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Protection and Management of Copyright in Thailand: Current Practice and Challenges
 

Protection and Management of Copyright in Thailand: Current Practice and Challenges

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Published in "National Seminar on Protection and Management of Copyright and Related Rights" November 5-6, 2012 in Thaland

Published in "National Seminar on Protection and Management of Copyright and Related Rights" November 5-6, 2012 in Thaland

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    Protection and Management of Copyright in Thailand: Current Practice and Challenges Protection and Management of Copyright in Thailand: Current Practice and Challenges Document Transcript

    • Topic 5Protection and Management of Gopyright and Related Rights in Thailand: Current Practice and Challenges By Dr. Supatchara Distabanjong
    • Protection and Management of Copyright and Related Rights in Thailand: Current Practice and Challenges Dr. Supatchara DISTABANJONGln considering the practice and challenges of copyright and related rights protection andmanagement in Thailand, this paper is emphasized on music industry for two reasons. Firstly, it issuggested that music industry is the most common and active in the field of copyright and relatedrights 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 ManagementManagement of the worldwide music industry has achieved a highly refined degree ofcommercialization and now ranks as a significant global business. Changes to the industry haveoccurred at different rates in different countries, and it is only in recent decades that Thailand hasbegun to catch up with the rest of the world. ln all environments, a keystone to the management ofthe music industry is the emergence of copyright collective management regimes which aim tobalance the financial interests and entitlement to royalties of songwriters, sound recordingcompanies and music users when the usage involves multiple creators, owners and users.According to the World lntellectual Property Organization, copyright collective management isdefined as a system of copyright administration which involves three parties: o the collective management organization (or CMO), o the copyright owners, and O the copyright work users.Collective management refers to granting an authorization for the use of copyright works by a CMOon behalf of several rights owners, meaning that a group of copyright owners pool together some orall of their rights so that users are conveniently able to obtain licenses to use such pooled rights fromone single source, the CMO. Thus, the CMO acts as a facilitator on behalf of copyright ownersregarding contracts forthe use of their works. The basic functions which to facilitate include: o administering the owners rights, o monitoring use of the works, o negotiating and licensing appropriate fees and conditibns, a distributing the fees among the owners of rights, and a taking legal action against infringers.The contradiction inherent in copyright regulation is the need to protect authorsrights and at thesame time make their works universally available. While the law provides authors bundles ofexclusive rights to exclude others from exploiting their works, copyright mechanisms need to ensuresocietys accessibility to the copyrighted material given its valueto culture and knowledge. Copyright
    • regimes need to strike a balance between the incentives provided to creators and the benefit tosociety as a whole (Drahos, L996; Bainbridge,1999; and Zimmerman, 1999).The exclusive rights of authors are often fragmented and hence can be managed separately. Theserights extend from reproduction in different formats to preventing unauthorised adaptation andunauthorised public performance, broadcasting, and communicating to the public of authors works.lndividual management of rights is preferred whenever possible; however, this is not always possibleparticularly in cases that involve multiple works, users and creators, a situation in which collectivemanagement can be best applied (Gervais, 2006 and Sinacore-Guinn, 1993). What is Collective Management? Collective Management pool right r+> Collective .t Management $ royalties 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 ofcollective management as detailed in Figure 1. ln the collective management context, creators orrights 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 ownersand rights users. As not-for-profit organisations, CMOs facilitate the ability of creators to exercisetheir rights in a fair, efficient and accessible way by monitoring the use, negotiation, collection anddistribution 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 andthe changing roles of collective management regimes as shown in Figure 2. The difficultcharacteristics of copyright are its apparent paradox and fragmentation of rights.
    • Tthe paradox of copyright is that while the law provides rights owners bundles of exclusive rights toexclude others from exploitation, at the same time, the copyright system need to ensure societysaccessibility to the copyright works. Secondly, the fragmentation of copyright, which occurs at manydifferent levels, creates difficulty in collective management. Traditionally, fragmentation includesseveral categories of economic rights (such as reproduction, adaptation, public performance, andtransmission rights) each of which can be managed separately.Other forms of fragmentation can occur within market structures and licensing practices. Theproduction of "music or song" can consist of more than one copyrighted work. Besides rightsrelating to a specific musical work, a piece of music or song can involve rights relating to soundrecording and the performers. Cinimatographic and video production likewise may give rise tomultiple copyright issues. Thus CMOs must develop their operations around these fragments(Gervais, 2006). Challenges in Roles of Collective Copvrisht Management Apparent Paradox .Facilitate copyright ind ustry .Fragrnentatio n o f rights effectively .Enable creators to exercise .Digital & Internet rights in a fair effic ient & accessible manner Figure 2. : Theoretical framework to lJnderstand Copyright Collectives Source: Summarized from Gervais, 20062. Situation of Collective Management in Thailands Music lndustryCMOs are created within and reflect the political, social, cultural, and economic frameworks of manydifferent countries. Therefore, to implement a copyright collective management regime, policy-makers must have a detailed understanding of both international and local environments since aregime 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 ofother countries regimes after taking into consideration its own local environment. This process is ofgreat 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
    • conflicts relative to stakeholders within collective management in Thailand. As discussed, MusicCopyright (Thailand) Ltd., or MCT, the first collective management organisation in Thailand, wasfounded in 1,994 by a group of Thai songwriters with support from CISAC1 to be a CMO forsongwriters and music publishers in Thailand. Due to its reciprocal representative agreements withother CISAC member societies worldwide, MCTs repertoire comprises music compositions not onlyof Thai origin, but also most international musical works performed in Thailand. However, MCTcovers only about 1,5% of Thai works because not many Thai songwriters have sought membership,At the outset, some songwriters were sceptical of MCTs operations and reluctant to becomemembers, and many Thai songwriters who were employed by Thai recording companies had nocontrol over their works and hence saw no benefit in joining MCT. Lastly, some songwriters,including many who had signed up, were not satisfied with MCTs performance, especially its slowprogress 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 soundrecording companies, as owners of master sound recording works, have not become members ofPhonorights.ln principle, Thai recording companies, as owners of musical works, should become members of MCTas music publishers. However, recording companies refuse to become members of MCT becausethey aim to make profits on collecting their own public performance royalties on all copyrightedmusic works in their repertoires.It can be seen that, on the one hand, the collective management regime of Thailand followsinternational practices because MCT is a CISAC member and Phonorights is an lFPl member. Eachorganisation can offer public performance licenses for most international repertoires of musicalworks or sound recording works used in Thailand through the network of international CMOs. Onthe other hand, the practices and attitudes of the local stakeholders ln the music business have notyet 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 ofroyalties in Thailand has faced many difficulties. Although the Ministry of Commerce announced aruling in 2002 that copyright royalty collection was to be under the control of the CentralCommission for Price Control of Goods and Services, this short term measure proved insufficient. ByMarch 2010, twenty-four companies were operating in Thailand to collect public performanceroyalties 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 andis the leading worldwide network of authors societies: 23 I collective management organisations in 121 countries protecting the interests of over 3 nrillion creators andrights 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 recordcompanies in 66 countries and affiliated industry associations in 45 countries. IFPIs mission is to promote the value ofrecorded music, safeguard the rights ofrecordproducers and expand the comrnercial uses of recorded music in all markets where its members operate.
    • Table L: Climates and lssues For Each Stakeholder in Music Royalty Collecting Stakeholders Climates/lssues1. 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 Two CMOs were set up, one for songwriters and one for sound recording companies with the support from respective international institutions 1 MCT - 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 blishers2.2 Phonorights - A sound recording companies CMO in Thailand which covers all international music master recordings - Cannot persuade Thai sound recordings to become members Remark: MCT and Phonorights formed o joint venture of licensing operation in 20033. Thai sound - Very powerful financially and politically. recording - Own both Thai music compositions (or musical works) and master recording companies (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 internationalized4. 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 dont know which companies/agents to pay Some companies or agents abuse the rights by demanding royalties in inappropriate manners such as by threats5. Ministry of - The measures for copyright royalty collection under.control of the Commerce 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.
    • 3. Weakness of Collective Management in ThailandThe findings of this study indicate that several weaknesses exist in th.e implementation of collectlvemanagement 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 establishconcrete and clear policy guidelines in relation to a collective management regime. MCT did notreceive enough support from the government to put in place the necessary mechanisms to enforceand establish an effective royalty collection regime, Moreover, there was no provision for collectivemanagement under the Thai Copyright Act due to a lack of understanding at the level of those ingovernment 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 whichit should intervene.The research also indicates that that there were several factors related to the music industryobstructing the collective management regime in Thailand. Firstly, since a music publisher businessdid not exist in the Thai music industry, there was no music publisher entity to manage andnegotiate business transactions for Thai songwriters. Thus, Thai songwriters had to depend heavilyon Thai recording companies. This often meant they had to transfer their creative works to therecording companies in order for the works to be marketed. As a result, Thai recording companiesowned two types of copyright works, both musical and sound recording works. Moreover, Thairecording companies were very powerful and decided to collect royalties for their own benefit. lnother words, Thailands 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 corporatemodel. This arrangement caused people to believe that MCT was out to make profit for itself andwas not an altruistic, non-profit making organisation as it claimed.Thirdly, MCTs Thai repertoire covered relatively few works. lt covered about 10-15% of the activeThai musical works, while Thai music accounted for about 80-85% of the total market. MCTsstrength turned on its repertoire of international music; thus, its revenues derived mainly fromroyalties from international compositions performed in Thailand. The majority of these royaltieswent to songwriters CMOs in other countries. As a result, the full benefits and contribution of thecollective management organization to Thai songwriters and the general public have never beenfully achieved.Finally, the weakness at the individual level mainly involved a lack of solidarity among songwritersand an absence of knowledge of copyright and the collective management regime. Music users hadnever been asked in the pastto pay music license fees, nor did they have confidence in the collectivemanagement organization model. Music users did not have an accepting attitude towards paying
    • royalties since they did not recognise the benefits that the regime could offer in terms of the legalusage of music and rewards to songwriters for their creation of music compositions4. Model for Collective Management in Thailandlnternational experts revealed their opinions on the attributes of a successful collectivemanagement 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 Thailands problem of multiple collectingagencies, it was agreed by all Thai respondents that the collective management in Thailand shouldconform to international practices in order to solve MCTs problems. One important standard ofcollective 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 enactlaws or regulations to legally recognise the CMOs status as not-for-profit-organisation Then, thegovernment 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 anacceptable structure. ln the model there are two types of organizations: an organization forsongwriters and music publishers which must be CISAC members and an organization for recordingcompanies which must be an lFPl member. However, the two organizations need to worktogether, paid by eacheit1rer via regulation or by consensus, so that only one amount of royalty is levied andmusic user. Royalties paid by users should then be divided between the two organizations on thebasis of an agreed formula after deduction of agreed costs of collection. Then, each organizationwould distribute royalties to those entitled. Songwriters organization n musical roya lties roYalties t t Join License Music Songwriters & Music Publishers Users * Sound recording n royalty piid rcyalties @@-@.@ - - r.*.*... v,_ s Recordings 4-----*&: f,:=z* organization @ @ Recording companies Figure 4: Model for Collective Management ln Relation To Public Performance Rights of Music in Thailand
    • ln order to achieve the ultimate scheme of music collective management presented in Figuer 4, therecommended strategies outlined in Table 2 could be utilised.5. Recommendations and lmplications for ThailandAs discussed, the public performance rights in music need to be managed collectively because of theinvolvement of multiple creators, owners, and users (Fiscor, 2002; Sinacore-Guinn, 1993; and WIPO1990). Whether or not a country needs a provision of collective management in its law depends onthe local environment of that country. ln the case of Thailand, there are several reasons that supportthe need for laws and regulations in relation to copyright collective management.Firstly, Thai recording companies, as owners of musical works, perceive collecting publicperformance royalties as a tool for profit making, which contrasts negatively with internationalpractises. As a result, multiple collecting companies under the umbrellas of recording companieshave emerged. Secondly, the unfairness of the existing system is perCeived not only by music usersbut also by songwriters. Besides the fact that music users can not cope with all royalties demandedby the collecting companies, they are threatened by some companies, causing abuses in copyrightsroyalty collection practices. Songwriters feel unfairly treated because they receive little or no shareof their compositions royalties collected by recording companies. Fourthly, DIP has no directauthority provided by the law and regulations to intervene in copyright royalty collecting when itbecomes disadvantageous to society. Lastly, there is no type of legal entity underThailands Civil andCommercial Code that is suitable for a not-for-profit and membership based entity to operate acopyright collective management organisation. Thus, it is recommended that a special law tomanage and regulate collective management be enacted so that the government manages theregime and irons out the existing difficulties.Moreover, it can be inferred from the interview results that Thai recording companies, who owncopyright and neighbouring rights relating to most music in Thailand, do not want to lose controlover their rights. Therefore, the strategies to transform the situation of multiple profit-makingcollecting companies to not-for-profit membership based CMOs should consider the aspects oflicensing the public performance rights and distributing the royalties to respective creators andowners of the works at the same time. Table 2 outlines suggested strategies in relation to rightslicensing and royalties distribution as well as the implement of strategies.5. Recommended Transformation ProcessA suggested process for transformation of the current situation is shown in Figure 5 with thestrategic policies to do so presented in Table 2. The definition of the transformational system can bedefined 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."
    • 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 Establishing legislation concerning a not-for-profit cu rrent collecting companies mem bership based col lective ma nagement organisation 1.2 Establishing a one-stop - Managing support policies to: licensing operation 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 - Establishing legislation to ensure the royalties CMOs operation distribution process is one of the prerequisite duties of the CMO. 2.2 Ensuring conformity with - Seeking assistance and support from neutral international standard practices 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 ofCommerce (MOC), as the policy decision maker, shall be the owner of this transformation processgiving full recognition to the benefit of music industry internationalisation. For the Department oflntellectual 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
    • 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 discussedbelow.6.1 Subsystem 1: Copyright Collective Management LegislationThe findings revealed that one difficulty setting up MCT as the songwriters CMO was its legalincorporation as a limited company as a profit making entity. Moreover, the situation of multiplecollecting companies occurred because Thai recording companies wanted to continue to makeprofits from their rights by engaging a "middle man." Therefore, the aim of Subsystem 1 is toestablish recognisable legal grounds for a not-for-profit membership-based CMO. lt is expected thatannouncing copyright collective management law will compel the current companies to grouptogether either to form their own CMO or join with the existing CMOs, namely MCT for musicalworks and Phonorights for sound recording works. As a result, the number of collecting agenciesshould be immediately reduced.The next consideration is to what extent the government should exercise its control and supervisionover collective management under the law. This involves deiisions relating to levels ofcollectivisation, supervision and types of dispute resolution. 1.1.
    • ln relation to the suggestion of Sinacore-Guinns (1993), the Collective-Licensing type ofcollectivisation level is appropriate for musical and neighbouring public performing rights. ln theCollective-Licensing type, the CMO provides a blanket license allowing users to use any works in therepertoire upon royalty payment. ln order to achieve this arrangement, songwriters and musicpublishers need to surrender their control of the licensing activities to the musical works CMO andthe recording companies to the sound recordings CMO. Then, they can exercise control of theirrespective rights indirectly through the involvement of managing therespective CMOs; namely, thesongwriters CMO and the sound recording companies CMO.The findings of the research revealed that abuse of rights sometimes occurs by Thai recordingcompanies that collect royalties for their own profits. Moreover, the users can not cope with thetariff rates demanded by multiple collecting companies. Therefore, the level of governmentsupervision suggested by Suthersanen (2002) should be a form of global supervision rather than thede mi nimrs supervision.Following the examples of the regimes in France, Germany, the Nordic countries, and Japan aspresented in Chapter Two, global supervision aims to regulate the exploitation of rights byconcentrating both on the relationship between the CMO and the users, and the CMO and itsmembers. lt authorises the government to supervise the entire operation of the CMO and the dutiesof 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 ThaiGovernment control the copyright collective management regime to facilitate management ofcopyrights. Government intervention would enable songwriters a fair, efficient and accessiblesystem for the benefit of the songwriters, owners and users of the musical works. Such a systemcould set guidelines for: o Regulating major roles and duties of the CMO, O Governmental supervisory control, and a Dispute resolution mechanisrns.a) Regulating the Major Roles and Duties of the CMOFirstly, the law should establish a proper legal framework for a CMO. ln France, for example, it isstated in Act of 3 July 1985 under the chapter of collection and distribution societies, or the Codede 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 videoproducers, publishers, or their successors in title. ln additional, the legal form of a CMO must ensurethat a CMO does not make a profit and must be content with pooling its resources to serve itsmembers (Suthersanen, 2002; Piaskowski, 2006).The second important regulatory factor is the need for the CMO to have the sanction of thegovernment 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 grantedafter the CMO meets all requirements set out within the legal framework. The conditions are set toensure the proper and transparent operation of the CMO. For example, a CMO must submit itsstatutes or rules and other documents or forms in relation to its operations to a governmentauthority for approval. 12
    • Thirdly, the law needs to set out the responsibilities which a CMO must fulfill. Applying the regimesin France and Germany (Suthersanen, 2002 and Reinbothe, 2006), it is recommended for Thailandthat the CMOs 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 requires a CMO to set up a distribution plan to be submitted to the government, which explains how its revenues are to be distributed to individua I members; to appoint a certified auditor for the CMO and to provide accounts and auditing on an annual basis; .- 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 providingthat members have the right to access the information concerning their CMOs operation. Suchinformation includes annual statements of account reports, qualification of candidates to themanagement board, salaries of staff, and other similar information. ln addition, a certain number ofmembers must have the right to appoint experts to report on the CMOs management operations.b) Government Supervisory ControlThe Ministry of Commerce of Thailand is the main authority best placed to supervise and control theCMO. The law should extend the authoritys 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 CMOs statutes or rules, and to demand all documentation relevant to the CMOs 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 MechanismThe current mechanism through the Central lntellectual Property and lnternational Trade Court withits arbitration bodies could be used for dispute settlement in relation to collective management inThailand.6.2 Subsystem 2: Promoting lnspiring Concepts for a CMO in ThailandAs the research findings in revealed, although it is relatively common in Asian countries for localrecording companies to own all copyrights, Thai recording companies refuse to become members of 13
    • MCT for musical works and Phonorights for sound recording works. The underlying reasons includethat:- 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 includingthat: they still do not fully understand or are not confident in the performance of MCT as a songwriters CMO; they are very dependent on recording companies and do not want to be in conflict with these companies.Therefore, Subsystem 2 could be utilised to resolve the difficulties in relation to both Thai recordingcompanies and songwriters. Public relations and educational campaigns on the roles andcontributions of CMOs to the music industry should be planned by the DIP of Thailand which shouldcontinuously seek assistance from neutral international institutions such as WIPO and CISAC.Summarised from Chapter Two, four major inspiring contributions of CMOs that should be clearlycommunicated 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 ProductsSubsystem 2 and Subsystem 3 should be handled in parallel to support the implementation ofSubsystem 1. Because Thai recording companies view collecting public performance royalties as atool for making profits, it is important to point out the need for Thai recording companies to realisethe benefits of being internationalised. Therefore, the governments strong commitment andsupport for policies to export music and entertainment products and services are extremelyimportant. Also, in order to receive royalties from other countries, Thai recording companies mustbe members of the respective CMOs, namely the musical works and the sound recording worksCMOs.The three recommended subsystems, which could work cohesively, are anticipated to reduce thenumber of profit making royalty collection companies to only a few not-for-profit CMOs via theSubsystem 1 strategy. Moreover, the Subsystem 1 strategy will provide proper legal grounds for MCTto be recognised as the musical works CMO. The strategies of Subsystems 2 and 3 are expected toassist the Thai recording companies to adopt the international practices of the music business, which 1,4
    • has music publishers involved in administering musical works for songwriters. ln addition, Thairecording companies should realise that international music copyright management is managed byseparate CMOs, namely a CMO of musical works and a CMO of sound recording works.5.4 lmplementation Processlmplementing copyright collective management is a continuing learning process for developingcountries. The important point is that policy-makers should ensure the balance of interests amongsongwriters, business entities, and users in implementing the regime of collective management.Based on this study, a collective management regime implementation process suggested forThailand 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 thebureaucrats to understand the local environment in relation to the music business. The third task isto consider the recommendations along the lines discussed in this paper utilising the threesubsystems approach. The third task fells into two parts: Firstly, scoping, constructing and creatinglaws, 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 theroles of CMOs as detailed in Subsystems 2 and 3. This also includes task number nine, seekingassistance from neutral international institutions such as WIPO and CISAC, to publicise and explain toall parties their rights and roles. The rest of the tasks (4 to 6,8, 10 to 12) should be covered in theactual implementation of all subsystems in order to transform the multiple collecting agencies intothe proposed model for collective management in Thailand.Finally, action research might be utilized to implement the recommended transformation processdiscussed. The actual process of managing, implementing, monitoring., evaluating and responding aspresented in Figure 5, tasks numbered 4 to 12, in relation to the three subsystems should be testedthrough the action research. 15
    • ,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$itUAtf*n:iiij.iii.ii.iitif.iftl.i:rif:,1::ir:t;.,ti,,,,li;l;,iiii,l;r.li.,ffiffiffi#iffiffiffi ". SoCia [:i nd.,i Ctrlturdrt t: it€Bl5lfi t!,Of,J,::i:r:r,,, : r,: r,, i.;, ;;i ffi E E g S M & g & 6 X g F * d g E g E - "-T,ffinfi...Ei +fi t;ll+,.+i. I,.lY$r1r1t1.11.if t ::iitil:li:litiiiiiiiiriir:ii itrnrais8l:loroc665€t +ii#rilri ;r:t::tiil:iu{/:a:1il:a tlSin,,:A::Fll6, ..t::.r:rrlrtaiiiiiilaili.i.fi i:if ,iliiiiiitilii:i::i:iil:!iiiilliir iriijli:iii{liiil#liliiiii fri:iitiltrliiil!ililll:::ilil::?n ilii4!:li:::lit:*:j!9lijt:: tiiliis!iit*i!i:ii:ii:li:ij.::l 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; I${Gi:lf+d:l}$IEv;iijji]:t!:ij,tijjtr,ii.ii:it!,tii-iit::iiliit:; 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, $ffi :ifi g$ii j,aib"rrss$ jihnf, lrlillirliiiiii {rl:; i::lij{iii*:r.rtr:,ji.$_iil illl;l.qlll:rt!,14:[,trr",:ii:ii..:i:l:J i i: L r:. : i. .:. : r,: : ..: :: :: i.:: I l: I l:. .1:. I . : t:. : !: : I ! ii i ij i i$ffi$if*f#ffiFigure 5: Proposed Model of Copyright Collective Management Regime lmplementation 16
    • ReferencesAnderson, B, Kozul-Wright, Z, and Kozul-Wright, R 2000, Copyrights, Competition and Development: The Caseof 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 UsefulConcepts, 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=489&ltemid=396Ficsor, 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 ofCopyright 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 bo ut/i nd 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 Performers 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 CopyrightSocieties 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 Copyrightsand 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 ofCopyright and Related Rights, Bedfordshire, Kluwer Law lnternational, pp. 153-191.Sinacore-Guinn, D 1993, Collective Administration of Copyrights and Neighboling Rights lnternationalPractices, Procedure, and Organization, Little, Brown & Company, BostonSuthersanen, U 2002, European Union Experience in The Management of Copyright Paper in EU-ASEANSymposium on Copyrights and Neighbouring Rights 24-25 October 20A2, Manila. 17