Columbia Journal of Law & the Arts
collective management, copyright, ASCAP, consent decrees, antitrust, digital copyright
Antitrust and Trade Regulation | Intellectual Property Law | Law
Collective management comes in many shapes and sizes. There is, however, an interesting definition proposed by WIPO: [T]he term “collective management” only refers to those forms of joint exercise of rights where there are truly “collectivized” aspects (such as tariffs, licensing conditions and distribution rules); where there is an organized community behind it; where the management is carried out on behalf of such a community; and where the organization serves collective objectives beyond merely carrying out the tasks of rights management . . . . In contrast, “rights clearance organizations” are those which perform joint exercise of rights without any collectivized elements in the system; simply a single source is offered for users to obtain authorization and pay for it. This quote illuminates the difference between the practice of collective management in the United States and the practice in many other countries. That difference is real. It is probably due in part to an ideological resistance to collective models in the United States. Operationally, the difference in the regulatory regimes is obviously a relevant factor, but those regimes are themselves informed by ideology and thus they may be more a symptom than a cause. Simply put, in many countries authors and other rights holders such as performers expect their collectives to do more than just manage their rights. This is what Dr. Ficsor, the author of the WIPO quote above, refers to somewhat cryptically as the “collectivized elements.” In that worldview, the collective model is a legitimate alternative—not an intrinsically inferior one—to the individual exercise of rights. In fact, it may even be seen as superior to individual management precisely because it allows “collectivized elements” to emerge. Those include a collective bargaining function, of course, but also policy advocacy, providing advice on careers, assistance with the application of moral rights and other aspects of authors’ rights.
Daniel J. Gervais,
The Landscape of Collective Management Schemes, 34 Columbia Journal of Law & the Arts. 423
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