Kretschmer, Martin --- "Copyright societies do not administer individual property rights: the incoherence of institutional traditions in Germany and the UK" [2002] ELECD 54; in Towse, Ruth (ed), "Copyright in the Cultural Industries" (Edward Elgar Publishing, 2002)

Book Title: Copyright in the Cultural Industries

Editor(s): Towse, Ruth

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781840646610

Section: Chapter 9

Section Title: Copyright societies do not administer individual property rights: the incoherence of institutional traditions in Germany and the UK

Author(s): Kretschmer, Martin

Number of pages: 25

Extract:

9. Copyright societies do not administer
individual property rights: the
incoherence of institutional traditions
in Germany and the UK1
Martin Kretschmer

9.1 INTRODUCTION

Copyright collecting societies occupy a dominant market position in at least
two respects: first, towards the users of protected works who may have just
one legitimate supplier of licences; and second, towards the individual owners
of protected works who may have no alternative provider of a rights
administration infrastructure. In consequence, market prices cannot form
either for licenses to users or for services to rightholders.2 This appears to
leave copyright collecting societies in control of the terms of access to `the
world repertoire' in their particular rights domain. Most Western legislators
have subjected the collecting societies to close regulatory scrutiny in order to
mitigate the temptations of monopolistic behaviour.
This chapter suggests that collecting societies in their historical shape are
highly fragile. It is argued that there is no convincing rationale for the
existence of collecting societies (as we know them) from a premise of
copyright as an individual, exclusive and transferable property right.
However, this premise appears to underlie most recent attempts at legislative
and structural reform, such as the GEMA decisions of the European
Commission (OJL 134, 20 June 1971; OJL 166/22, 24 July 1972), the
SABAM (Case 127/73, BRT v. SABAM, 1974 ECR 313) and SACEM (Case
395/87, Tournier, 1989 ECR 2521) rulings of the European Court of Justice,
the investigation by the British Monopolies and Mergers Commission into ...