Author: Dragan Milić

Publisher: OSCE Mision to Serbia

 

This analysis was supported by the Embassy of the Kingdom of Norway and the OSCE Mission to Serbia.  The views expressed in this research are solely those of the authors and do not reflect the official views of the Embassy of the Kingdom of Norway or the OSCE Mission to Serbia.

 

The author, or another copyright holder who wants to protect or exercise his/her right, can do it in individual or collective manner. Certain rights are in principle exercised individually, while for others due to their specifics only a collective method of management is provided, through specialized organizations established precisely for the purpose of performing the activity of collective management of copyright and related rights, to which the competent intellectual property institution has entrusted all necessary powers for performing the specified activity. Individual management is the most comprehensive type of protection, with the largest volume of offered requirements available to authors, in situations when it is practically feasible and adequate. On the other hand, collective management is especially relevant in the market of musical copyright works, i.e. in the market where, in addition to authors, producers of phonograms, videograms and performers also appear as entities. Given the problems that occur in practice in both management alternatives, we will present the analysis of each of the respective segments separately.

 

Also, the analysis will first provide an overview of the current situation and shortcomings, and then point out the potential solutions that are applied in comparative law, and which would improve the current solutions in the positive law of the Republic of Serbia and in practice.

 

 

1. ANALYSIS OF CURRENT REGULATIONS IN THE FIELD OF COLLECTIVE MANAGEMENT OF COPYRIGHT AND RELATED RIGHTS AND THE PRACTICE

Law on Copyright and Related Rights[1] (hereinafter: LCRR or the Law) stipulates that copyright and related rights are collectively managed through organizations for the collective management of copyright and related rights (hereinafter: Organizations), which are not of a lucrative nature and which specialize in managing rights related to certain subject matters of protection[2].

In order for a certain Organization to be able to perform the activity of collective management of copyright and related rights, it is necessary to obtain a permit from the competent authority, i.e. the Intellectual Property Office. The amendments to the Law from 2019 define the documentation that the Organization must submit[3], as well as the conditions that the Organization needs to meet in order to be able to perform a specific activity[4].

There are currently six organizations in the Republic of Serbia for the collective management of copyright and related rights, namely:

  • Organization of Music Authors of Serbia – SOKOJ;
  • Organization of Phonogram Producers of Serbia – OFPS;
  • Organization for Collective Management of Performers’ Rights – PI;
  • Organization of Photography Authors – OFA;
  • Organization for Management of Reprographic Rights – OORP;
  • Organization of Film Authors of Serbia – UFUS AFA ZAŠTITA.

 

Holders of copyright, or related rights, will exclusively confer their rights on the Organization, and instruct it to conclude contract on non-exclusive assignation with persons who will use copyright works, or subject matters of related rights, in its own name and on their behalf[5] (hereinafter: Users), as well as to collect remuneration from the Users in its own name and on behalf of the right holders. Also, only one Organization may obtain a permit from the competent authority for collective management of rights in relation to the same type of rights over the same type of subject matter of copyright or related rights[6], which means that this particular Organization has a monopoly position in terms of collective management of a particular type of right on a particular type of work or subject matter of related right.

Regarding the rights that their holders assign to the Organization, LCRR prescribed the mandatory collective management of certain rights, while for the other type of rights the holders have the freedom to choose whether to manage them collectively, i.e. through the Organization or individually.[7]

Some of the rights for which the legislator has prescribed collective management as mandatory are the following: the rights of the performer to the fee for broadcasting and rebroadcasting the interpretation from the recording issued on the sound/sound and image carrier, for public announcement of the interpretation broadcast from the recording issued on the sound/sound and image carrier, for public announcement of the interpretation from the recording issued on the sound/sound and image carrier; the rights of phonogram producers to the fee for broadcasting and re-broadcasting of phonograms, public announcement of phonograms and public announcement of phonograms that are broadcast, etc.

Furthermore, the LCRR stipulates that each Organization must have a General Assembly, Administrative Board, Managing Director and Supervisory Board as its bodies, and concerning the general enactments of the Organization, the Statute, Tariff and Distribution Plan will be necessary, with the possibility of other general enactments that more precisely define certain matters concerning the Organization’s business activity[8]. The Statute constitutes the highest enactment of the Organization and other general enactments must be aligned with it, the Distribution Plan will clearly and unambiguously set the criteria on the basis of which the Organization distributes the amount of remuneration collected from the Users. The Tariff will be a very important enactment of the Organization because it determines the amount and manner of determining the remuneration that Users will be required to pay for the use of copyright or related rights. The Organization initiates negotiations on the tariff by inviting representative associations of Users and individual Users[9]. Following the call for negotiations, the two parties seek to conclude a tariff agreement. In case of impossibility to find a solution that would suit both parties, i.e. impossibility to conclude a tariff agreement within 60 days from the invitation to negotiations, the proposed tariff will be determined by the Administrative Board of the Organization and submitted to the competent authority for approval[10].

Further, Article 184 of LCRR stipulates that the Organization is obliged to pay by the end of the calendar year, i.e. by 31 December, to the holders of copyright or related rights who have concluded a contract with it or who have not informed it that they will individually exercise their rights, the amount collected from the Users for their use of the subject matter of protection in the previous year minus the funds for covering the justified costs of collective management of rights. It should also be noted that the Organization may, for justified and elaborated reasons, extend this period. Therefore, holders of copyright or related rights who have concluded an exclusive assignment contract with the Organization are fully equated with those rightholders who have not entered into a contract, but have not informed the Organization that they will exercise their rights individually[11], as there is a presumption that the Organization has the authority to act on behalf of all national and foreign rightholders with respect to any subject matters of protection that are within the scope of its business activity[12].

As far as the Users are concerned, in accordance with the law, before they begin to use the subject matter of protection they are obliged to acquire from the Organization the rights to use the copyright or the subject matter of the related rights in a certain way, and to inform Organization within 15 days  about all the circumstances of relevance for the calculation and distribution of funds[13].

Article 188 of the Law also stipulates the supervision over the work of the Organization by the competent authority that supervises whether the Organization operates in compliance with the license granted to it and in compliance with legal provisions. In order to conduct supervision, the competent authority will have the right to have its representative attending the sessions of the Organization’s bodies and to state opinions concerning the collective management, to demand a written answer to its questions, and to inspect business documents. In case it establishes irregularities in the work, the competent authority will indicate them to the Organization, and order the implementation of measures and a deadline for elimination of irregularities[14].

In the process of conducting supervision, the Organization will have certain obligations towards the competent authority in terms of submitting documentation that includes: annual business reports, annual account of remunerations and certified auditor’s report; agreements between the organization and representative associations, and amendments to the statute, tariff and other general enactments of the Organization[15]. In addition, the Organization is obliged to adopt within six months from the end of the business year the annual reports of its bodies on paid amounts and allocation thereof, reports on operations of the Organization, execution of agreements concluded, certified auditor’s report on annual business report, calculation of remunerations, as well as the proposal of the financial plan of the Organization for the following year[16].

The Law also prescribes the content of complete documentation that the Organization should submit to the competent authority or which should be adopted.

 

1.1. EXPLANATION OF THE EXISTING LEGAL SOLUTIONS OF THE AUTHORS OF THE AMENDMENTS TO THE LAW ON COPYRIGHT AND RELATED RIGHTS FROM 2019

In the Draft Law on Amendments to the Law on Copyright and Related Rights[17], its authors stated in the explanation certain reasons for enacting the Law, as well as the explanations of legal solutions, some of which we will present below.

One of the goals of the amendments to the Law on Copyright and Related Rights from 2019 was to establish a more efficient, or improve the existing system of collective management of copyright and related rights, according to the standards set by relevant international enactments regulating the subject matter, but also according to EU standards.

Furthermore, one of the most important amendments to the Law refers to Article 127, paragraph 10 of the previous Law, which provided for the single remuneration for public communication of interpretations and phonograms to be charged together with the author’s remuneration for public communication of musical works. Also, Article 156, paragraphs 5 and 6 determined the manner of collecting that single remuneration. During the process of amending the Law, these provisions of the Law were amended because they were not in accordance with the provisions of the Berne Convention for the Protection of Literary and Artistic Works[18] (hereinafter: the Berne Convention) and the TRIPS Agreement[19] adopted by the World Trade Organization. Namely, by prescribing the obligation to collect a single remuneration, the author’s exclusive right to public communication of his/her work is encroached upon, but also the right of phonogram producers and interpreters to remuneration for public communication of their phonograms, or interpretations. The encroachment on the rights of these persons is reflected in the fact that they cannot independently deliver the invoice to the Users, which would lead to the fact that if the Organization representing the rights of music authors does not function for any reason, or does not collect remuneration, neither the phonogram producer nor the performer could collect a remuneration for the use of the subject matter of protection. Such a solution was unacceptable, taking into account that the right of phonogram producers and the right of performers are separate rights in relation to copyright, and their exercise cannot be conditioned by the exercise of the copyright. Also, such a provision could ultimately lead to the monopoly position of the Organization in terms of collecting remuneration for public communication of musical works, interpretations and phonograms, which is absolutely unacceptable and contrary to the acquis communautaire. In connection with the aforementioned amendment, the provisions of Article 156, paragraphs 5 and 6, referring to the uniform manner of collecting the remuneration for public communication of musical works, phonograms and interpretations, as well as to the allocation of the remuneration thus collected, in the way that 50% of the total remuneration, after deducting the costs, went to the Organization representing the authors of musical works, while the other half of that revenue was distributed to the Organizations representing performers and phonogram producers, were deleted.  These provisions were deleted for several reasons, primarily because they are not in accordance with Article 8, paragraph 2 of EU Directive 2006/115[20] regulating a single collection and allocation of remuneration for public communication of phonograms and interpretations, without mentioning the authors. By interpreting that Article, it is concluded that the remuneration for public communication of musical copyright works must be charged independently. Another reason for deleting these provisions is their non-compliance  with Article 3, paragraph 1 of the EU Directive 2001/29[21] which determines the exclusive right of the author to independently and freely, through negotiations with the User, agree on the amount of remuneration for public communication of his/her work, and that right must not be limited to fair remuneration, as regulated by law. Finally, the provisions in question were not harmonized with the Berne Convention either, which stipulates that states may regulate the issue of remuneration for public communication of copyrighted works, but only in case of impossibility to conclude an agreement between the author and the User.

Another important amendment to the Law relates to Article 162, paragraph 1, item 3 of the Law, which, after the amendments, enables the competent authority to revoke the Organization’s operating license in cases when the Organization “gravely or repeatedly violates the provisions of this Law, the provisions of its statute and the distribution plan.” Namely, before the amendment of the Law, the competent authority was authorized to decide on revoking the Organization’s license, among other things, if it finds that it “gravely and repeatedly violates the provisions of this law”. Therefore, there was a dilemma whether the repeated violation of the Law must at the same time refer to a grave violation. The new definition clarifies the intention of the legislator to revoke the license of the Organization in case it gravely violates the law, but also when it repeatedly violates the law, regardless of the severity of that violation. Also, in addition to the provisions of the LCRR, the Organization must now strictly comply with its statute and distribution plan, under the threat of revoking the license.

Further, Article 167 of the Law, regulating the distribution plan, as a general act of the Organization, was amended and paragraph 2 was added. It stipulates that the provisions of the distribution plan must be “clear, unambiguous, applicable and formulated in such a way as to preclude any arbitrariness in the distribution of collected revenue”. This provision is extremely important, as the distribution plan is the legal basis for the payment of collected revenues, and as such must be clear and guarantee security to the members of the Organization in terms of providing information about the amount belonging to them, how remunerations are calculated, and how to exercise their rights if they consider that they have not received the due amount.

One of the most important things with regards to the collective management of copyright and related rights is the definition of the tariff. Prior to the adoption of the amendments to the Law, when determining the tariff, the tariffs of countries whose gross domestic product is approximately equal to the gross domestic product of the Republic of Serbia were taken into account. The problem in practice was the fact that certain countries, with a gross domestic product close to that in the Republic of Serbia, do not have some of the organizations for collective management of copyright or related rights that exist in the Republic of Serbia or that the tariffs of organizations in those countries are higher than the tariffs of the developed countries’ organizations with a significantly higher standard of living than the Republic of Serbia. The new provision of the Law refers to the comparison with the tariffs of the organizations in other European countries, to the extent determined by comparing the gross domestic product of the two countries.

 

1.2. STATEMENTS AND RECOMMENDATIONS FROM THE STRATEGY FOR THE DEVELOPMENT OF THE PUBLIC INFORMATION SYSTEM IN THE REPUBLIC OF SERBIA FOR THE PERIOD 2020-2025

On 30 January 2020, the Government of the Republic of Serbia adopted the Media Strategy[22], whose authors, among other things, pointed out the shortcomings of the current system and regulation related to the collective management of copyright and related rights in the Republic of Serbia, as well as a number of problems faced primarily by the media outlets in the Republic of Serbia.

Primarily, it was pointed out that the media, and partly the operators, often criticize the existing way of submitting data to the Organizations, which was determined by the Organizations themselves, citing the over-regulation of the prescribed obligation of the User, creating high additional costs. Regarding the above, especially the high unjustified costs, the Media Strategy stresses the need for strict compliance with the Decree of the Government of the Republic of Serbia[23], which refers to keeping electronic records of broadcast works, without prescribing significant engagement of resources or additional costs.

Furthermore, the authors of the Media Strategy criticize the process of negotiating the Organization’s tariff, pointing out that the Organizations abuse their monopoly position in negotiations with the Users, and that they do not show interest in the tariff developing as a result of compromise between the parties in the negotiations, which was intended by the legal provision prescribing negotiations. Such a conduct of the Organization in practice is particularly erroneous when taking into account that the Organizations aim exclusively at protecting the interests of the rightholders, and that the Organizations are of a non-profit character. As mentioned earlier, when determining the tariff, an Organization negotiates with representative associations of Users, and in this regard the Media Strategy authors point out that the Law did not clearly set criteria for determining unambiguously which Association of Users is a representative one, i.e. which could be considered a legitimate representative of a certain group of Users when negotiating with the Organization.

The Media Strategy also points out the objections of electronic media outlets as a type of user of copyright works, which refer to the insufficiently precisely defined way of determining the basis for the so-called minimum author’s tariff, which is currently set, on a basis determined independently by the Organizations, significantly higher than the basic tariff.

Finally, the Media Strategy authors proposed certain measures, with the aim of improving cooperation between the media outlets and Organizations, i.e. with the aim of general improvement of legislation. These measures include, but are not limited to, the following activities:

  • providing a more flexible model for submitting data on the use of copyright and related rights, which would be simpler and easier for users, without unnecessary generation of additional costs, and which would be harmonized with the Decree of the Government of the Republic of Serbia on the manner of keeping electronic records of broadcasting and rebroadcasting of copyright works;
  • specifying basic elements of the minimum tariff for the use of the subject matters of protection that will not be higher than the basic tariff;
  • modifying the system of collective negotiations about the tariff, in such a way that the interests of the Users and the holders of copyright or related rights are equally taken into account;
  • changing the position of the Organization, as well as enabling the free organization of holders of copyright and related rights.

 

It should also be noted that the Media Strategy indicates that the Organizations’ monopoly position violates equal market conditions, as it restricts the media outlets, as users of copyright and related rights, to negotiate tariffs with only one Organization. Also, the authors point out that in that way the rights of the holders of copyright and related rights are violated because they are prevented from associating in order to protect their interests.

 

 

2. RECOMMENDATIONS TO IMPROVE  COLLECTIVE MANAGEMENT  OF COPYRIGHT AND THE RELATED RIGHTS

Bearing in mind that the Law on Copyright and Related Rights has not yet been fully harmonized with the European legal standards and solutions in the domain of the collective management, legal provisions entered into force via the Amended Law of 2019 are solely transitory solution towards the implementation of the EU Directive no. 2014/26 (hereinafter referred to as: Directive)[1]. This part of the text will focus on solutions stemming from the Directive and solutions from the Copyright and Related Rights Act of the Republic of Croatia[2] (hereinafter referred to as:  the Republic of Croatia Act), as an EU member state from the neighborhood, given that those solutions might in different fashion improve Serbian legislation focusing on the issue of the collective management of copyright and related rights, in case accepted and adapted.

The major change the Directive prescribes, which among other things relates to problems caused by the monopoly position of the Organizations, is establishment of the so called independent managerial entities used as a vehicle for the holders of power to manage their rights (hereinafter referred to as:  Independent Entities).  Namely, in line with the Directive, Independent Entities act as commercially oriented communities, unlike non-profit organization nowadays present, such as SOKOJ[3], and also Independent Entities are not owned by, nor under the control of holders of copyright and related rights, which further enables their independent work when providing services they charge for. By the introduction of Independent Entities, Organizations would no longer have monopoly position over the collective management of rights concerning a specific type of rights over a specific type of subject matters of copyright or related rights.  Also, Independent Entities would ensure through their operations a high level of transparency in terms of collection and distribution of funds, and thereby a low level of costs of their operation in relation to the operation of the Organizations.

By the Republic of Croatia Act, an Independent Entity that intends to perform the activity of collective management of rights is obliged to inform the State Intellectual Property Office (Intellectual Property Office in the Republic of Serbia, hereinafter: the Office) thereof, and provide the Office with data on the type of rights and the category of rightholders, as well as on the number of rightholders for which it intends to perform collective management[4]. The Independent Entity must also notify the Office of any changes to the information it has stated when submitting the request[5]. However, the introduction of the possibility of managing rights through Independent Entities is not enough, it is also necessary to provide supervision over their work. The Republic of Croatia Act has given the authority to the authorised inspectors of the Office[6] to conduct supervision over the work of Independent Entities, distinguishing between planned supervision conducted on an annual basis and unplanned supervision carried out at the proposal of the interested party[7]. During the inspection control, the authorized inspector of the Office has the right to request access to the business records and other documentation of the Independent Entity, and in case s/he finds any deficiencies or irregularities, s/he will order their removal by a decision, and in case of non-compliance with the decision, s/he will prohibit the work of the Independent Entity by a new decision[8]. The stated decisions of the authorized inspector of the Office cannot be appealed, but an administrative dispute may be initiated. Therefore, if the Republic of Serbia would enable the existence of Independent Entities, with its legal solutions, their work in the field of collective management of copyright and related rights could contribute to the general reduction of the costs of collective management of rights. In addition, Organizations would no longer have their current monopoly position, and thereby would be motivated to optimize their operations in order to compete in the market.

Furthermore, as regards the organization of the operations of the Organizations, the introductory provisions of the Directive, under number 22 state that Organisations should act in the best collective interests of the rightholders they represent and should not impose additional obligations on rightholders, enabling their participation in the decision-making processes of the Organization. Organizations that have different categories of rightholders among their membership (e.g. producers and performers) should ensure equal representation of these categories in decision-making bodies. Likewise, the Directive stipulates that the Organization should under its Statute or any other publicly published enactment set objective and non-discriminatory criteria for admitting rightholders, i.e. persons representing rightholders in its membership, and in case of rejection it has to explain to that person the reasons for the rejection[9]. In order for the work of the Organization to be efficient, persons with management functions must not be in a conflict of interest, and the obligation of EU member states to monitor the likely possibility of a conflict of interest is prescribed by the Directive[10]. The introductory provisions of the Directive, under number 25, stipulate that it would be efficient for persons such as directors or members of the supervisory board to declare that there is no conflict of interest immediately before taking office, and once a year thereafter. Also, Organizations should be able to make these statements publicly or to submit them to government agencies. In case of introduction of such a mechanism in our legislation, it would be most effective to make the supervisory board of the Organization competent for control and for sanctioning the existence of conflicts of interest. 

Furthermore, the Republic of Croatia Act indicates that the Organization may entrust a natural or legal person to perform administrative, technical or supporting works under its supervision, all in order to reduce costs and optimize the functioning of the Organization[11]. Therefore, by harmonizing the regulation with the Directive or taking over the mentioned legal solutions from the Republic of Croatia Act, the Republic of Serbia would ensure greater efficiency and transparency in the work of the Organizations, equal representation of all categories of members in the bodies of the Organization, and thereby the provisions on conflict of interest would provide additional protection to rightholders, Users and the Organizations respectively.

Although the legislator, as explained earlier in the text, amended the provisions of the Law related to the tariff and adjusted them to European standards, one of the most problematic provisions in the LCRR still refers to negotiations regarding the tariff and the adoption of the tariff. As mentioned earlier, in case of impossibility to find a compromise, the tariff is determined by the Organization, i.e. its administrative board and it is submitted to the competent authority for approval. The Republic of Croatia Act refers primarily to the execution of a contract between the Organization and the User, i.e. between the Organization and the Association of Users, and in case of impossibility to execute a contract, the tariff is determined by the Organization, but with a number of restrictions. First of all, it is necessary to submit the tariff to the Association of Users, which has a period of 30 days to provide comments, otherwise it would be deemed they accepted the proposed tariff. In the event that there are objections by the Association, the two parties may negotiate an arbitration agreement on the basis of which the tariff will be determined in the arbitration proceedings. In case the two parties do not reach an agreement on the arbitration proceedings, the Republic of Croatia Act instructs the Organization to ask the expert body for an opinion on the subject matter of disagreement (the expert body consists of 5 persons from among prominent experts in the subject matter, appointed by the Ministry upon the proposal of the Director of the Office)[12]. The tariff-setting procedure set out above prevents the Organization from conducting negotiations without the intention of accepting compromises and thus from abusing its dominant position vis-à-vis Users. The introduction of this or a similar procedure would beyond any doubt improve the position of the Users when negotiating the setting of tariffs, and that was one of the objections of the authors of the Media Strategy. In order to achieve greater objectivity of the expert body and reduce control over it to the minimum, clear criteria for the selection of persons should be prescribed in advance by law, and the procedure for its formation should be transparent and subject to public discussion.

Furthermore, the deadline for payment of collected funds provided for by the LCRR is 31 December of the current year for the amounts collected for the previous year, while the Directive and the Republic of Croatia Act indicate a shorter period of maximum 9 months from the end of the year for which the amounts are paid[13]. According to the solution from the Republic of Croatia Act, in case the Organization cannot pay the funds because the rightholder is unknown, specific amounts are kept in separate accounts of the Organization, while the Organization itself must take all necessary measures to find those rightholders[14]. In the event that after the expiration of the period of 3 years the stated amounts are not distributed to the rightholders, these amounts are deemed non-distributable, and their further use will be decided upon by the General Assembly of the Organization[15]. Also, it is necessary to legally establish certain rules concerning revenue management by the Organization. Namely, the Organization should have a legal obligation to keep its own assets separately in its business registers, on the one hand, and revenues from rights, i.e. revenues generated by investing revenues stemming from rights on the other hand, following the example of the Republic of Croatia Act[16]. Also, according to the Republic of Croatia Act, the Organization cannot use revenues stemming from rights, including revenues acquired by investing revenues from rights, for purposes other than distribution to rightholders, except to cover the costs of collective management[17]. All the aforementioned solutions, as well as deadlines, are prescribed in the interest of rightholders, which is in line with the goal for which the Organizations deal with collective management in the first place, which is to protect the interests of holders of copyright or related rights.

As per the supervision over the work of the Organization, although the LCRR prescribes the possibility and specifics of supervision by the competent authority, it should be regulated in more detail in order to be harmonized with the Directive. Following the instructions from the Directive and the Republic of Croatia Act, planned supervision and unplanned supervision upon the reasoned proposal of the interested party should be separated[18]. Also, what constitutes an important difference compared to the LCRR is a more precise definition of the possibility of adopting appropriate measures by a person conducting the supervision, primarily the decision to rectify identified deficiencies, and later possibly the decision to revoke the license to conduct the activities of collective management of copyright and related rights[19].

In order to harmonize regulations with the Directive, rightholders should be legally allowed to object to the Organization, for all aspects of the activities performed by the Organization on their behalf, and in particular in terms of membership criteria, powers of attorney issued to the Organization and their withdrawal, and distribution of the amounts collected[20]. In addition, the Directive refers to the possibility of alternative dispute resolution among the Organization, its members, rightholders or the Users[21], in addition to the possibility of resolving the dispute before the court in civil proceedings. By providing a procedure to file an objection to the Organization, and enabling an efficient alternative way of dispute resolution, the Republic of Serbia would protect its judiciary to a great extent, which is currently overwhelmed by various proceedings concerning the determination of holders of copyright and related rights. Various internal enactments of the Organization also contributed to that, such as the Rule-book on registration of phonograms and resolution of disputed and duplicated phonograms of the Organization of Phonogram Producers of Serbia – OFPS, which stipulates that when registering phonograms only contracts, invoices and the like are accepted as proof that a certain person is the rightholder of phonogram producers, while previously it was allowed for persons to submit various types of evidence, including statements of other persons[22]. The current situation is not sustainable, considering that a large number of rightholders have been prevented from exercising their rights.

Furthermore, the Organizations should be given the opportunity to entrust to other Organizations certain works of collective management of rights on the basis of a written contract, while the performance of those works may be in the name and for the account of the Organization that entrusted performance of those works or in its own name, but for the account of that Organization[23]. Also, rightholders who have entrusted the Organization to collectively manage their rights should be able to issue licenses to various persons for non-commercial use of those rights, in which case the Organization should make public the clear criteria for issuing such licenses[24]. By transposing these or including similar provisions into the Law, the efficiency of the Organization would be significantly increased. However, the weak points of allowing rightholders to issue licenses for non-commercial use of copyright works or subject matter of protection, even after they have ceded their rights to the Organization for the purpose of collective management, could be the possible legal uncertainty that this could cause, that is, the confusion in which potential users could find themselves in terms of the persons to whom they should apply for a license to use.

Finally, current development and advancement of technology can be used to improve the collective management of rights. Namely, there are already software that perform or at least facilitate the performance of collective management of rights by Organizations (e.g. WIPOCOS software). The states should encourage organizations, i.e. help and enable them to obtain software solutions that will enable a higher level of transparency, cost reduction and, in general, more efficient work of the Organization, all with the aim of having better protection of the interests of holders of copyright and related rights. However, it is necessary to point out that when choosing this type of software, Organizations must be very careful, since the software will be entrusted with the protection of the interests of other persons, i.e. rightholders.

 

 

[1] EU Directive 2014/26/EU of the European Parliament and Council.

[2] Copyright and Related Rights Act of the Republic of Croatia (NN 167/03, 79/07, 80/11, 125/11, 141/13, 127/14, 62/17, 96/18)

[3] Organization of music authors of Serbia

[4] Suppra Note 41, Article 171.b, paragraph 1

[5] Ibid. 171.b, paragraph 2

[6] Ibid. 171.c, paragraph 1

[7] Ibid. 171.c, paragraph 3

[8] Ibid. 171.c, paragraph 4 -6

[9] Suppra Note 40, Chapter 2, Article 6, paragraph 2

[10] Ibid, Chapter 2, Article 10, paragraph 2

[11] Suppra Note 41, Article 158, paragraph 3

[12] Ibid, Article 162

[13] Suppra Note 40, Chapter 2, Article 13 and Ibid 167, paragraph 4

[14] Suppra Note 41, Article 167, paragraphs 5 and 6

[15] Ibid. 167, paragraphs 7 and 8

[16] Ibid. 165.b, paragraph 2

[17] Ibid. 165.b, paragraph 3

[18] Ibid. 170, paragraph 2

[19] Ibid. 170, Articles 3-5

[20] Suppra Note 40, Chapter 4, Article 33 and Ibid. 168.p

[21] Suppra Note 40, Chapter 4, Article 34

[22] Rulebook on registration of phonograms and resolution of disputed and duplicated phonograms, Article 13.

[23] Suppra Note 41, Article 158, paragraph 2

[24] Ibid. 159, paragraph 2

 

 

[1]Law on Copyright and Related Rights (“Official Gazette of the RS”, no. 104/2009, 99/2011, 119/2012, 29/2016 – AC decision and 66/2019)

[2] Ibid, 152

[3] Ibid. 157, para. 3

[4] Ibid, 158. and 159.

[5] Ibid, 153, paras. 2 and 3

[6] Ibid, 157, para. 2

[7] Ibid, 150.

[8] Ibid, 164. and 165.

[9] Ibid, 173.

[10] Ibid, 176.

[11] Ibid, 180, para. 4

[12] Ibid, 180, para. 1

[13] Ibid, 187, para. 1 -3

[14] Ibid, 191.

[15] Ibid, 188, para. 2

[16] Ibid, 189

[17]Draft Law on Amendments to the Law on Copyright and Related Rights (http://www.parlament.gov.rs/upload/archive/files/lat/pdf/predlozi_zakona/2019/225-19%20-%20LAT.pdf)

[18]Berne Convention for the Protection of Literary and Artistic Works (9 September 1886, amended in Paris on 4 May 1896, amended in Berlin on 13 November 1903, amended in Bern on 20 March 1914, amended in Rome on 2 June 1928, in Brussels on 26 June 1948, in Stockholm on 14 July 1967 and in Paris on 24 July 1971)

[19]Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)

[20]Directive 2006/115/EU of the European Parliament and Council

[21]Directive 2001/29/EU of the European Parliament and Council

[22] Strategy for the Development of the Public Information System in the Republic of Serbia for the period 2020-2025

[23]Decree on the manner of keeping electronic records of broadcasting and rebroadcasting of copyright works (“Official Gazette of the RS”, No. 108/204)