Collective Administration of Copyright, 2004

L.N. 425 of 2003

COPYRIGHT ACT

(CAP. 415)

Control of the Establishment and Operation of Societies for the

Collective Administration of Copyright, 2004

IN exercise of the powers conferred by article 59 of the Copyright

Act, the Minister of Finance and Economic Affairs has made the

following regulations –

(1) The title of these regulations is the Control of the Citation and

Establishment and Operation of Societies for the Collective commencement.

Administration of Copyright Regulations 2004.

(2) These regulations shall come into force on the 1st

January, 2004.

In these regulations, unless the context otherwise requires

Definition.

“Act” means the Copyright Act<

“Board” means the Copyright Board established under article

45 of the Act.

and other words and phrases used shall have the same meaning as is

assigned to them in the Copyright Act.

The economic rights related to copyright and neighbouring Administration of

rights shall be administered by the owners of the rights, by collecting Rights.

societies as authorised by the right holders, or by mandatories

representing the right holders.

(1) A collecting society shall not operate in Malta unless it Approval of

Collecting

submits a request to the Board to operate as a collecting society and is Societies.

approved as a collecting society in accordance with the provisions of

the Act>

Provided that a request for incorporation of a collecting society

made at the Ministry responsible for the protection of Copyrights and

Neighbouring Rights and still pending prior to the commencement of

these regulations, shall be considered as having never been made.

(2) A request for approval of a collecting society submitted

to the Board shall include>

(a)

a copy of the statutes of the collecting society<

(b) the regulations of the collecting society concerning

the system of collection and distribution of fees and equitable

remuneration<

(c) a proposed tariff of all royalties to be collected by

the collecting society<

(d) a declaration stating the number of persons who

have entrusted or undertaken to entrust the collecting society

with the administration of their economic rights at the time

of the said declaration< and

(e) a list of contracts with other foreign or local

collecting societies regarding the administration of rights.

(3) The Board shall approve the collecting society unless>

(a) the statutes or regulations mentioned in sub-regulation

(2) hereof do not conform to the relevant provisions of the Act,

these regulations or of any other law<

(b) there is factual evidence indicating that a physical person

who may lawfully represent the collecting society under the statutes

of the organisation does not possess the abilities or reliability

necessary for the exercise of such activity<

(c) there is factual evidence indicating that the collecting

society is not able to fulfil its functions for any reason including

the absence of economic and technical means, or of appropriate

staff<

(d) another collecting society has already been approved in

the same field of administration, provided that the Board is satisfied

that the existence of more than one organisation in that particular

field of administration would not be beneficial to the interests of

the authors and other owners of copyright and of neighbouring

rights and the users<

(e)

it considers that the proposed tariffs are unacceptable>

Provided that if the collecting society has different sets of

tariffs, it may still be allowed to operate in those areas for which

the Board has approved the tariffs.

(4) In determining whether a collecting society has the

economic and technical means to fulfil its functions as specified in sub-

regulation (3)(c) hereof, the Board may consider the following>

(a) the number of authors who have undertaken to entrust

the collecting society with the administration of their economic

rights, as well as any plan or strategy by means of which the

collecting society intends to increase this number<

(b) any bilateral or multilateral contracts concerning the

administration of rights of foreign authors and other foreign owners

of copyright and of neighbouring rights, as well as any such

contracts or agreements which the collecting society is in the

process of implementing<

(c) the extent of the exploitation of works which fall under

the administration of that collecting society or the volume of

potential users of such works<

(d) the capability of the collecting society to administer the

rights of its members in other countries< and

(e) the ways and means whereby the collecting society

proposes to achieve its aims>

Provided that for the purpose of carrying out its functions

under this sub-regulation the Board may request from a collecting

society any related or incidental information as it deems

appropriate.

(5) The basis for calculating the tariffs shall normally be

the monetary advantages obtained from exploitation of the protected

work, as well as the proportion of the utilisation of the work in the total

exploitation. Other considerations to be made when calculating the

prospective tariffs should include the category and nature of the user

involved, including the type of business in the case of a commercial

venture, as well as any religious, cultural and social elements involved.

(1) As soon as practicable after the receipt of a request for Publication of

the approval of a collecting society, the Board shall publish the request Request.

together with the proposed tariffs in the Malta Government Gazette

and shall give notice that, within sixty days after the publication,

prospective users or their representatives may file written objections to

the request or the tariffs on the basis of the provisions of regulation 4(3)

with the Board.

(2) Following the lapse of the sixty days as specified in sub-

regulation (1) hereof, the Board shall as soon as practicable approve or

refuse the request for operation as a collecting society, taking into

consideration regulation 4(3), (4) and (5) and any objections which may

have been received. In its considerations the Board may call upon the

collecting society and any person who has made an objection under

sub-regulation (1) hereof for further representations, and shall provide

the collecting society with the opportunity to amend its request as

deemed necessary.

(3) In considering any request for the operation of a

collecting society the Board may, after granting the applicant a right to

be heard, impose such proportionate conditions upon said approval as

it may deem appropriate.

(4)

On taking its decision, the Board shall as soon as

practicable<

(a) send a copy of its decision to the collecting society that

filed the request and to any person who filed an objection< and

(b) publish its decision in the Gazette.

(5) If the decision is taken to approve the request for the

operation of a collecting society, the Board will also>

(a) send a copy of the approved tariffs, together with the

reasons for the Board’s decision, to the collecting society that filed

the tariff and to any person who filed an objection< and

(b) publish the approved set of tariffs in the Gazette.

(1) An approved tariff shall be effective for a period of two

calendar years from the date when it was published in the Gazette.

(2) After the two years specified in the paragraph above

have elapsed, the collecting society shall submit the tariffs for the next

two years to the Board, which will consider them according to the

following conditions>

(a) if the proposed tariff is identical to the previous tariff, it

will be approved by the Board>

Provided that if any objections to the tariff have been filed

with the Board in the preceding two years, the Board shall permit

the collecting society to reply to the objections, and after due

consideration of the objections and relevant replies, the Board shall

as soon as practicable approve or refuse the proposed tariff<

(b) if the proposed tariff includes revisions to the previous

tariff, the Board shall treat it according to the provisions of

regulations 5(1) to (3) relating to tariffs.

(1) A collecting society, on behalf of, and on the basis of Functions of

the authorisation by, the authors and other owners of copyright and of Collecting

Societies.

neighbouring rights that are its members or that it otherwise represents

on the basis of agreements with local or foreign collecting societies

may fulfil the following tasks>

(a) to give authorisation to third parties to carry out acts

covered by the exclusive economic rights administered<

(b) to collect fees for authorisation mentioned in paragraph

(a) and to collect equitable remuneration where the law provides

for such remuneration<

(c) to distribute the fees and equitable remuneration thus

collected among the authors and other owners of copyright and of

neighbouring rights concerned<

(d) to take any legal action necessary for the enforcement

of the rights administered by it<

(e) to carry out any other acts authorised, in keeping with

article 24 of the Act, by the authors and other owners of copyright

and of neighbouring rights, or by the bodies representing them,

whose exclusive economic rights or rights to equitable

remuneration are administered.

(2) Companies, business concerns or other organisations

which do not conform to the provisions specified in the Act or in these

regulations for the operation of collecting societies shall have no right

(a) grant licenses, collect royalties, or in any way administer

economic rights arising from the ownership of copyright or

neighbouring rights< or

(b) commence any action for the infringement of the rights

or the recovery of royalties< or

(c) otherwise perform any of the functions of a collecting

society according to the provisions of the Act or these regulations.

Provided, without prejudice to the provisions of sub-regulation

(3) hereof, that nothing in this paragraph shall affect the right of

authors and other owners of copyright or neighbouring rights to

appoint a direct legal representative to manage or administer their

economic rights>

Provided further that said legal representative only collects

fees on behalf of his client and passes said fees directly to his

clients and not in the form of a redistribution scheme as normally

operated by collecting societies.

(3) Companies, business concerns or other organisations

which perform the functions of collecting societies according to the

provisions of the Act and these regulations, shall be considered collecting

societies for the purposes of the Act and these regulations and shall be

subject to the relevant provisions thereof.

(1) Decisions about the methods and rules of collection and

Distribution of Fees.

distribution of fees and equitable remuneration and about other aspects

of collective administration shall be taken by the authors and other

owners of copyright and of neighbouring rights whose rights are

administered or by the bodies representing them.

(2) Without the authorisation of the authors and other

owners of copyright and of neighbouring rights whose rights are

administered or of the bodies representing them, no fees or equitable

remuneration collected by a collecting society shall be used for any

purposes such as for cultural or social purposes, or for financing

promotion activities other than the purposes of covering the actual costs

of administration of the rights involved and of distributing the amounts

of fees or equitable remuneration that remain after the deduction of

such costs, in keeping with sub-regulation (3) hereof.

(3) The amounts of fees and equitable remuneration

collected by a collecting society shall, after the deduction of the actual

costs of collective administration and other possible deductions that

may be authorised in keeping with sub-regulation (2) hereof, be

distributed among the authors and other owners of copyright and of

neighbouring rights, as much as is possible and practicable, in proportion

to the actual use of their works.

(1) The authors and other owners of copyright and of

neighbouring rights whose rights are administered shall have the right

to obtain full and detailed information about all the activities of the

collecting society that concern the exercise of their rights.

(2) Any collecting society must answer within a reasonable

time all reasonable requests from the public for information about>

(a) its repertoire of works, performer’s performances or

sound recordings<

(b) its system of collection and distribution of fees and

equitable remuneration< and

(c) its tariff of all royalties to be collected by the collecting

society that are in current use.

Authors and other owners of copyright and of neighbouring National Treatment.

rights who or which are not nationals of, or have their habitual residence

or their headquarters outside, Malta and whose rights are administered

by a collecting society in Malta, shall enjoy, in respect of the

administration of their rights, the same treatment as those authors and

other owners of copyright and of neighbouring rights who or which are

members of, or are otherwise represented by, the collecting society and

who or which are nationals of, or have their habitual residence or their

headquarters in, Malta.

A collecting society may not, without good reason>

Prohibition of

Refusal.

(a) refuse to authorise the use of works where such use lies

within the scope of its administration<

(b) refuse to manage the economic rights of authors and

other owners of copyright and of neighbouring rights in accordance

with its statute.

Those who carry out acts authorised by a collecting society Obligations of users

or acts for which, although authorisation is not needed, equitable of works.

remuneration is to be paid to a collecting society, shall -

(a) facilitate the monitoring, by the representatives of the

collecting society, of the acts authorised or for which equitable

remuneration is to be paid<

(b) if required, give the collecting society all information

available to them concerning the acts performed in respect of the

works concerned.

(1) Any collecting society shall immediately furnish the Duty to promote

documents.

Board with a copy of -

(a) any amendment to its statutes or regulations mentioned

in regulation 4(2)<

(b) any new or additional bilateral or multilateral contract

concerning the administration of rights of foreign authors and other

foreign owners of copyright and of neighbouring rights and any

amendments thereto<

(c) any new or additional contract with another local

collecting society<

(d) the yearly balance sheet, annual report and auditor’s

report concerning the operation of the collecting society.

(2) Any collecting society shall immediately inform the

Board of any change concerning the physical persons who may lawfully

represent it.

(3) Upon the request of the Board a collecting society shall

finish any further information that is necessary to determine whether or

not the operation of the collecting society conforms to the statutes of

the organisation and to the provisions of the Act and these regulations

and whether or not the appropriate fulfilment of the functions of the

collecting society is ensured. In requesting such information the Board

shall fix a reasonable time limit as it deems appropriate for the collecting

society to comply until its request.

The Board shall revoke the authorisation of companies,

business concerns or other organisations to act as a collecting society if

any ground for which the approval of the collecting society would have

been denied as specified in regulation 4 (3) and (4) arises, unless the

circumstances giving rise to such grounds are remedied within a

reasonable period fixed by the Board, or, if, despite a warning by the

Board, the collecting society repeatedly violates its statutes, its

regulations mentioned in regulation 4(2) or the provisions of the Act or

of these regulations.

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press