Comments of the Max Planck Institute for Intellectual Property and Competition Law on the Proposal for a Directive of th
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Comments of the Max Planck Institute for Intellectual Property and Competition Law on the Proposal for a Directive of the European Parliament and of the Council on Collective Management of Copyright and Related Rights and Multi-Territorial Licensing of Rights in Musical Works for Online Uses in the Internal Market COM (2012)372 Prof. Dr. Josef Drexl • Sylvie Ne´risson • Felix Trumpke • Prof. Dr. Reto M. Hilty Published online: 4 April 2013 Ó Max Planck Institute for Intellectual Property and Competition Law, Munich 2013
Abstract The Max Planck Institute welcomes the initiative of the European Commission for a binding legal instrument on collective management of copyright and related rights in the EU. Numerous provisions are to be appreciated. Yet the Commission seems to fail to take account of the full legal framework and factual
Prof. Dr. J. Drexl (&) LL.M. (UC Berkeley); Director, Max Planck Institute for Intellectual Property and Competition Law; Honorary Professor, University of Munich, Munich, Germany e-mail: [email protected] S. Ne´risson LL.M., Ph.D.; Senior Research Fellow, Max Planck Institute for Intellectual Property and Competition Law, Munich, Germany e-mail: [email protected] F. Trumpke Ph.D. Candidate, Max Planck Institute for Intellectual Property and Competition Law, Munich, Germany e-mail: [email protected] Prof. Dr. R. M. Hilty Director, Max Planck Institute for Intellectual Property and Competition Law; Full Professor ad personam, University of Zurich; Honorary Professor, University of Munich, Max Planck Institute for Intellectual Property and Competition Law, University of Munich, Marstallplatz 1, 80539 Munich, Germany e-mail: [email protected]
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circumstances that have structured the current system of collective rights management. Disposing of natural monopolies in a two-sided market, collecting societies should not refuse to grant access to their services to rightholders and users. Hence, it is strongly recommended that the European legislature follows the experience of numerous Members States and proposes an obligation to contract with rightholders as well as with users. The critique on the Commission’s approach to cross-border licences for online rights on musical works as set forth in the Recommendation of 2005 has unfortunately not been duly considered and the Commission’s assessment of the practical effects of the Recommendation is mistaken. Differences of substantive copyright law among Member States still constitute an obstacle to the establishment of an internal market for works. This is why the Institute deems the Commission’s sectorial approach to the regulation of cross-border licensing to be problematic. Also such regulation would require further harmonisation of substantive copyright law. Moreover, the Proposal fails to take account of statutory remuneration rights and cases of mandatory collective management. Both pursue specific protection of original rightholders. In this regard the Propo
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