizations
5.7 Rental Rights Administration Center for Publications
6 Issues Relating to Collective Management
6.1 Review of the Management Business Act
6.2 Issues about Competition
6.3 'One-Stop Shopping'
6.3.1 Portal Site for Right Holders' Databases
6.3.2 Copyright Data Clearinghouse
6.3.3 Secondary Use of Broadcast Programmes
6.4 Weaknesses of and a System Complementary to Collective Management
6.4.1 Merits of Collective Management
6.4.2 Weaknesses of Collective Management
6.4.3 Contract Approach
6.4.4 Copymart
6.4.5 Mutual Complementing
CHAPTER 15 Collective Management and the Copyright Tribunals of New Zealand and Australia-Susy Frankel
1 Collecting Societies
2 Australia's Statutory Compulsory Licencing Schemes
3 New Zealand's Voluntary Approach
4 Competition Law and Collective Management
5 Copyright Tribunals
6 The Role of Copyright Tribunals
7 Jurisdiction of the New Zealand and Australian Copyright Tribunals
8 The New Zealand Tribunal Does Not Order Compulsory Licences
9 Varying the Terms Rather than Adding Wholly New Subject Matter
10 Licensing Schemes and Licensing Bodies
11 Powers of the New Zealand Tribunal
11.1 Factors That Apply to Applications to the Tribunal
11.2 Reasonable in the Circumstances
11.3 Orders of the Tribunal
12 Conclusion
Index
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