Tuesday, March 30, 2010

Collecting societies, let's take a closer look

being involved with my Master thesis, book publication and nowadays translating this book about the Orphan Works situation into a legal English version I have read a lot about collective management organisations (hereinafter: CMOs).

CMOs can have a role...
...in a partial solution to the feared orphan works situation I have been dealing with in the aforementioned publications. Extented Collective Licensing(1), legal presumption of representation, indemnity clauses and even the mandatory collective exercise of rights(2) all are forms in which CMOs get involved. But only a partial solutions, like in solution per nation or region, in my publications I have found out that actually none of the solutions known at the moment could give a real satisfaction within an international environment such as the internet.

I have based this conclusion on the following orphan works viability test:
1) Is the exercise of moral right by authors guaranteed?
2) Is the exercise of economic rights by authors and copyright owners guaranteed?
3) Does the measure create sufficient (legal) certainty for users?
4) Is the measure sufficiently flexible for its users? Does anyone wants to make use of such a system?
5) What are the costs for an individual user? And in international situations?
6) Who participate within the system? Does it deal with many (international) actors?
7) Does the measure rhyme with current legislation? Are changes (international) politically feasible?
8) Is (mutual) recognition in other legal systems possible?

Not one of the solutions in which CMOs are involved is satisfying so far...

I wonder...
...how do they actually manage the authors and neighbouring rights collectively? And is there really not administrative/contractual model possible in which situations like these can be solved?
What about the pilot project with BUMA/STEMRA (dutch CMO) and Creative Commons? Can it be rolled out to other countries?

So I go to Lithuania...
...since it is time for me to take a closer look at those organisations. And what better to do that from the inside. Well, I have (applied and) been selected to do a traineeship at AGATA, the Lithuanian Neighbouring Rights Association in Vilnius. Why in Lithuania? Well, I saw the opportunity there and simply couldn't resist.

My stay will be there just for one month, but I hope to receive a better perspective on what those organisations do and how they innovate on this issue...

(1) more on this issue by: T. Koskinen-Olsson, ‘Collective management in the Nordic countries’, in: Gervais (red.), Collective management of copyright and related rights, Den Haag: Kluwer International 2006, p. 257-282.
(2) S.J. van Gompel, ‘Unlocking the Potential of Pre-Existing Content: How to Address the Issue of Orphan Works in Europe?’, IIC International Review of Intellectual property and Competition Law (38), 2007-6, p. 669-702; IViR: (online version used), p. 15-19.

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