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Articles
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.