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Regulating the Collective Exploitation of Copyright
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See Organisation for Economic Co-operation and Development, The OECD Report on Regulatory Reform, OECD, Paris, 1997.
See Peter Drahos, A Philosophy of Intellectual Properly, Dartmouth, Aldershot, 1996; and Office of Regulation Review, An Economic Analysis of Copyright Reform: A Submission to the Copyright Law Review Committee's Review of the Copyright Act (Cth) 1968, AG PS, Canberra, 1995.
Antony Dnes, The Economics of Law, International Thomson Business Press, London, 1996, p. 33.
Peter Brudenall, ‘The collective administration of copyright and competition policy: tension in the digital age’, Australian Intellectual Property Journal, 8, 1997, pp. 121-133. This concern is somewhat slow in emerging given that concerns about aggregated market power have been long-standing with regards to patent pools. This may be a good indicator of the recent increased value placed on information protected by copyright in comparison to processes and methods protected by patents.
See also International Guide to Collective Administration Organizations: Profiles of National Laws and Organizations Administering Copyright and Neighboring Rights, Little, Brown, Waltham, MA, 1993.
The move towards greater recognition of moral rights in Australia---see D. Clode, ‘Power to the artist: the false promise of moral rights’, Agenda, 5, 1, 1998, pp. 123-132---does not sit comfortably with the role played by collecting societies, since if collecting societies grant licences to anyone who is prepared to pay for them, this appears to convert the exclusive rights under the Copyright Act to mere rights of remuneration.
A blanket licence is a licence whereby the licensee acquires the right to use an entire repertoire or collection, rather than individual works.
See J. M. Fujitani, ‘Controlling the market power of performing rights societies: an administrative substitute for antitrust regulation’ California Law Review, 72, 1984, pp. 103–137.
Treasury, ‘The economic role of copyright’, Economic Roundup, Autumn, 1996, pp. 55–75.
Brudenall, op. cit., Ref. 4, pp. 125–126.
An exception may be those collecting societies that administer statutory licensing schemes and are obliged to make available their collection of copyrighted material at an externally set fee.
Peter Lupton & Peter Drahos, Copyright Collecting Societies: Towards a Regulatory Balance of Public and Private Interests---A Response to the Simpson Report, Australian National University, Canberra, August 1996.
The Notre-Dame LawyerCompetition Policy In OECD Countries: 1994-1995op. cit.http://www.gema.de/eng/public/jahr97/index.html
Office of Regulation Review, op. cit., Ref. 2, pp. 13-15 and 43-50.
For the sake of simplicity the supply of licences is not disaggregated. Therefore, a supply of ten licences could be two copyrights supplied five times or ten different copyrights each supplied once. A more thorough (mathematical) analysis would make such a distinction-see A. Hollander, Market structure and performance in intellectual property: the case of copyright collectives’, International Journal of Industrial Organization, 2, 1984, pp. 199–216.
This holds true only if entry barriers restrict the ability of other parties to enter the market.
The Tribunal's jurisdiction and procedures are explained in Australian Competition and Consumer Commission, Draft Determination---Applications for Authorisation and Notification: Australasian Performing Right Association, Authorisation Nos A30166 to A30173 and N30714, File Nos CA95/26 to CA95/33 and CN95/17, 16 October 1996, pp. 8–12.
Ian Shepherd, ‘Copyright tribunal’, unpublished article, 1995, p. 1.
Australian Competition and Consumer Commission, op. cit., Ref. 17, p. 8. This low number is presumably because the proceedings are thought to be expensive, slow and unnecessarily legalistic---Shane Simpson, Review of Australian Copyright Collecting Societies: A Report to the Minister for Communications and the Arts, Commonwealth of Australia, Canberra, 1995, p. 254.
See Spencer v. The Commonwealth (1907) 5 CLR 418 at 432, per Griffith CJ.
Shepherd, op. cit., Ref. 18, pp. 8–9.
J. Court, ‘The notional bargain approach to the determination of equitable remuneration for compulsory licences: a comment on four decisions of the Copyright Tribunal’, Sydney Law Review, 11, 2, 1987, pp. 348-373 at pp. 368–372.
Ibid., p. 368.
Copyright Agency Ltd v. Department of Education of New South Wales (1985) 59 ALR 172 at 183, per Shepherd J.
Ibid., p. 201, per Shepherd J.
Compare this with the ACCC's process of issuing draft and refined merger guidelines setting out the methodology employed when assessing mergers under the Trade Practices Act.
Report of the Inquiry by the Copyright Tribunal into the Royalty Payable in Respect of Records Generally, 24 December 1979, pp. 98-99. This view was justified by reference to The Commonwealth v. Arklay (1952) 87 CLR 159 at 169, and to subsections. 47(3), 107(3) and 108(1)(a) of the Copyright Act which refer to the ‘equitable remuneration of the owner’.
J Thorpe, ‘In defence of intellectual property tie-ins’, Corporate and Business Law Journal, 8, 1, 1995, pp. 81–92.
Subsection 90(6). See Australian Competition and Consumer Commission, op. cit., Ref. 17; and Trade Practices Commission, Application of the Trade Practices Act to Intellectual Property, AGPS, Canberra, 1991, pp. 11–13.
Fujitani, op. cit., Ref. 8. The United States regulation relied upon consent decrees and standard application of antitrust law. In 1994 the Antitrust Division of the Department of Justice filed documents in US v. Broadcast Music Inc. (SDNY filed 29 June 1994) agreeing to a proposed modification of a 1966 consent decree involving licensing to broadcasters of music performance rights by Broadcast Music Inc. The proposed modification provides a mechanism to enable the court to set an appropriate licensing fee when BMI and a potential licensee are unable to agree on a fee.
Germany also has a dual regulator approach---Kreile & Becker, op. cit., Ref. 13.
However, a former President of the Tribunal acknowledges that the Tribunal is a de facto industry price setter and has an obligation to look beyond the matter before it to consider the consequences of its decisions in the wider marketplace---Shepherd, op. cit., Ref. 18, pp. 10–11.
WEA Records v Stereo FM (1983) 48 ALR 11.
Examples include: telecommunications regulation (under the general provisions of Parts IIIA and IV of the Trade Practices Act), in addition to the telecommunications specific Part XIB (regulating anticompetitive conduct in telecommunications markets) and Part XIC (a telecommunications access regime); and prices surveillance under the Prices Surveillance Act 1983, in addition to Parts IIIA and IV of the Trade Practices Act.
Brudenall, op. cit., Ref. 4, p. 133.
Commission of the European Communities, Communication from the Commission: Follow-up to the Green Paper on Copyright and Related Rights in the Information Society, Brussels, November 1996, COM (96) 586 Final, pp. 26–27.
Lupton and Drahos, op. cit., Ref. 12. They also suggest that, ‘licence rates should not differ between equivalent users’. While this principle is justifiable on equity grounds, it is difficult to justify on economic grounds or in practice. As the access regimes in the Trade Practices Act shows, once a fair framework for negotiation is set in place then regulators should not intervene. Even if intervention was allowed, in practice it would be difficult to establish what level of equivalence was necessary to be an ‘equivalent user’.
Australian Competition and Consumer Commission, op. cit., Ref. 17, pp. 29-30 and 85; A. Schlesinger, ‘Collecting societies and United States anti-trust law’, in D. Pepperkorn & C. van Rij (eds), Collecting Societies in the Music Business: Reports Presented at the Meeting of the International Association of Entertainment lawyers, Maklu Publishers, Apeldoorn, 1989, pp. 85-90, at p. 85.
For example, subsection 90(6) of the Trade Practices Act.
Commission of the European Communities, Green Paper: Copyright and Related Rights in the Information Society, Brussels, August 1995, COM 95) 382 Final, p. 75.