Protection And Management of Copyright and Related Rights in Thailand:Current Practice And Challenges

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Presented in National Seminar: Protection And Management of Copyright And Related Rights; November 5-6, 2012 …

Presented in National Seminar: Protection And Management of Copyright And Related Rights; November 5-6, 2012

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  • 1. Topic 5 Protection and Management of Gopyright and Related Rights in Thailand: Current Practice and Challenges By Dr. Supatchara Distabanjong
  • 2. Protection and Management of Copyright and Related Rights in Thailand: Current Practice and Challenges Dr. Supatchara DISTABANJONG ln considering the practice and challenges of copyright and related rights protection and management in Thailand, this paper is emphasized on music industry for two reasons. Firstly, it is suggested that music industry is the most common and active in the field of copyright and related rights management. Secondly, the situation of music copyright collective management in Thailand is, to a certain extent, unique and worth presenting as a case study. 1. Copyright Collective Management Management of the worldwide music industry has achieved a highly refined degree of commercialization and now ranks as a significant global business. Changes to the industry have occurred at different rates in different countries, and it is only in recent decades that Thailand has begun to catch up with the rest of the world. ln all environments, a keystone to the management of the music industry is the emergence of copyright collective management regimes which aim to balance the financial interests and entitlement to royalties of songwriters, sound recording companies and music users when the usage involves multiple creators, owners and users. According to the World lntellectual Property Organization, copyright collective management is defined as a system of copyright administration which involves three parties: the collective management organization (or CMO), the copyright owners, and the copyright work users. Collective management refers to granting an authorization for the use of copyright works by a CMO on behalf of several rights owners, meaning that a group of copyright owners pool together some or all of their rights so that users are conveniently able to obtain licenses to use such pooled rights from one single source, the CMO. Thus, the CMO acts as a facilitator on behalf of copyright owners regarding contracts forthe use of their works. The basic functions which to facilitate include: administering the owners' rights, monitoring use of the works, negotiating and licensing appropriate fees and conditibns, distributing the fees among the owners of rights, and taking legal action against infringers. The contradiction inherent in copyright regulation is the need to protect authors'rights and at the same time make their works universally available. While the law provides authors bundles of exclusive rights to exclude others from exploiting their works, copyright mechanisms need to ensure society's accessibility to the copyrighted material given its value'to culture and knowledge. Copyright o o O o o o a a
  • 3. regimes need to strike a balance between the incentives provided to creators and the benefit to society as a whole (Drahos, L996; Bainbridge,1999; and Zimmerman, 1999). The exclusive rights of authors are often fragmented and hence can be managed separately. These rights extend from reproduction in different formats to preventing unauthorised adaptation and unauthorised public performance, broadcasting, and communicating to the public of authors' works. lndividual management of rights is preferred whenever possible; however, this is not always possible particularly in cases that involve multiple works, users and creators, a situation in which collective management can be best applied (Gervais, 2006 and Sinacore-Guinn, 1993). What is Collective Management? Collective Management pool right r+> .t $ royalties Collective Management Organ isation (cMo) Roles of ccllective management: - Facilitate copyright industry effectively - finable creatcrs to exercise rights in a fair efficient & accesslble manner Figure L: Collective Management Concept and Roles summarised from (Gervais, 2006 and Ficsor,2002) Ficsor (2002) and Gervais (2006) have outlined guidelines in relation to the roles and functions of collective management as detailed in Figure 1. ln the collective management context, creators or rights owners pool their rights to a central body called a collective management organisation (CMO) to administer on their behalves. Therefore, the CMO serves as a link between multiple rights owners and rights users. As not-for-profit organisations, CMOs facilitate the ability of creators to exercise their rights in a fair, efficient and accessible way by monitoring the use, negotiation, collection and distribution of royalties to members as well as taking legal action if required (Fcisor, 2002; Sinacore- Guinn, 1993; and WIPO 1990). Gervais (2006) has provided a theoretical framework to assist in understanding this challenge and the changing roles of collective management regimes as shown in Figure 2. The difficult characteristics of copyright are its apparent paradox and fragmentation of rights.
  • 4. Tthe paradox of copyright is that while the law provides rights owners bundles of exclusive rights to exclude others from exploitation, at the same time, the copyright system need to ensure society's accessibility to the copyright works. Secondly, the fragmentation of copyright, which occurs at many different levels, creates difficulty in collective management. Traditionally, fragmentation includes several categories of economic rights (such as reproduction, adaptation, public performance, and transmission rights) each of which can be managed separately. Other forms of fragmentation can occur within market structures and licensing practices. The production of "music or song" can consist of more than one copyrighted work. Besides rights relating to a specific musical work, a piece of music or song can involve rights relating to sound recording and the performers. Cinimatographic and video production likewise may give rise to multiple copyright issues. Thus CMOs must develop their operations around these fragments (Gervais, 2006). Challenges in Copvrisht 'Apparent Paradox .Fragrnentatio n o f rights .Digital & Internet Roles of Collective Management .Facilitate copyright ind ustry effectively .Enable creators to exercise rights in a fair effic ient & accessible manner Figure 2. : Theoretical framework to lJnderstand Copyright Collectives Source: Summarized from Gervais, 2006 2. Situation of Collective Management in Thailand's Music lndustry CMOs are created within and reflect the political, social, cultural, and economic frameworks of many different countries. Therefore, to implement a copyright collective management regime, policy- makers must have a detailed understanding of both international and local environments since a regime that works well for one country may not fully work efficiently for another. Clearly, developing countries will be able to facilitate CMO implementation by drawing on the experiences of other countries' regimes after taking into consideration its own local environment. This process is of great relevance in the context of Thailand. ln common with many other developing countries, Thailand had to go through a process of learning to implement its own copyright collective management regime. Figure 3 illustrates an overview of music royalty collection in Thailand and Table 1 explains the professional climate, issues, and
  • 5. conflicts relative to stakeholders within collective management in Thailand. As discussed, Music Copyright (Thailand) Ltd., or MCT, the first collective management organisation in Thailand, was founded in 1,994 by a group of Thai songwriters with support from CISAC1 to be a CMO for songwriters and music publishers in Thailand. Due to its reciprocal representative agreements with other CISAC member societies worldwide, MCT's repertoire comprises music compositions not only of Thai origin, but also most international musical works performed in Thailand. However, MCT covers only about 1,5% of Thai works because not many Thai songwriters have sought membership, At the outset, some songwriters were sceptical of MCT's operations and reluctant to become members, and many Thai songwriters who were employed by Thai recording companies had no control over their works and hence saw no benefit in joining MCT. Lastly, some songwriters, including many who had signed up, were not satisfied with MCT's performance, especially its slow progress in collecting royalties. Phonorights, as a member of lFP12, is a CMO for international sound recording works in Thailand. However, Phonorights' repertoire does not cover the works of Thai master recordings. Thai sound recording companies, as owners of master sound recording works, have not become members of Phonorights. ln principle, Thai recording companies, as owners of musical works, should become members of MCT as music publishers. However, recording companies refuse to become members of MCT because they aim to make profits on collecting their own public performance royalties on all copyrighted music works in their repertoires. It can be seen that, on the one hand, the collective management regime of Thailand follows international practices because MCT is a CISAC member and Phonorights is an lFPl member. Each organisation can offer public performance licenses for most international repertoires of musical works or sound recording works used in Thailand through the network of international CMOs. On the other hand, the practices and attitudes of the local stakeholders ln the music business have not yet been internationalised. Because the music industry in Thailand is not unified and because of the competing and, at times, conflicting interests of the interested parties, the creation of a regime to regulate the collection of royalties in Thailand has faced many difficulties. Although the Ministry of Commerce announced a ruling in 2002 that copyright royalty collection was to be under the control of the Central Commission for Price Control of Goods and Services, this short term measure proved insufficient. By March 2010, twenty-four companies were operating in Thailand to collect public performance royalties in music (DlP, 2010). ' CISAC: Intemational Confederation of Societies of Authors and Cornposers was founded in Paris, France in 1926. It is a non-govemmental, non-profit organization and is the leading worldwide network of authors' societies: 23 I collective management organisations in 121 countries protecting the interests of over 3 nrillion creators and rights holders. It promotes the interests ofcreators and provide the highest business standards to protect their rights. ' IFPI, Inte.nutional Federation of the Phonographic Industry represents the recording industry worldwide, with a membership comprising some 1400 record companies in 66 countries and affiliated industry associations in 45 countries. IFPI's mission is to promote the value ofrecorded music, safeguard the rights ofrecord producers and expand the comrnercial uses of recorded music in all markets where its members operate.
  • 6. Table L: Climates and lssues For Each Stakeholder in Music Royalty Collecting Stakeholders Climates/lssues 1. Thai Songwriters Diverse; little solidarity Not many join MCT to license public performance on their behalves No music publishers to represent songwriters' benefits Most are hired or employed by Thai recording companies, resulting in: - No control over their compositions and lyrics - Dependence on recording companies, thus may not want to be in conflict with them - Some receive one-time lump sum payments for their compositions andlor lyrics - Some receive advance payments, with or without royalty shares afterwa rd s A few sign proxies to agents in order to collect royalties CMOs 1 MCT 2.2 Phonorights Remark: MCT Two CMOs were set up, one for songwriters and one for sound recording companies with the support from respective international institutions - A songwriters CMO in Thailand which covers most of international music compositions but covers only 15 % of active Thai music compositions - Revenues grow slowly over the years - Some members are not fully satisfied with the revenue and/or sceptical of the royalty distribution but still appreciate the not-for-profit status and up-to- international standard of MCT - Cannot persuade Thai recording companies to become its members as music pu blishers - A sound recording companies CMO in Thailand which covers all international music master recordings - Cannot persuade Thai sound recordings to become members and Phonorights formed o joint venture of licensing operation in 2003 3. Thai sound recording companies - Very powerful financially and politically. - Own both Thai music compositions (or musical works) and master recording (or sound recording works) - Do not want to lose control over their right so set up their own collecting companies - Collecting companies collect public performance rights for their benefit - Small recording companies hire agents to collect royalties - Business practices are not fully internationalized 4. Music users Face the difficulty of more than 20 collecting companies demanding royalties Face the difficulty of work duplication where one piece of music is claimed by more than one company/agent, so users don't know which companies/agents to pay Some companies or agents abuse the rights by demanding royalties in inappropriate manners such as by threats 5. Ministry of Commerce - The measures for copyright royalty collection under.control of the Central Commission for Price Control Goods and Services are not sufficient because the Commission can control only price but has no authority to control the operations of collecting companies. - The international principle of copyright collective management is not fully achieved.
  • 7. 3. Weakness of Collective Management in Thailand The findings of this study indicate that several weaknesses exist in th.e implementation of collectlve management in Thailand. ln summary, these weaknesses can be grouped into three categories: governmental, industry practice, and individual. The results of this research indicate that the Thai Government has failed from the outset to establish concrete and clear policy guidelines in relation to a collective management regime. MCT did not receive enough support from the government to put in place the necessary mechanisms to enforce and establish an effective royalty collection regime, Moreover, there was no provision for collective management under the Thai Copyright Act due to a lack of understanding at the level of those in government in charge of policy formulation and implementation. Even when there were profit- making agencies collecting royalties, the Thai Government was indecisive about the extent to which it should intervene. The research also indicates that that there were several factors related to the music industry obstructing the collective management regime in Thailand. Firstly, since a music publisher business did not exist in the Thai music industry, there was no music publisher entity to manage and negotiate business transactions for Thai songwriters. Thus, Thai songwriters had to depend heavily on Thai recording companies. This often meant they had to transfer their creative works to the recording companies in order for the works to be marketed. As a result, Thai recording companies owned two types of copyright works, both musical and sound recording works. Moreover, Thai recording companies were very powerful and decided to collect royalties for their own benefit. ln other words, Thailand's music industry has not yet been internationalised. Secondly, under Thai law, MCT had to be established as a limited company with issued share capital. Such an entity is normally a profit seeking company, and MCT did not fit this standard corporate model. This arrangement caused people to believe that MCT was out to make profit for itself and was not an altruistic, non-profit making organisation as it claimed. Thirdly, MCT's Thai repertoire covered relatively few works. lt covered about 10-15% of the active Thai musical works, while Thai music accounted for about 80-85% of the total market. MCT's strength turned on its repertoire of international music; th'us, its revenues derived mainly from royalties from international compositions performed in Thailand. The majority of these royalties went to songwriters CMOs in other countries. As a result, the full benefits and contribution of the collective management organization to Thai songwriters and the general public have never been fully achieved. Finally, the weakness at the individual level mainly involved a lack of solidarity among songwriters and an absence of knowledge of copyright and the collective management regime. Music users had never been asked in the pastto pay music license fees, nor did they have confidence in the collective management organization model. Music users did not have an accepting attitude towards paying
  • 8. royalties since they did not recognise the benefits that the regime could offer in terms of the legal usage of music and rewards to songwriters for their creation of music compositions' 4. Model for Collective Management in Thailand lnternational experts revealed their opinions on the attributes of a successful collective management organisation, characterised by three elements: - Representing almost all international and local repertoires of musical works, - collecting reasonable royalties at reasonable costs, . - Distributing royalties to members within the first two years of licensing activities. Considering the three success elements together with Thailand's problem of multiple collecting agencies, it was agreed by all Thai respondents that the collective management in Thailand should conform to international practices in order to solve MCT's problems. One important standard of collective management organisations is that they should be membership based and not-for-profit. Thus, one possible way to reduce the number of collecting agencies in Thailand would be to enact laws or regulations to legally recognise the CMOs status as not-for-profit-organisation' Then, the government policy should aim to ensure that songwriters and recording companies join CMOs. putting all of these points of view together led to the formulation of the model in Figure 4 as an acceptable structure. ln the model there are two types of organizations: an organization for songwriters and music publishers which must be CISAC members and an organization for recording companies which must be an lFPl member. However, the two organizations need to worktogether, eit1rer via regulation or by consensus, so that only one amount of royalty is levied and paid by each music user. Royalties paid by users should then be divided between the two organizations on the basis of an agreed formula after deduction of agreed costs of collection. Then, each organization would distribute royalties to those entitled. t t roYalties Songwriters & Music Publishers * Sound recording rcyalties @@-@.@ v,_ s - - r.*.*... 4-----*&: f,:=z* @ @ Recording companies Figure 4: Model for Collective Management ln Relation To Public Performance Rights of Music in Thailand Songwriters' organization Music Users Recordings' organization n musical roya lties Join License n royalty piid
  • 9. ln order to achieve the ultimate scheme of music collective management presented in Figuer 4, the recommended strategies outlined in Table 2 could be utilised. 5. Recommendations and lmplications for Thailand As discussed, the public performance rights in music need to be managed collectively because of the involvement of multiple creators, owners, and users (Fiscor, 2002; Sinacore-Guinn, 1993; and WIPO 1990). Whether or not a country needs a provision of collective management in its law depends on the local environment of that country. ln the case of Thailand, there are several reasons that support the need for laws and regulations in relation to copyright collective management. Firstly, Thai recording companies, as owners of musical works, perceive collecting public performance royalties as a tool for profit making, which contrasts negatively with international practises. As a result, multiple collecting companies under the umbrellas of recording companies have emerged. Secondly, the unfairness of the existing system is perCeived not only by music users but also by songwriters. Besides the fact that music users can not cope with all royalties demanded by the collecting companies, they are threatened by some companies, causing abuses in copyrights royalty collection practices. Songwriters feel unfairly treated because they receive little or no share of their compositions' royalties collected by recording companies. Fourthly, DIP has no direct authority provided by the law and regulations to intervene in copyright royalty collecting when it becomes disadvantageous to society. Lastly, there is no type of legal entity underThailand's Civil and Commercial Code that is suitable for a not-for-profit and membership based entity to operate a copyright collective management organisation. Thus, it is recommended that a special law to manage and regulate collective management be enacted so that the government manages the regime and irons out the existing difficulties. Moreover, it can be inferred from the interview results that Thai recording companies, who own copyright and neighbouring rights relating to most music in Thailand, do not want to lose control over their rights. Therefore, the strategies to transform the situation of multiple profit-making collecting companies to not-for-profit membership based CMOs should consider the aspects of licensing the public performance rights and distributing the royalties to respective creators and owners of the works at the same time. Table 2 outlines suggested strategies in relation to rights licensing and royalties distribution as well as the implement of strategies. 5. Recommended Transformation Process A suggested process for transformation of the current situation is shown in Figure 5 with the strategic policies to do so presented in Table 2. The definition of the transformational system can be defined as: "A system managed by the Department of lntellectual Property (DlP) to reduce the number of copyright collecting companies by transforming them into not-for-profit organisations conforming to the international standard practices of copyright collective management organisations in music so that Thai songwriters receive. royalties with respect to their works both locally and internationally."
  • 10. Table 2: Strategic Policy towards Managing Rights Licensing and Royalties Distribution 1. Policy Regarding Licensing Purposes How to do 1.1 Reducing the number of cu rrent collecting companies Establishing legislation concerning a not-for-profit mem bership based col lective ma nagement organisation 1.2 Establishing a one-stop licensing operation - Managing support policies to: o Promote inspiring concepts of collective ma nagement; r Promote exporting and interchanging of the music and its related entertainment products and services. 2. Policy Regarding Distributi( )n Purposes How to do 2.I Ensure transparency of the CMO's operation - Establishing legislation to ensure the royalties distribution process is one of the prerequisite duties of the CMO. 2.2 Ensuring conformity with international standard practices - Seeking assistance and support from neutral international institutions such as WIPO and CISAC; - Promoting export and interchange of the music and its related entertainment products and services across cou ntries. The key elements and the purposes of the system are presented in Table 3. The Ministry of Commerce (MOC), as the policy decision maker, shall be the owner of this transformation process giving full recognition to the benefit of music industry internationalisation. For the Department of lntellectual Property to implement collective management, three subsystems are recommended. They are: - Subsystem 1: Establishing legislation concerning copyright collective management. - Subsystem 2: Promoting inspiring concepts for a collective management organisation in Thailand. - Subsystem 3: Promoting exportation of music and entertainment products. 10
  • 11. Table 3: Key Elements and Purposes of the System 1,. Key Elements:- t.t Transformation: To transform the status of multiple copyright collecting companies into the international standard of not-for-profit copyright collective management in music. I.2 Worldview: lnternationalised music industry is desirable and proper copyright collective management is one important element of internationalisation. 1.3 Customers: Songwriters, sound recording companies and music users. I.4 Actors: Department of lntellectual Property of Thailand 1.5 Owner: Thai Government (Ministry of Commerce) 1.6 Environment: The current Civil and Commercial Code; Recording companies own most of Thai musical works. 2. The purposes of the process:- 2.1. Ensuring that the objective of copyright is achieved, namely to balance the benefits among songwriters, recording companies and the public' 2.2 Ensuring that the practices coincide with international standards. 2.3 Ensuring no rights abuses and malpractice of the CMOs. 2.4 Promoting awareness of collective management and sustaining the growth of the music and entertainment ind ustries. Subsystem 1, is the main part of the whole process. ln order to be successfully implemented, Subsystem 2 and Subsystem 3 are essential as supporters. Details of each subsystem are discussed below. 6.1 Subsystem 1: Copyright Collective Management Legislation The findings revealed that one difficulty setting up MCT as the songwriters CMO was its legal incorporation as a limited company as a profit making entity. Moreover, the situation of multiple collecting companies occurred because Thai recording companies wanted to continue to make profits from their rights by engaging a "middle man." Therefore, the aim of Subsystem 1 is to establish recognisable legal grounds for a not-for-profit membership-based CMO. lt is expected that announcing copyright collective management law will compel the current companies to group together either to form their own CMO or join with the existing CMOs, namely MCT for musical works and Phonorights for sound recording works. As a result, the number of collecting agencies should be immediately reduced. The next consideration is to what extent the government should exercise its control and supervision over collective management under the law. This involves deiisions relating to levels of collectivisation, supervision and types of dispute resolution. 1.1.
  • 12. ln relation to the suggestion of Sinacore-Guinns (1993), the Collective-Licensing type of collectivisation level is appropriate for musical and neighbouring public performing rights. ln the Collective-Licensing type, the CMO provides a blanket license allowing users to use any works in the repertoire upon royalty payment. ln order to achieve this arrangement, songwriters and music publishers need to surrender their control of the licensing activities to the musical works CMO and the recording companies to the sound recordings CMO. Then, they can exercise control of their respective rights indirectly through the involvement of managing the'respective CMOs; namely, the songwriters' CMO and the sound recording companies' CMO. The findings of the research revealed that abuse of rights sometimes occurs by Thai recording companies that collect royalties for their own profits. Moreover, the users can not cope with the tariff rates demanded by multiple collecting companies. Therefore, the level of government supervision suggested by Suthersanen (2002) should be a form of global supervision rather than the de mi nimrs supervision. Following the examples of the regimes in France, Germany, the Nordic countries, and Japan as presented in Chapter Two, global supervision aims to regulate the exploitation of rights by concentrating both on the relationship between the CMO and the users, and the CMO and its members. lt authorises the government to supervise the entire operation of the CMO and the duties of users in relation to the collective management regime (Suthersanen, 2002; Piaskowski, 2006; Reinboth e,2006; Okumura, 2006). The recommendations arising from this research are that the Thai Government control the copyright collective management regime to facilitate management of copyrights. Government intervention would enable songwriters a fair, efficient and accessible system for the benefit of the songwriters, owners and users of the musical works. Such a system could set guidelines for: Regulating major roles and duties of the CMO, Governmental supervisory control, and Dispute resolution mechanisrns. a) Regulating the Major Roles and Duties of the CMO Firstly, the law should establish a proper legal framework for a CMO. ln France, for example, it is stated in Act of 3 July 1985 under the chapter of 'collection and distribution societies', or the Code de la Propri6t6 lntellectuelle (CPl), that the CMO must be established as non-trading company or a "soci6t6 civile" where membership is limited to authors, performers, sound recording or video producers, publishers, or their successors in title. ln additional, the legal form of a CMO must ensure that a CMO does not make a profit and must be content with pooling its resources to serve its members (Suthersanen, 2002; Piaskowski, 2006). The second important regulatory factor is the need for the CMO to have the sanction of the government before it begins operation as was the case in Germany, France, and Japan (Suthersanen, 2002; Piaskowski, 2006; Reinbothe, 2006; and Okumura, 2006), Such approval should be granted after the CMO meets all requirements set out within the legal framework. The conditions are set to ensure the proper and transparent operation of the CMO. For example, a CMO must submit its statutes or rules and other documents or forms in relation to its operations to a government authority for approval. o O a 12
  • 13. Thirdly, the law needs to set out the responsibilities which a CMO must fulfill. Applying the regimes in France and Germany (Suthersanen, 2002 and Reinbothe, 2006), it is recommended for Thailand that the CMO's duties set out in the law include: to administer on equitable terms the rights of its members; to establish a tariff plan, submit the tariff plan to the government and publish these tariffs to the public; to distribute the collected revenues in a non-arbitrary manner. This distribution plan to be submitted to the government, which explains distributed to individua I members; to appoint a certified auditor for the CMO and to provide accounts basis; . requires a CMO to set up a how its revenues are to be and auditing on an annual - to provide information to any person as to whether the CMO administers rights in a given work, or provide licences on behalf of a given member; - to grant authorisation to all users on equitable terms without discrimination. Lastly, the law should protect the fair relationship between the CMO and its members by providing that members have the right to access the information concerning their CMO's operation. Such information includes annual statements of account reports, qualification of candidates to the management board, salaries of staff, and other similar information. ln addition, a certain number of members must have the right to appoint experts to report on the CMO's management operations. b) Government Supervisory Control The Ministry of Commerce of Thailand is the main authority best placed to supervise and control the CMO. The law should extend the authority's duties to include: lnitial authorisation: This is the duty to approve and appoint the CMOs after reviewing the required conditions submitted by the legal or natural person who applies to undertake a CMO. lf there is a reason to believe that the applicant does not possess the required level of trustworthiness or cannot administer the rights effectively, authorisation can be withheld. Continuous supervision: For example, to oversee the annual statement of accounts, to consider any proposed amendments to the CMO's statutes or rules, and to demand all documentation relevant to the CMO's function such as copies of contracts concluded with third parties. Prohibiting the CMO from performing its functions when there is certain evidence of serious malfunction or abuse of rights. c) Dispute Resolution Mechanism The current mechanism through the Central lntellectual Property and lnternational Trade Court with its arbitration bodies could be used for dispute settlement in relation to collective management in Thailand. 6.2 Subsystem 2: Promoting lnspiring Concepts for a CMO in Thailand As the research findings in revealed, although it is relatively common in Asian countries for local recording companies to own all copyrights, Thai recording companies refuse to become members of 13
  • 14. MCT for musical works and Phonorights for sound recording works. The underlying reasons include that: - they do not want to lose control over their rights; - they want to collect royalties by themselves to enhance their profits; and - they do not appear to appreciate the international practices and benefit of collective management in music industrY. The findings also show that some Thai songwriters do not join MCT for several reasons including that: they still do not fully understand or are not confident in songwriters' CMO; they are very dependent on recording companies and do not companies. the performance of MCT as a want to be in conflict with these Therefore, Subsystem 2 could be utilised to resolve the difficulties in relation to both Thai recording companies and songwriters. Public relations and educational campaigns on the roles and contributions of CMOs to the music industry should be planned by the DIP of Thailand which should continuously seek assistance from neutral international institutions such as WIPO and CISAC. Summarised from Chapter Two, four major inspiring contributions of CMOs that should be clearly communicated in a public relations and educational campaign are: - CMOs contribute to reducing the overall transaction costs with respect to songwriter-user and recording company-user relationships. - CMOs participate in the conscious acquisition of market power to enhance its members' opportunities. - CMOs have important social and cultural functions. - CMOs are essential for the internationalisation of the industry. 6.3 Subsystem 3: Promoting Exportation of Music and Entertainment Products Subsystem 2 and Subsystem 3 should be handled in parallel to support the implementation of Subsystem 1. Because Thai recording companies view collecting public performance royalties as a tool for making profits, it is important to point out the need for Thai recording companies to realise the benefits of being internationalised. Therefore, the government's strong commitment and support for policies to export music and entertainment products and services are extremely important. Also, in order to receive royalties from other countries, Thai recording companies must be members of the respective CMOs, namely the musical works and the sound recording works CMOs. The three recommended subsystems, which could work cohesively, are anticipated to reduce the number of profit making royalty collection companies to only a few not-for-profit CMOs via the Subsystem 1 strategy. Moreover, the Subsystem 1 strategy will provide proper legal grounds for MCT to be recognised as the musical works CMO. The strategies of Subsystems 2 and 3 are expected to assist the Thai recording companies to adopt the international practices of the music business, which 1,4
  • 15. has music publishers involved in administering musical works for songwriters. ln addition, Thai recording companies should realise that international music copyright management is managed by separate CMOs, namely a CMO of musical works and a CMO of sound recording works. 5.4 lmplementation Process lmplementing copyright collective management is a continuing learning process for developing countries. The important point is that policy-makers should ensure the balance of interests among songwriters, business entities, and users in implementing the regime of collective management. Based on this study, a collective management regime implementation process suggested for Thailand should consist of the twelve tasks as outlined in Figure 5 model. A primary task for the government, therefore, is to understand fully the principles, roles, practices, and contributions of a collective management regime to the country. The second task is for the bureaucrats to understand the local environment in relation to the music business. The third task is to consider the recommendations along the lines discussed in this paper utilising the three subsystems approach. The third task fells into two parts: Firstly, scoping, constructing and creating laws, regulations and mechanisms for collective management as discussed in Subsystem 1. Secondly, to undertake a public relations exercise to create knowledge, awareness, and acceptance of the roles of CMOs as detailed in Subsystems 2 and 3. This also includes task number nine, seeking assistance from neutral international institutions such as WIPO and CISAC, to publicise and explain to all parties their rights and roles. The rest of the tasks (4 to 6,8, 10 to 12) should be covered in the actual implementation of all subsystems in order to transform the multiple collecting agencies into the proposed model for collective management in Thailand. Finally, action research might be utilized to implement the recommended transformation process discussed. The actual process of managing, implementing, monitoring., evaluating and responding as presented in Figure 5, tasks numbered 4 to 12, in relation to the three subsystems should be tested through the action research. 15
  • 16. ,i,i ig;;.d,e;libili.dlngjbutib.nt:.fi *t:Unaira,ndi :iir:'jit i.t" M.ugiilijgusifil6ll,i.$ilir,at.iun*:.:lil'.,,:ir:;i:rj:..il,tit,,rll.,i.,,:1r,,r:,',;',,iit:l,::i]::,;; i.i,,,,iii,,i|2,:i!.r.Nat,lUn$,.t,1$itUAtf*n:iiij.'iii.ii.iitif.iftl.i:rif:,1::ir:t;.,ti,,,,li;l;,iiii,l;'r.li., ". SoCia [:i nd.,i Ctrlturdrt t: it€Bl5lfi t!,Of,J,::i:r:r,,, : r,: r,, i.;, ;;'i ffiffiffi#iffiffiffi ffi E E g S M "-T,ffinfi...Ei +fi I,.lY$r1r'1t1.11.if t;ll+,.+i. +ii#r'ilri & g & 6 X g F * d g E g - E ';r:t::tiil:iu{/:a:1il:a iriijli:iii{liiil#liliiiii t ::iitil:li:litiiiiiiiiriir:ii tlSin,,:A::Fll6, ..t::.r:rrlrtaiiiiiilaili.i.fi i:if ilii4!:li:::lit:*:j!9lijt:: f,iliiiiiitilii:i::i:iil:!iiiilliir ri:iitiltrliiil!ililll:::ilil::?n tiiliis!iit*i!i:ii:ii:li:ij.::l itrnrais8l:loroc665€t i::lij{iii*:r.rtr:,ji.$_iil i ii:i lliiiiiili*llitii:lli iltii ti !i: !t:t: ! i:;ii:11:i ira::il ,:'i;i;i*r,'blt:ff,*Ul8f lfi Hrf; 'n! .t:r!:f.r::ri:!!:::!itilr! !i! ! !l: !r:! !iiltii:!il:!ji:!lil!:!i::tl:j !::,:,tf:1,j,1,1:,,!i :, :,r:,i :ii+:i:lodtltitTlllilg,'$,n, I${Gi:lf+d:l}$IEv;iijji]:t!:ij,tijjt'r,ii.ii:it!,tii-iit::iiliit:; $ffi :ifi g$ii j,aib"rrss$ jihnf, lrlillirliiiiii{rl:; illl';l.qlll:rt!,14:[,trr",:ii:ii..:i:l:J ' i i: L r:. : i. .:. : r,: : '..: :: :: i.:: I l: I l:. .1:. I . : t:. : !: : I ! ii i ij i i$ffi$if*f#ffi 16 Figure 5: Proposed Model of Copyright Collective Management Regime lmplementation
  • 17. References Anderson, B, Kozul-Wright, Z, and Kozul-Wright, R 2000, Copyrights, Competition and Development: The Case of the Music lndustry, UNCTAD Paper, UNCTAD/OSG|DPl1,45, Geneva, United Nations Publication. Ang KT 1998, Collective Management of Copyright & Neighboring Rights - Basic Frameworks & Some Useful Concepts, CISAC Paper on 20-22 October, Manila. DIP 2OIO, Department of lntellectual Property, retrieved 30 March 2010, <http://www.ipthailand.go.th/ipthailand/index.php?option=com content&task=catesorv&sectionid=21&id=4 89&ltemid=396 Ficsor, M 2002, Collective Management of Copyright and Related Rights, 855{E), WIPO publication, Geneva. Fry, R 2002,'Copyright lnfringement and Collective Enforcement' European lntellectual Property Review, vol. 24,no.11, pp.516-524. Gervais, D 2006, 'The Changing Role of Copyright Collectives', in Gervais, D (ed.) Collective Management of Copyright and Related Rights, Bedfordshire, Kluwer Law lnternational, pp. 3-35. lFPl 2009, lnternational Federation of Phonographic lndustry, retrieved on 20 December 2009, < htt p ://www. if p i. o relco nte nt/se cti o n-a b o ut/i n d ex. ht m I >. Jehoram, HC 2001, 'The Future of Copyright Collecting Societies', European lntellectual Property Review, vol. 23, no.3, pp. I34-L39. Knight, CE 2000, 'Draft of Collection of Copyright Royalty and Performer's Right Royalty Act in Thailand', Entertainment Law Review, vol. L1, N-75. Kretschme r, M 2002, 'The Failure of Property Rules in Collective Administeration: Rethinking Copyright Societies as Regulatory lnstruments', European lntellectual Property Review, vol.24, no.3, pp.126-137. Leelataweewud, O 1996, Copyright Problems in Music lndustry, Thesis, Department of Law, Graduate School, Chulalongkorn U niversity, Ba ngkok. Lewinski, S 2002, 'The New Copyright Contract Law in Germany', Paper in EU-ASEAN Symposium on Copyrights and Neighbouring Rights 24-25 October 2002, Manila. Lunney, G 2006, 'Copyright Collectives and Collecting Societies: The United Dtates Experience', in Gervais, D. (ed.) Collective Management of Copyright and Related Rights, Bedfordshire, Kluwer Law lnternational, pp. 311- 342. Piaskowski, N 2006, 'Collective Management in France', in Gervais, D. (ed.) Collective Management of Copyright and Related Rights, Bedfordshire, Kluwer Law lnternational, pp. 153-191. Sinacore-Guinn, D 1993, Collective Administration of Copyrights and Neighboling Rights lnternational Practices, Procedure, and Organization, Little, Brown & Company, Boston Suthersanen, U 2002, 'European Union Experience in The Management of Copyright' Paper in EU-ASEAN Symposium on Copyrights and Neighbouring Rights 24-25 October 20A2, Manila. 17