Newsletter
COPYRIGHT INTERMEDIARY ORGANIZATION ACT UNDER AMENDMENT
A meeting of the Executive Yuan Council on 26 March 2008 approved a draft of proposed amendments to the Copyright Intermediary Organization Act. The main points are as follows:
‧The term "copyright intermediary" is to be changed to "collective management of copyright and related rights".
‧The definitions of the terms "collective management organization" (currently "copyright intermediary organization") and "collective copyright management affairs" (currently "copyright intermediary affairs") are to be amended. The restriction allowing only rights holders in works of the same category to organize themselves into a collective management organization (CMO) is to be abolished, in order to save management and trading costs and to simplify channels for licensing and use.
‧Additional conditions for the establishment of a CMO are to be introduced, to avoid duplication and thereby make license negotiations more convenient for users.
‧The provisions prohibiting a CMO member from licensing his works himself or appointing third parties to license works on his behalf are to be abolished. In future such matters can be regulated between a CMO and its members under the organization's articles of incorporation or under management agreements.
‧Factors are defined that should be taken into consideration by a CMO when setting rates of remuneration for use of works under license. A "provisional payment" system is introduced.
Copyright is by nature a private right. It is appropriate that when a CMO formulates rates of remuneration for use of copyright works, it should carefully consider the actual conditions under which users make use of works, and should negotiate with users or listen to their opinions, so that remuneration rates are arrived at through negotiations. New provisions set out factors to be considered by a CMO when formulating rates of remuneration for the use of works. Also, it is inappropriate for the Copyright Authority to intervene in the initial formulation of remuneration rates. Accordingly, the amended Act will require CMOs to announce their remuneration rates and report them to the Copyright Authority; the Copyright Authority should intervene to review the rates set by a CMO only at such time as a user raises an objection to them. During such a review, a user may make provisional payments according to the rate or amount of remuneration originally set or contracted, or in an amount approved by the Copyright Authority, and its use of the work concerned will be exempt from civil and criminal liability for infringement. After the review decision is rendered, the amount payable will be adjusted in accordance with the outcome of the review.
‧The current mandatory requirements as to how CMOs should provide information on the economic rights in works that they manage are to be abolished, so that organizations will be able to decide for themselves the modes of information provision. But CMOs will still be required to provide on request information on the scope of economic rights in works that they manage for decisions as to whether or not to enter into an agreement, and for licensing negotiations.
‧Multiple CMOs will be allowed to set up joint fee collection points.
‧If a member withdraws from a CMO during the term of a licensing agreement concluded between a user and the CMO, the user will no longer be required to pay further remuneration to the former member.
‧Under the current provisions of the Act, disbenefits arising from the withdrawal of a member from a CMO are borne by the copyright user. However, the withdrawal of a member is an internal matter between the member and the CMO, and it is unfair that a change in that relationship should affect the interests of a copyright user. Taking into consideration the practices of CMOs internationally, the proposed amendments provide that in principle, a user may continue to make use of the work of a member that has withdrawn from a CMO until such time as the agreement expires, and need not pay further remuneration to the former member. Meanwhile, the former member may request the CMO to distribute remuneration to him.
‧The duty of a user to provide a schedule of use of works may be excluded by contract.
‧A CMO may institute a criminal prosecution in its own name on a member's behalf only if the rights concerned are placed in trust with the CMO or exclusively licensed to it.
‧Transitional arrangements provide that for a period of two years from the date on which the amended Act takes effect, the new provisions regarding the setting of rates of remuneration, and objections to and IPO review of such rates, should not apply to rates already reviewed and approved by the IPO prior to the amended Act's entry into force.