Opinion of 15 February 2008 of the Intellectual Property Council

Summary of the recommendation of 18 October 2005
Corrigendum to Commission Recommendation 2005/737/EC of 18 May 2005 on collective cross-border management of copyright and related rights for legitimate online music services (PDF, 22.39 KB)

Following a study, the European Commission came to the conclusion that the system for the collective management of copyright and related rights is not adequate for the efficient distribution of musical works in the new digital online world. The Commission wanted to stimulate the development of legitimate online services (as opposed to illegal services such as some peer-to-peer networks) for the exploitation of musical works.

As every available service on the Internet is accessible throughout Europe, the providers who legally make music available on the Internet need a license that is not limited to the national borders of a single Member State. Therefore, the European Commission considers it necessary to set up a multi-territorial licensing system.

The European Commission opted for a "soft approach", via a Recommendation, in order to achieve this goal. This will allow service providers on the market to organise themselves and to adapt their system to the new digital online world. While a recommendation of the European Commission is not legally binding, it constitutes an invitation for Member States to introduce regulation.

The general rule of this Recommendation is that rightholders should have the right to entrust the management of any of the online rights, which are required to provide legitimate online music services in a territory determined by them, to a collective rights manager of their choice, irrespective of the Member State of residence or the nationality of either the collective rights manager or the rightholder.

Furthermore, the Recommendation makes additional recommendations, in particular on the accountability of collective rights managers towards rightholders, the representation of rightholders in the decision-making bodies of collective rights managers and dispute resolution.

In this Recommendation, the European Commission invites Member States to take all initiatives necessary to stimulate the growth of legitimate online services in the Community and to report, on a yearly basis, to the Commission on the measures they have taken in relation to this Recommendation.

Opinion of the Intellectual Property Council

After an exploratory discussion within the Copyright and Related Rights Section of the Intellectual Property Council, it was decided to set up a working group with the following mission:

1° carry out an investigation in order to collect information, enabling Belgium to provide a response to the European Commission in accordance with Article 16 of the Recommendation, which invites Member States to report, on a yearly basis, to the Commission on the measures they have taken in relation to this Recommendation and on the management, at Community level, of copyright and related rights for the provision of legitimate online music services;

2° formulate an opinion on the Recommendation and its general context.

The working group submitted its draft opinion on the Recommendation to the relevant Section of the Intellectual Property Council. This Section adopted the opinion, following a discussion, on 15 February 2008.

The opinion was sent to the European Commissioner for the Internal Market, Charlie McCreevy, by the Minister for Entrepreneurship, Vincent Van Quickenborne, on 26 May 2008.

Short summary of the opinion

The opinion states that fair competition in the internal market requires common rules, introduced via a harmonisation directive, that apply to all European parties involved in the collective management of copyright and related rights. It concerns in particular common rules on the status and supervision of management companies.

This directive, which is preferable to the legal instrument of a recommendation, should clearly define the concept of “management company”, as well as determine the nature of the relationship between the rightholder and the management company, establish the competences of the associates of a management company, oblige the associates and mandators to an audit and presentation of the accounts, ensure the transparency of the internal functioning of management companies, and harmonise the licensing and supervision procedure applicable in the various Member States of the European Union.

In addition, this harmonisation directive should determine the national legislation on collectively managed copyright and related rights, in particular the national legislation on the various cross-border online services.

Opinion of 15 February 2008 (French) (PDF, 589.44 KB)

Opinion of 15 February 2008 (Dutch) (PDF, 586.62 KB)