WORKSHOP ON COPYRIGHT – COLLECTIVE MANAGEMENT INT MARKT IND/EXP organized in co-operation with the Ministry of Culture of the former Yugoslav Republic of Macedonia Skopje, June 3-5, 2013 PROCEDURES FOR THE DETERMINATION OF REMUNERATIONS FOR THE USE OF COPYRIGHT WORKS AND SUBJECT MATTER OF RELATED RIGHTS Dr. Mihály Ficsor, Member and Honorary President, Hungarian Copyright Council, former Assistant Director General of WIPO

Relevant rules in the aquis - Right of representation concerning enforcement of rights Enforcement Directive of 2004  Recital (18): „The persons entitled to request application of those measures [enforcement measures provided in the Directive], procedures and remedies should be not only the rightholders but also persons who have a direct interest and legal standing in so far as permitted by and in accordance with the applicable law, which may include professional organisations in charge of the management of those rights or for the defence of the collective and individual interests for which they are responsible.”  Article 4.1(c): „Member States shall recognise as persons entitled to seek application of the measures, procedures and remedies referred to in this Chapter: (c) intellectual property collective rights management bodies which are regularly recognised as having a right to represent holders of intellectual property rights, in so far as permitted by and in accordance with the provisions of the applicable law,… M. Ficsor, Skopje, June 3-5, 20132

Relevant rules in the aquis - negotiations and settlement of disputes with users (1) Satellite and Cable Directive of 1993: Recital (30): „Whereas contractual arrangements regarding the authorization of cable retransmission should be promoted by additional measures; whereas a party seeking the conclusion of a general contract should, for its part, be obliged to submit collective proposals for an agreement; whereas, furthermore, any party shall be entitled, at any moment, to call upon the assistance of impartial mediators whose task is to assist negotiations and who may submit proposals; whereas any such proposals and any opposition thereto should be served on the parties concerned in accordance with the applicable rules concerning the service of legal documents, in particular as set out in existing international conventions; whereas, finally, it is necessary to ensure that the negotiations are not blocked without valid justification or that individual holders are not prevented without valid justification from taking part in the negotiations; whereas none of these measures for the promotion of the acquisition of rights calls into question the contractual nature of the acquisition of cable retransmission rights;” M. Ficsor, Skopje, June 3-5, 20133

Relevant rules in the aquis - negotiations and settlement of disputes with users (2) Satellite and Cable Directive  Article 11.1: „Where no agreement is concluded regarding authorization of the cable retransmission of a broadcast, Member States shall ensure that either party may call upon the assistance of one or more mediators.”  Article 11.2 to 4.: detailed rules concerning mediation procedures.  Article 12.1: „Member States shall ensure by means of civil or administrative law, as appropriate, that the parties enter and conduct negotiations regarding authorization for cable retransmission in good faith and do not prevent or hinder negotiation without valid justification.” M. Ficsor, Skopje, June 3-5, 20134

Relevant rules in the aquis - governmental regulation and freedom of negotiations; competition Satellite and Cable Directive  Article 13: „This Directive shall be without prejudice to the regulation of the activities of collecting societies by the Member States.”  Recital (34): „Whereas this Directive should not prejudice further harmonization in the field of copyright and rights related to copyright and the collective administration of such rights; whereas the possibility for Member States to regulate the activities of collecting societies should not prejudice the freedom of contractual negotiation of the rights provided for in this Directive, on the understanding that such negotiation takes place within the framework of general or specific national rules with regard to competition law or the prevention of abuse of monopolies;” M. Ficsor, Skopje, June 3-5, 20135

Relevant rules in the aquis - requirements of transparency, efficiency and equal treatment Resale Right Directive of 2001 Recital (28): „The Member States are responsible for regulating the exercise of the resale right, particularly with regard to the way this is managed. In this respect management by a collecting society is one possibility. Member States should ensure that collecting societies operate in a transparent and efficient manner. Member States must also ensure that amounts intended for authors who are nationals of other Member States are in fact collected and distributed. This Directive is without prejudice to arrangements in Member States for collection and distribution.” M. Ficsor, Skopje, June 3-5, 20136

European models with different intensity of state intervention – „liberal” systems Liberal” systems, such as in France:  closest control of tariffs, or special mediation-arbitration systems only in respect of rights to remuneration and cable retransmission rights where the Satellite and Cable Directive (93/83/EEC) prescribes mandatory collective management combined, at least, with a mediation system;  only some general guiding principles in the IP Code for the establishment of tariffs;  normal court jurisdiction;  (however, impact of the decisions of the European Court of Justice and the competition directorate of the European Commission). 7M. Ficsor, Skopje, June 3-5, 2013

European models with differing intensity of state intervention – Copyright Tribunals Copyright Tribunals, such as in particular in the United Kingdom.  Jurisdiction: defined in Sections 149, 205B and Schedule 6 of the Copyright, Designs and Patents Act 1988 (as amended). Anyone who has unreasonably been refused a licence by a collecting society or considers the terms of an offered licence to be unreasonable may refer the matter to the Tribunal.  Function: The main function of the Tribunal is to decide, where the parties cannot agree between themselves, the terms and conditions of licences offered by, or licensing schemes operated by, collective licensing bodies. Its decisions are appealable to the High Court only on points of law.  Members: The Tribunal consists of a Chairman and two deputy Chairmen who are appointed by the Lord Chancellor, and not less than two, but no more than eight, ordinary members appointed by the Secretary of State for Trade and Industry.  Administrative support: The Tribunal is administered by a Secretary, who is a civil servant working in the Intellectual Property Office. 8M. Ficsor, Skopje, June 3-5, 2013

European models with differing intensity of state intervention – voluntary arbitration Voluntary arbitration system, as in Germany. It is voluntary in the sense that, in principle (like in the case of Copyright Tribunals), the arbitration body only acts in case of disputes brought in front of it.  Jurisdiction: based on Articles 14 to 17 of the Law on the Management of Copyright and Neighboring Rights of September 9, 1965 (amended). In disputes to which a collecting society is a party, any party may apply to the Arbitration Board where the dispute concerns: (i) the use of works or performances protected by the Copyright Law, or (ii) the conclusion or amendment of an inclusive contract.  Functions: The Board proposes a settlement to the parties. It becomes enforceable if neither of the parties opposes it within one month. The parties may turn to the court, but only after a proceeding before the Arbitration Board.  Members: the Chairman or his deputy and two assessors (appointed by the Ministry of Justice).  Supervisory authority and administrative support: the Patent Office. 9M. Ficsor, Skopje, June 3-5, 2013

European models with differing intensity of state intervention – approval through obligatory arbitration Tariffs are only applicable if they are approved by an arbitration board, like the Federal Arbitration Commission in Switzerland.  Jurisdiction: based on Articles 55 to 60 of the Federal Law on Copyright and Related Rights of October 9, 1992 (amended). The tariffs are only valid if the Commission approves them.  Functions: The Commission either approves the tariffs or changes them after consultation with the parties. The law prescribes that a tariff cannot be higher for authors than 10% and for owners of related rights than 3%, of the income or the expenses linked to the usage.  Members: a President, the members and two standby members appointed by the Government, and other members delegated by collective management organizations and associations of users. The Commission takes decisions in five- member panels, in which two members are the representatives of the two interested sides.  Supervisory authority: Ministry of Justice.  Administrative support: Federal Institute of Intellectual Property. 10M. Ficsor, Skopje, June 3-5, 2013

Draft directive on collective management – Irish presidency’s proposal (April 2013) (1) Recital (18) Fair commercial terms in licensing are particularly important to ensure that users can obtain licences for works and other […] subject- matter for which a collective management organisation represents rights and to ensure the remuneration of rightholders. Collective management organisations and users should therefore conduct licensing negotiations in good faith and apply tariffs determined on the basis of objective and non-discriminatory criteria. It is appropriate to require that the licence fees or remuneration reflects, in particular, the economic value of the use of the rights in the particular context. (Emphasis added.) M. Ficsor, Skopje, June 3-5,

Draft directive on collective management – Irish presidency’s proposal (April 2013) (2) Article 15. Licensing 1. Member States shall ensure that collective management organisations and users conduct negotiations for the licensing of rights in good faith including the provision of all necessary information on their respective services. 2. Licensing terms shall be based on objective and non-discriminatory criteria, in particular in relation to tariffs. Tariffs for exclusive rights and rights to remuneration shall reflect, in particular, the economic value of the use of the rights in trade, the nature and scope of the use of the work and other subject matter, as well the economic value of the service provided by the collective management organisation. (Emphasis added.) M. Ficsor, Skopje, June 3-5,

БЛАГОДАРАМ BLAGODARAM THANK YOU M. Ficsor, Skopje, June 3-5,