CRITERIOS PARA LA SELECCIÓN DE INVENTARIOS DE

The structural layout of Collective Management Organisations differs from one organization to another and across countries139_{. These differences are usually} influenced by the legislative framework under which each Collective Management Organisation operates.140 _{These operating systems are} numerous including the following:

trouble with the plan is that the only people who appear to actually believe that the current copyright rules apply as writ to every person on the planet are the member of the copyright bar… but that’s a far cry from persuading the ten or twenty million new printers and reprinters.”

138 _{Ibid, Litman opined that “people don’t obey laws that they don’t believe in…Most people try}

to comply, at least substantially, with what they believe the law to say. If they don’t believe the law says what it in fact says, though, they won’t obey it-not because they are protesting its provisions, but because it doesn’t stick in their heads.”

139

Gervais Collective Management 12 Available online at http://aix1.uottawa.ca/~dgervais/publications/collective_management.pdf

140

See the report Commissioned by the Copyright Licensing Agency and prepared by PricewaterhouseCoopers LLP (PwC) “An economic analysis of copyright, secondary copyright and collective licensing”. Available online at http://www.ipo.gov.uk/ipreview-c4e-sub- plsreport.pdf Date of use: 24 March 2012 at 37

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1. The legal basis on which the society operates141 2. The field of activity142

3. The ways rights are acquired143

4. Whether it is for-profit or not-for-profit144

5. The way they are managed (type of governance, type(s) of membership organization, agency, etc.);

6. The way they license (on a transactional basis, i.e., work-by-work, or on a blanket or other basis); or

7. The way they distribute their funds (use of surveys, application of national treatment, use of funds for purposes other than distribution, etc).

In a report produced by PricewaterhouseCoopers LLP (PwC),145 _considering among other things copyright collective management structures, reference was made to the International Federation of Reproduction Rights

141

Gervais Op cit footnote 139 where he identified the 4 main classifications under the Canadian Copyright law as follows:

1. Music performing and certain neighboring rights (section 67 of the Copyright Act); 2. General regime (section 70);

3. Particular cases” regime (retransmission and educational institutions section 71); and

4. Private copying.

142

Ibid. The Copyright Board listed existing Canadian collectives and identified the following areas:

i) Music ii) Literary

iii) Audiovisual and multimedia iv) Visual arts

v) Retransmission vi) Private copying vii) Educational rights viii) Media monitoring

143

Ibid. Rights may be acquired voluntarily, non-voluntarily or by some other mechanism;

144

See S.39(2)a of the Nigerian Copyright Act which provides that collecting societies must be registered as companies limited by guarantee and under the Companies and Allied Matters Act of 2004. A company limited by guarantee is a not for profit company.

145

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Organisation’s (IFRRO) classification of the models of operation of collective management organizations as follows:

“1. Voluntary collective licensing (e.g. US, Canada, UK) where organisations are free to license for reproduction rights either with an individual rights owner or a CMO mandated to act on the rights owners’ behalf (but with no stipulation in law to govern this role).

2. Voluntary collective licensing with back-up in legislation which takes two forms: a. Extended collective management (e.g. Norway). This follows the voluntary

model above except that the agreements reached between users and CMOs are extended to cover rights owners who have not specifically mandated the CMO to act on their behalf. Rights owners are able to opt out of the CMO if they wish.

b. Compulsory collective management (e.g. France) – under this system rights owners are legally obliged to negotiate secondary rights through a CMO with no opt out.

3. Licensing under a legal licence. This also takes two forms:

a. Non-voluntary system with a legal licence (e.g. Switzerland). Here a licence to copy is provided by law so that no agreement with the rights owner is needed. There is a right to remuneration, however, and a statutory licence fee is set by law and collected by a CMO on behalf of all rights owners.

b. Private copying remuneration with a levy system (e.g. Belgium). Secondary licence fees are levied on copying equipment at the point of sale or for ongoing operation (e.g. for photocopiers) and the CMO collects and distributes the fees to the rights owner.”146

The seven operating systems identified by Daniel J Gervais and the three structural models mentioned in the PWC report, both dealing with CMO’s operation, reflect how CMO’s carry out their core mandates147 _{which, in a}

146

Ibid. It is noteworthy that the PWC report focused on literary and artistic works (i.e. books, journals, magazines and other periodicals, paintings, sculptures and other artistic works)

147

See Introduction To Collective Management Of Copyright And Related Rights available

online at

http://uatm.com.ua/laws/int/Introduction%20to%20Collective%20Management%20of%20Cop yright%20and%20Related%20Rights.pdf Date of use: 24 March 2012 where the core mandates of a collective management organization were highlighted as follows:- “In the framework of a collective management system, owners of rights authorize collective management organizations to administer their rights, that is, to monitor the use of the works

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general sense involve the monitoring of owners’ works, negotiating terms of use with users, granting or issuance of licenses, collecting of royalties from users and distribution of same to right owners148_{. In the use of any of these} models what must be borne in mind is that the transaction element always involves the right of the Copyright/Related Right Owner. It is therefore important that whatever structural model is adopted in the formation or reformation of a legal framework, the interest of rights’ owners’ should be specially considered and they should be allowed the privilege and opportunity of taking decisions in respect of the collective management of their rights.149 Where a society provides for voting rights, caution should be taken in the investiture of voting rights150 _{as such rights are best handled by those who} have substantial interest in the society.151

3.2 Legal Framework for Copyright Collective Administration in