Elgar Intellectual Property and Global Development series
Edited by Nari Lee, Niklas Bruun and Mingde Li
Chapter 12: Collective rights management in China and Europe: between market and authority
The rapid pace of technological developments presents complexities for copyright law. The market for creative works and innovation is always undergoing changes. One result of concurrent changes in the dynamics of interdependent IP institutions is the emergences of new practices and entities that function within the traditional institutional boundaries, as well as in between. Both in Europe and in China, there are more IP rights covering innovations and creations that are privately held by so many different actors, with heterogeneous interests. To manage complex layers of rights and fragmented titles, various types of intermediaries are emerging. This chapter argues that collective management organisations (CMOs) seem to be one such organization that operates between the market and authorities in China. Commencing with a discussion of a recent Chinese dispute concerning the scope of collective administration agreements as an example, we compare how the relationship between CMOs and their members are regulated in China and in the EU. This chapter argues that the current Chinese CMO system seems to be failing in achieving the recognition necessary by the beneficiaries of such a system. The dispute also highlights that the successful implementation of a CMO requires that the perception held by all parties of CMOs are reconciled. We argue that, as CMOs provide a governance mechanism for exercising IP rights, it is important whether there is a vibrant market for copyright licences or not because this is a crucial consideration that enables a CMO to be successful. Without a healthy and functioning local market for content, a CMOs’ role is reduced to that of a collecting agency for a handful of foreign right-holders. We conclude that any proposal for future reform should consider that a successful and functional market with widely acceptable licensing practices is a crucial prerequisite for extending any operation of CMOs, such as extended collective licensing.
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