Individualism and Collectiveness in Intellectual Property Law
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Individualism and Collectiveness in Intellectual Property Law

Edited by Jan Rosén

Individualism and Collectiveness in Intellectual Property Law embraces fundamental, eternal and yet very contemporary elements in IP law dealt with in all parts of the world. There are certain classic values embedded in the protection of human effort and the creativeness of individuals. This book examines the relationship of those values to the questions inherent both in individual creativeness in a collective setting, and in the tendency to build national, regional or global monopolies based on IP rights. The respect for original ownership, the occasional need for collective management of IP rights, the idiosyncrasies of co-ownership of rights and the ever present tension to be found in encounters between exploitation of IP rights and competition law are extensively exposed in this book.
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Chapter 5: Collectivism and its Role in the Frame of Individual Contracts

Silke von Lewinski


Silke von Lewinski* 1 1. INTRODUCTION: PRESENTATION OF THE PROBLEM This short panel contribution focuses on the question of whether, and if so, how, collectivism may be a means to strengthen the typically weak bargaining position of authors or performers in individual licensing contracts with exploitation businesses, such as publishers, producers, or broadcasting organizations, in order to enable them to receive an equitable remuneration for the exploitation of their rights. The problem is a longstanding one that is present worldwide, and it is widely perceived as not having found, in most cases, an appropriate solution. At the outset, the respective interests of both contractual parties are the same: both have a strong interest in being able to control the exploitation of the work or performance at stake, not least in order to best benefit therefrom. Since, however, the marketing is usually not undertaken by the author or performer but by a publisher or other exploitation company, authors and performers regularly assign or license their exclusive rights to such companies in order to enable such marketing. From this moment on, the authors’ and performers’ interests are focused on receiving an equitable remuneration for the exploitation of the work or performance. Given their typically weak bargaining position as compared to exploitation companies, their chances to receive such equitable remuneration are often somewhat limited in practice. In order to remedy this situation in favour of authors and performers, different legislative models have been developed in different countries. * Max Planck Institute for Intellectual Property...

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