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What is protection of
related rights?
What is
collective management of copyright and related rights?
Why is collective management of
copyright and related rights necessary?
Who are members?
What are the commonest types of
right under Collective Management?
Where do collective management
organizations operate?
Links to non-governmental
organizations
Socio-economic and
cultural dimension
Collective
management and the digital environment
Before
defining the concept of collective management and introducing its main features,
let us look briefly at what copyright and related rights themselves amount to.
When a
person creates a literary, musical, scientific or artistic work, he or she is
the owner of that work and is free to decide on its use. That person (called the
"creator" or the "author" or "owner of rights") can control the destiny of the
work. Since, by law, the work is protected by copyright from the moment it comes
into being, there is no formality to be complied with, such as registration or
deposit, as a condition of that protection. Mere ideas in themselves are
not protected, only the way in which they are expressed.
Copyright is the legal protection extended to the owner of the rights in an
original work that he has created. It comprises two main sets of rights: the
economic rights and the moral rights.
The
economic rights are the rights of reproduction, broadcasting, public
performance, adaptation, translation, public recitation, public display,
distribution, and so on. The moral rights include the author's right to
object to any distortion, mutilation or other modification of his work that
might be prejudicial to his honor or reputation.
Both
sets of rights belong to the creator who can exercise them. The exercise of
rights means that he can use the work himself, can give permission to someone
else to use the work or can prohibit someone else from using the work. The
general principle is that copyright protected works cannot be used without the
authorization of the owner of rights. Limited exceptions to this rule, however,
are contained in national copyright laws. In principle, the term of protection
is the creator's lifetime and a minimum of 50 years after his death.
These
legal aspects are specified in international conventions to which most countries
are now party. On their accession, member States should have national
legislation that are in line with the international standards.
At the
international level, the economic and moral rights are conferred by
the Berne Convention for the Protection of Literary and Artistic Works,
commonly known as the "Berne Convention". This Convention, which was adopted in
1886, has been revised several times to take into account the impact of new
technology on the level of protection that it provides. It is administered by
the World Intellectual Property Organization (WIPO), one of the specialized
international agencies of the United Nations system.
Whereas
the rights provided by copyright apply to authors, "related rights", also known
as "neighboring rights" concern other categories of owners of rights, namely,
performers, the producers of phonograms and broadcasting organizations.
Related rights are the rights that belong to the performers, the producers of
phonograms and broadcasting organizations in relation to their performances,
phonograms and broadcasts respectively.
Related
rights differ from copyright in that they belong to owners regarded as
intermediaries in the production, recording or diffusion of works. The link with
copyright is due to the fact that the three categories of related rights owners
are auxiliaries in the intellectual creation process since they lend their
assistance to authors in the communication of the latter's works to the public.
A musician performs a musical work written by a composer; an actor performs a
role in a play written by a playwright; producers of phonograms -- or more
commonly "the record industry" -- record and produce songs and music written by
authors and composers, played by musicians or sung by performers; broadcasting
organizations broadcast works and phonograms on their stations.
At the
international level, related rights are conferred by the International
Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations, better known as the "Rome Convention". This
Convention was adopted in 1961 and has not been revised since. It is jointly
administered by the United Nations Educational, Scientific and Cultural
Organization (UNESCO), the International Labour Organization (ILO) and WIPO.
The
1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (or
TRIPS Agreement), which is administered by the World Trade Organization (WTO),
incorporates or refers to this international protection.
There
are still other international treaties that concern copyright and related rights
protection; further information may be obtained on them by applying to WIPO (see
address below).
It has
been mentioned that the creator of a work has the right to allow or to prohibit
the use of his works; a playwright can consent to his work being performed on
stage under certain agreed conditions; a writer can negotiate a contract with a
publisher for the publication and distribution of a book; and a composer or a
musician can agree to have his music or performance recorded on compact disc.
These examples illustrate how the owners of the rights can exercise their rights
in person.
Other
cases show that individual management of rights is virtually impossible with
regard to certain types of use for practical reasons. An author is not
materially capable of monitoring all uses of his works; he cannot for instance
contact every single radio or television station to negotiate licenses and
remuneration for the use of his works. Conversely, it is not practical for a
broadcasting organization to seek specific permission from every author for the
use of every copyrighted work. An average of 60'000 musical works are broadcast
on television every year, so thousands of owners of rights would have to be
approached for authorization. The very impracticability of managing these
activities individually, both for the owner of rights and for the user, creates
a need for collective management organizations, whose role is to
bridge the gap between them in these key areas, among others.
Collective management is the exercise of copyright and related rights by
organizations acting in the interest and on behalf of the owners of rights.
Why is
collective management of copyright and related rights necessary?
Composers, writers, musicians, singers, performers and other talented
individuals are among society's most valuable assets. The fabric of our cultural
lives is enriched by their creative genius. In order to develop their talent and
encourage them to create, we have to give those individuals incentives, namely
remuneration in return for permission to make use of their works.
Collective management organizations are an important link between creators and
users of copyrighted works (such as radio stations) because they ensure that, as
owners of rights, creators receive payment for the use of their works.
Who are members?
Membership of collective management organizations is open to all owners of
copyright and related rights, whether authors, composers, publishers, writers,
photographers, musicians, or performers. Broadcasting organizations are not
included in the list, as they are considered users, even though they have
certain rights in their broadcasts. On joining the collective management
organization, members provide some personal particulars and declare the works
that they have created. The information provided forms part of the documentation
of the collective management organization that allows the link between the use
of works and payment for the use of works to be made to the correct owner of the
rights. The works declared by the organization's members constitute what is
known as the "national" or "local" repertoire (as opposed to the international
repertoire which is made up of the foreign works managed by collective
management organizations in the world).
What are the commonest
types of right under Collective Management?
Collective management organizations most commonly take care of the following
rights:
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The
right of public performance (music played or performed in discotheques,
restaurants, and other public places);
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The
right of broadcasting (live and recorded performances on radio and
television);
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The
mechanical reproduction rights in musical works (the reproduction of works in
CDs, tapes, vinyl records, cassettes, mini-discs, or other forms of
recordings);
-
The
performing rights in dramatic works (theater plays);
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The
right of reprographic reproduction of literary and musical works
(photocopying);
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Related rights (the rights of performers and producers of phonograms to obtain
remuneration for broadcasting or the communication to the public of
phonograms).
How does
collective management work?
There
are various kinds of collective management organization or groups of such
organizations, depending on the category of works involved (music, dramatic
works, "multimedia" productions, etc.) that will collectively manage different
kinds of right.
"Traditional" collective management organizations, acting on behalf of
their members, negotiate rates and terms of use with users, issue licenses
authorizing uses, collect and distribute royalties. The individual owner of
rights does not become directly involved in any of these steps.
Rights clearance centers grant licenses to users that reflect the conditions
for the use of works and the remuneration terms set by each individual holder of
rights who is a member of the center (in the field of reprography, for instance,
authors of written works such as books, magazines and periodicals). Here the
center acts as an agent for the owner of the rights who remains directly
involved in setting the terms of use of his works.
"One-stop-shops" are a sort of coalition of separate collective management
organizations which offer users a centralized sources where authorizations can
be easily and quickly obtained. There is a growing tendency to set up such
organizations on account of growing popularity of "multimedia" productions
(productions composed of, or created from, several types of work, including
computer software) which require a wide variety of authorizations.
IN
THE FIELD OF MUSICAL WORKS (encompassing all types of music, modern, jazz,
classical, symphonic, blues and pop whether instrumental or vocal),
documentation, licensing and distribution are the three pillars on which the
collective management of the rights of public performance and broadcasting is
based.
The
collective management organization negotiates with users (such as radio
stations, broadcasters, discotheques, cinemas, restaurants and the like), or
groups of users and authorizes them to use copyrighted works from its repertoire
against payment and on certain conditions. On the basis of its documentation
(information on members and their works) and the programs submitted by users
(for instance, logs of music played on the radio), the collective management
organization distributes copyright royalties to its members according to
established distribution rules. A fee to cover administrative costs, and in
certain countries also socio-cultural promotion activities, is generally
deducted from the copyright royalties. The fees actually paid to the copyright
owners correspond to the use of the works and are accompanied by a breakdown of
that use. These activities and operations are performed with the aid of
computerized systems especially designed for the purpose.
IN
THE FIELD OF DRAMATIC WORKS (which includes scripts, screenplays, mime
shows, ballets, theater plays, operas and musicals), the practice of collective
management is rather different in that the collective management organization
acts as an agent representing authors. It negotiates a general contract with the
organizations representing theaters in which the minimum terms are specified for
the exploitation of particular works.
The
performance of each play then requires further authorization from the author,
which takes the form of an individual contract setting out the author's specific
conditions. The collective management organization then announces that
permission has been given by the author concerned and collects the corresponding
remuneration.
IN
THE FIELD OF PRINTED WORKS (meaning books, magazines, and other periodicals,
newspapers, reports and the lyrics of songs), collective management mainly
involves the grant of the right of reprographic reproduction, in other words
allowing protected material to be photocopied by institutions such as libraries,
public organizations, universities, schools and consumer associations.
Non-voluntary licensing arrangements, when allowed by international conventions,
can be written into national legislation; in such cases, a right of use against
remuneration is accorded that does not require the consent of the owner of
rights. Collective management organizations administer the remuneration. In the
special case of reproduction for private and personal use, some national
legislation contains specific provision for equitable remuneration payable to
the owners of rights and funded by a levy imposed on equipment or photocopies or
both.
IN
THE FIELD OF RELATED RIGHTS, the national legislation of some countries
provide for a right of remuneration payable to performers or producers of
phonograms or both when commercial sound recordings are communicated to the
public or used for broadcasting. The fees for such uses are collected and
distributed either by joint organizations set up by performers and producers of
phonograms or separate ones, depending on the relation of those involved and the
legal situation within the country.
Where do
collective management organizations operate?
The
application of national laws that establish rights in literary and artistic
works and in related rights has an effect only within the boundaries of that
country. According to the national treatment principle enshrined in both the
Berne Convention and the Rome Convention, foreign owners of rights are treated
in the same way as nationals in most respects. This principle is upheld by
collective management organizations which, under reciprocal representation
agreements, administer foreign repertoires on their national territory, exchange
information and pay royalties to foreign owners of rights.
Links to
non-governmental organizations
There
is now a well-established global network of collective management organizations,
and they are strongly represented by non-governmental organizations such as the
International Confederation of Societies of Authors and Composers (CISAC), the
International Federation of Reprographic Reproduction Organisations (IFRRO), and
at the European level, the Association of European Performers Organizations (AEPO),
to mention only those.
As part
of its international development cooperation activities, WIPO is working closely
with the above organizations, and also with others, such as the International
Federation of Actors (FIA), the International Federation of Musicians (FIM), the
International Federation of the Phonographic Industry (IFPI). The aim is to
assist developing countries, upon their request, in establishing collective
management organizations, and to strengthen existing organizations to ensure
that they can be fully efficient and effective, among other things in their
response to the challenges of the digital environment. Such activities are
carried on under the WIPO Cooperation for Development Program.
Collective management does a valuable service to the world of music and other
creative arts. By managing their rights, the system is rewarding creators for
their work, and the creators in turn are more inclined to develop and apply
their talents in an environment that provides adequate copyright and related
rights protection and an efficient system for the management of rights. Such a
situation encourages creators to contribute to the development of the cultural
sector, attracts foreign investment and generally enables the public to make the
most of a broad array of works. Together, these factors have an undeniably
favorable impact on national economies; cultural industries contribute up to 6%
of the gross national product of some major countries, income from the
collective management of copyright and related rights accounts for a substantial
part of that percentage.
Some
collective management organizations offer various kinds of social welfare
protection to their members. The benefits often include assistance with
payment for medical treatment or insurance, annuities on retirement or some sort
of guaranteed income based on the members royalty payments history.
Collective management organizations may sponsor
cultural activities to
promote the national repertoire of works at home and abroad. They promote the
holding of theater festivals, music competitions, productions of national
folklore and music anthologies and other such activities.
Welfare
protection and the promotion of cultural activities are not compulsory. When
they are provided for, however, they may take the form of a deduction that the
collective management organization makes from the royalties collected. There is
no unanimous view among collective management organizations on the idea of a
deduction, which according to the rules of CISAC should not represent more than
10% of net income.
Copyrighted works will be increasingly delivered in digital form via global
networks such as the Internet. As a result the collective management of
copyright and related rights by public, semi-public and market sector entities
will be re-engineered to take advantage of the efficiency gains offered by
information technology. The ever-increasing opportunities offered to the holders
of rights by the Internet and the advent of "multimedia" productions are
affecting the conditions of protection, the exercise and management of copyright
and related rights, and also the enforcement of rights.
In the
online world of the new millennium, the management of rights is taking on a new
dimension. Protected works are now digitized, compressed, uploaded, downloaded,
copied and distributed on the Internet to any place in the world. The expanding
power of this network allows mass storage and online delivery of protected
material. The possibility of downloading the contents of a book, or to listen to
and record music from cyberspace is now a reality. While this presents
immeasurable opportunities, there are also many challenges for owners, users and
collective management organizations.
Many
collective management organizations have developed systems for online delivery
of information relating to the licensing of works and content, the monitoring of
uses and the collection and distribution of remuneration for various categories
of works within the digital environment. These digital information systems,
which depend on the development and use of unique numbering systems and codes
that are embedded in digital carriers such as CDs, films, allow works, the
rights owners, the digital carriers themselves to be properly identified and
provide other relevant information. Adequate legal protection is needed to
prevent acts intended to circumvent technical protection measures, and also to
insure against the removal or alteration of any elements of the digital
information systems or other such practices.
Two
treaties were concluded in 1996, under the auspices of WIPO, to respond to the
challenges of protecting and managing copyright and related rights in the
digital age. Known as "the Internet treaties," the WIPO Copyright Treaty and the
WIPO Performances and Phonograms Treaty (WCT and WPPT respectively -- see the
WIPO information brochures on them) deal among other things with obligations
concerning technological protection measures and rights management information
in the digital environment; they ensure that the owners of rights are protected
when their works are disseminated on the Internet; they also contain provisions
requiring national legislators to provide efficient protection for technological
measures, by prohibiting the import, manufacture and distribution of illicit
circumvention tools or material and also outlawing acts detrimental to rights
management information systems.
There
are other specific brochures on copyright, related rights and the WCT and WPPT
treaties; they are obtainable from WIPO on request. For more information on
collective management, the reader should approach the Copyright Collective
Management Division at WIPO on +41-22 338 91 43 (Secretariat), or visit the WIPO
website, www.wipo.int.
For
general information contact
WIPO
34 chemin des Colombettes
1211 Geneva 20, Switzerland
tel. +41-22 338 91 11
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