Studie ISPA: Legal and practical problems of rights clearance from the perspective of a content provider and alternative models

Na objednávku rakouské ISPA byla vypracována studie k problémům licencování autorských děl online (vedoucím autorského kolektivu byl prof. Andreas Wiebe).

Závěrečná doporučení studie:

• The European legislator is called upon to adapt copyright law in the direction that all acts of reproduction ancillary to online distribution of works should be consumed by the right of making available that was already established by international treaties. The European legislator should put efforts in achieving such an adaptation on the level of international treaties
• As intransparency is a major problem a duty of right holders should be introduced to make available to the public information on their repertoire by registering with a database
• CMO´s and other rightholders should make tariffs and licensing fees completely transparent by publishing it on the website
• Interoperable machine-readable standards are required concerning information about rights and right holders in order to create transparency on the market. Efforts should be made to promote international standardization in this respect
• Internationally acknowledged standards also have to be developed for monitoring and reporting systems; the EU should actively support this process  
• The legal framework for transparency and governance proposed by the EU in the Directive 2012 should also be applied to new entities acting as agents with a similar function than CMO
• A presumption of bundling of rights in one hand for a specific song would considerably reduce fragmentation. However, the specificities of such a presumption need further refinement
• Statutory licensing is not compatible with a dynamic market like online music services
• Coordination problems resulting from co-authorship may be coped with by reference to existing commercial partnership rules rather than private partnerships. Thus, representation (and transfers) could be done by each author for the whole partnership
• With respect to the geographical fragmentation the EU proposal of fostering non-exclusive licensing CMOs as “hubs” combined with a “European passport” is preferable to a one-stop-shop model or application of a country of origin principle; competitive issues are reconciled with requirements to represent as much repertoire as possible – substituting the former reciprocal exclusive agreements between CMOs  
• An option for direct licensing for non-commercial uses (“dual licensing”) using CC licenses should be freely available to rightholders; necessary amendments should be included in the European framework for CMO´s   
• Legislators should introduce minimum requirements for calculating tariffs designed for innovative online services in order to take into account dynamic competition and business effects, and avoiding lump sums in advance
• Antitrust provisions should not hinder online services to group in order to form counterbalancing bargaining powers. Also, industrial associations should be recognized as potential collective license partners
• Efficient dispute resolution mechanisms are required, preferably on an online basis     

Studie online.