Research project

Investigator:
Martin Miernicki

Abstract:
The collective management of copyrights has traditionally occupied a fundamental role in the exploitation of exclusive rights. Yet, the environment for collective management organizations (CMOs) like ASCAP and BMI has undergone profound changes in recent years; the question of how regulation should respond to these changes remains unresolved. Suggested answers oscillate between national monopolies for CMOs and free competition among these organizations. To contribute to this discussion, the present research deals with the collective management of copyrights and copyright regulation in the European Union and the United States. For this purpose, the legal status of CMOs is analyzed with regard to their relations to right holders, users, and other CMOs; a particular focus is put on antitrust law and sector-specific regulation. This research is conceived as a comparative study and defines concrete legal questions and juxtaposes the answers given by the two jurisdictions. In this way, the research discloses fundamental differences in the legal approaches to CMOs and highlights that these differences are rooted in historical developments, market structures, underlying substantive laws, and, to a certain extent, ideological conceptions. Moreover, it argues that statutory licensing poses a very similar problem and that a coherent solution is desirable. The paper concludes that both competition and monopolism are valid approaches to the collective management of copyrights if applied under the right circumstances and accompanied by appropriate regulation. The decision which and to what extent one of these approaches should be followed is essentially a legislative task that should keep in mind the different interests involved, applicable copyright legislation, and constitutional laws, as well as cultural diversity.