related
Guide:

Intellectual
Property

related
Profile:

IPR
chronology

Law

     overview

This profile supplements the Intellectual Property guide, providing information about Australian copyright collecting societies - collective intellectual property rights administration bodies - and some overseas counterparts. It points to studies about their shape and operation.  

     contents of this profile

The following pages cover -

• studies - government, industry and academic studies about collective administration and the activity of particular societies
• Australia & New Zealand - an introduction to copyright collecting societies that are active in Australia and New Zealand
• Europe - pointers to selected major societies in Europe
• Americas - collective rights administration in the US, Canada and other parts of the world
• landmarks - highlights from the history of collective administration in Australia and overseas.

    collective administration

Identifying the use of copyright works and collecting payments for that use is beyond the capacity of most individual creators and many publishers. They lack the expertise and the ratio of administration costs to revenue may be extremely unfavourable on an item by item basis. Identification by users - such as broadcasters - of the ownership of intellectual property and distribution of payment for that use can also be difficult and expensive. The BBC, for example, supposedly uses around 60,000 music items every week.

As a result, many copyright owners and copyright users (with the endorsement of national governments) have turned to collective administration schemes, where a specialist body acts on behalf of individual owners.

In much of the world that administration is performed by a network of not-for-profit copyright collecting societies - sometimes known as authors' societies or reproduction rights organisations (RROs). They often have a statutory basis and may enjoy monopoly powers, with legislation seeking to accommodate the interests of both copyright users (eg pricing and licensing contracts) and individual members (eg equitable distribution and quality of management). In the US and some other jurisdictions administration is by for-profit entities on a quasi-competitive basis.

Collecting societies in Australia, New Zealand, the UK and other locales have five main functions.

They -

• license works in which they hold the copyright or for which they act as agent on behalf of their members for specific uses
• monitor use of those rights
• collect revenue relating to use of the rights
• distribute revenues as royalties to members
• enter into reciprocal arrangements with foreign collecting societies to collect and distribute local royalties to foreign rightsholders and to receive and distribute royalties earned overseas to local rightsholdersh

    licensing and rights management

Societies (and their commercial counterparts) generally utilise two distinct types of licences: blanket licences and specific licences.

Blanket licences authorise copyright users to use, for a specific period of time, all works for which the licensing body is responsible. Such a licence might for example provide a broadcaster with a single annual authorisation encompassing many thousands of songs owned by thousands of composers, lyricists and publishers.

Specific licences - sometimes characterised as transactional licences or individual licences - deal with particular uses of a specific work in a particular context and for a specific time.

Collective administration, particularly of secondary uses such as broadcasting, has developed with the proliferation of rights and uses. Collective administration spreads the cost of administration (eg establishment and maintenance of databases, exemplary litigation, employment of advocates) over all members of the society. 'Blanket licensing' reduces the cost to consumers, with users paying a single fee for access to the whole of a society's repertoire, thereby eliminating high transaction costs that would be incurred through clearing rights with every individual author, publisher, composer, lyricist, artist, performer and record company.

Rights management is complex and concerns widely differing rights such as

• reproduction rights (eg copying by publishers, schools, businesses, government agencies)
• public performance rights
• droit de suite
• lending and rental rights
• broadcasting and cable retransmission rights

Collective licencing applies to a single territory but reciprocal agreements between societies mean that it allows rightsholders to gain remuneration for uses across the globe.

Collective management would be difficult rights bodiers were unable to offer blanket licences and were accordingly required to identify every work and then prove that they were responsible for each right. Collective licenses reflect the challenges of identifying all rights holders (some of whom are unaware of collective management options).

Legislation in many countries accordingly recognises that for the purposes of collective rights administration the works of some rights holders are presumed to be administered by the collective body, a guarantee to rights owners and rights users that the works are being used legitimately.

The natural monopoly of some individual societies within Australia and other countries such as the UK has posed concerns for competition authorities but overall has resulted in little action.

    history

Collective administration dates from 1851, when the Societe des Auteurs, Compositeurs et Editeurs de Musique (SACEM) was established in France as a copyright collecting society for creators and publishers. SACEM replaced the Société des gens de lettres (Society of French Writers), founded in 1837 by Honore de Balzac and Victor Hugo.

SACEM's establishment followed an 1847 ruling by the Tribunal de Commerce de la Seine, based on a 1793 French law specifying that the works of living authors could not be performed in a public theatre without the author's assent. Songwriter Ernest Bourget - now known only as an associate of Offenbach - along with composers Victor Parizot and Paul Henrion refused to pay for food or drink consumed at the fashionable Ambassadeurs cafe on the Avenue des Champ-Elysees in Paris.

They argued that the cafe benefitted by playing their scores every day, without payment and without acknowledgement. They had to pay for their seats and meals but neither the cafe proprietor nor fellow customers intended to pay for their creativity. The proprietor agreed that the music was important - he kept the band - but declined to pay the creators.

The court ruled that justice meant the composers (and their publisher) should share in the benefits from that amenity. It ordered payment - the trio supposedly received exemplary damages - but left the copyright owners to identify the use of their works and secure payment from thousands of cafes, theatres and other venues.

In 1850 Bourget and music publisher Colombier formed the Agence Centrale pour la Perception Droits Auteurs et Compositeurs de Musique, which was replaced by SACEM as a national body in 1851. It served as a model for other societies such as the UK Performing Rights Society (PRS), German Gesellschaft fur Musikalische Auffuhrungs (GEMA) and Australia's Australian Performing Right Association (APRA).

The American Society of Composers, Authors & Publishers (ASCAP) was established in 1914 and flourished despite the 1939 creation by broadcasters of Broadcast Music Incorporated (BMI) and other competitors.

BONUS, the first RRO, was founded in Sweden in 1973 to serve right owners and users of printed materials, which since the late 1960's had been subject to extensive photocopying.

Bernt Hugenholtz's 2000 paper Rights allocation in a digital environment suggests that collective rights bodies are significant because through them authors gained real market power after 100 years of copyright evolution.

By 'pooling' their pecuniary rights in a jointly administered corporation, the authors could now effectively impose their conditions of use upon the producers, even more so after securing the support of the legislature. In many European countries, collecting societies enjoy legal monopolies. Moreover, certain secondary rights, such as the rental right guaranteed by Council Directive 92/100/EEC, have been declared unwaivable.

But the authors had to pay a price for the spectacular successes of the societies. Efficiency demanded that the authors unconditionally surrender their pecuniary rights, thereby enabling the societies to offer blanket licenses to their clients (broadcasters, cable operators, restaurants, etc.). Thus, the exclusive right degenerated into a right to remuneration. For the same reasons, the societies discouraged the individual exercise of moral rights. For ever striving for higher gross income, and increasingly in competition with foreign societies, the rights organizations gradually began to resemble their traditional foes, the producers. Internally, their mission was being undermined as well. Traditionally, the societies administrated not only the rights of 'real' authors, but of other, powerful right holders as well (e.g. music publishers). As a consequence, producers have always had an important say in collecting societies' administration and politics.

    coordination and cooperation

There is no single collective rights management body covering all countries or all of the web. As with most commercial and intellectual property law there is instead a patchwork: resplendent in places, threadbare or moth-eaten in others.

Reciprocity is encouraged by the Confederation Internationale des Societes Auteurs & Compositeurs (CISAC), the International Federation of Reproduction Rights Organisations (IFRRO), the Bureau International des Sociétés Gérant les Droits D'Enregistrement et les Reproduction Mecanique (BIEM) and other bodies.

CISAC was formed in 1926 by the national rights management bodies. It has been active in encouraging international standards for the identification of copyright works such as the International Standard Work Code (ISWC), exchange of rights information between databases and the development of electronic copyright management/digital rights management (DRM) systems.

IFRRO began in 1980 as a working group of the Copyright Committee of the International Publishers Association (IPA) and the International Group of Scientific, Technical & Medical Publishers (STM). It is primarily concerned with photocopying and digital dissemination of text publications.




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