CONTROL OF THE ESTABLISHMENT AND OPERATION OF SOCIETIES FOR THE COLLECTIVE ADMINISTRATION OF COPYRIGHT

ADMINISTRATION OF COPYRIGHT

SUBSIDIARY LEGISLATION 415.01

CONTROL OF THE ESTABLISHMENT AND

OPERATION OF SOCIETIES FOR THE

COLLECTIVE ADMINISTRATION OF COPYRIGHT

REGULATIONS

24th June, 2016

LEGAL NOTICE 239 of 2016.

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

Establishment and Operation of Societies for the Collective

Administration of Copyright Regulations.

(2) These regulations transpose Directive 2014/26/EU of the

European Parliament and of the Council of 26 February 2014 on

collective management of copyright and related rights and multi-

territorial licensing of rights in musical works for online use in the

internal market.

Title I

General Provisions

(1)

In these regulations, unless the context otherwise

requires -

"the Act" means the Copyright Act;

"Board" means the Copyright Board established under article 45

of the Act;

"collective management organisation" means any organisation

which is authorised by law or by way of assignment, licence or any

other contractual arrangement to manage copyright or rights related

to copyright on behalf of more than one rightholder, for the

collective benefit of those rightholders, as its sole or main purpose,

and which fulfils one or both of the following criteria

(a) it is owned or controlled by its members;

(b) it is organised on a not-for-profit basis;

"director" means

(a) where national law or the statute of the collective

management organisation provides for a unitary board,

any member of the administrative board;

(b) where national law or the statute of the collective

management organisation provides for a dual board,

any member of the management board or the

supervisory board;

"general assembly of members" means the body in the collective

management organisation wherein members participate and

exercise their voting rights, regardless of the legal form of the

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organisation;

"independent management entity" means any organisation which

is authorised by law or by way of assignment, licence or any other

contractual arrangement to manage copyright or rights related to

copyright on behalf of more than one rightholder, for the collective

benefit of those rightholders, as its sole or main purpose, and which

is

(a) neither owned nor controlled, directly or indirectly,

wholly or in part, by rightholders; and

(b) organised on a for-profit basis;

"management fees" means the amounts charged, deducted or

offset by a collective management organisation from rights revenue

or from any income arising from the investment of rights revenue

in order to cover the costs of its management of copyright or

related rights;

"member" means a rightholder or an entity representing

rightholders, including other collective management organisations

and associations of rightholders, fulfilling the membership

requirements of the collective management organisation and

admitted by it;

"multi-territorial licence" means a licence which covers the

territory of more than one Member State;

"online rights in musical works" means any of the rights of an

author in a musical work provided for under Articles 2 and 3 of

Directive 2001/29/EC which are required for the provision of an

online service;

"repertoire" means the works in respect of which a collective

management organisation manages rights;

"representation agreement" means any agreement between

collective management organisations whereby one collective

management organisation mandates another collective management

organisation to manage the rights it represents, including an

agreement concluded under regulations 36 and 37;

"rightholder" means any person or entity, other than a collective

management organisation, that holds a copyright or related right or,

under an agreement for the exploitation of rights or by law, is

entitled to a share of the rights revenue;

"rights reve nue" m eans income collected by a colle ctive

management organisation on behalf of rightholders, whether

deriving from an exclusive right, a right to remuneration or a right

to compensation;

"statute" means the memorandum and articles of association, the

statute, the rules or documents of constitution of a collective

management organisation;

"user" means any person or entity that is carrying out acts subject

to the authorisation of rightholders, remuneration of rightholders or

payment of compensation to rightholders and is not acting in the

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capacity of a consumer;

(2) All other words, terms and expressions used shall have the

same meaning as is given to them in the Act.

(1) These regulations lay down the necessary requirements

to ensure the proper functioning of the management of copyright

and related rights by collective management organisations. It also

lays down requirements for multi-territorial licensing by collective

management organisations of authors’ rights in musical works for

online use.

(2)

These regulations apply as follows

(a) Titles I, II, IV and V with the exception of regulation

41(2) apply to all collective management organisations

established in Malta;

(b) Title III and regulation 41(2) apply to collective

management organisations established in Malta

managing authors’ rights in musical works for online

use on a multi-territorial basis;

(c) the relevant provisions of these regulations apply to

entities directly or indirectly owned or controlled,

wholly or in part, by a collective management

organisation, provided that such entities carry out an

activity which, if carried out by the collective

management organisation, would be subject to the

provisions of these regulations;

(d) regulation 20(1), regulations 26. and 38, paragraphs

(a), (b), (c), (e), (f) and (g) of regulation 29(1) and

regulation 43 apply to all independent management

entities established in Malta.

Title II

Collective Management Organisations

Chapter 1

Representation of rightholders and membership and organisation

of collective management organisations

(1) The economic rights related to copyright and

neighbouring rights shall be administered by the owners of the

rights, by collective management organisations as authorised by the

right holders, or by mandatories representing the right holders.

(2) Collective management organisations shall act in the best

interests of the rightholders whose rights they represent and shall

not impose on them any obligations which are not objectively

necessary for the protection of their rights and interests or for the

effective management of their rights.

(1) Rightholders have the following rights which shall be

set out in the statute or membership terms of the collective

management organisation

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(a) the right to authorise a collective management

organisation of their choice to manage the rights,

categories of rights or types of works and other

subject-matter of their choice, for the territories of

their choice, irrespective of the Member State of

nationality, residence or establishment of either the

collective management organisation or the rightholder;

in accordance with the statute of the collective

management organisation. Unless the collective

management organisation has objectively justified

reasons to refuse management, it shall be obliged to

manage such rights, categories of rights or types of

works and other subject-matter, provided that their

management falls within the scope of its activity;

(b) the right to grant licences for non-commercial uses of

any rights, categories of rights or types of works and

other subject-matter that they may choose;

(c) the right to terminate the authorisation to manage

rights, categories of rights or types of works and other

subject-matter granted by them to a collective

management organisation or to withdraw from a

collective management organisation any of the rights,

categories of rights or types of works and other

subject-matter of their choice, as determined pursuant

to paragraph (a), for the territories of their choice,

upon serving reasonable notice not exceeding six

months. The collective management organisation may

decide that such termination or withdrawal is to take

effect only at the end of the financial year;

Provided that if there are amounts due to a rightholder for

acts of exploitation which occurred before the termination of the

authorisation or the withdrawal of rights took effect, or under a

licence granted before such termination or withdrawal took effect,

the rightholder shall retain his rights under regulations 16,17, 26,

28, 35 and 40.

(2) A collective management organisation shall not restrict the

exercise of rights provided for under sub-regulation (1)(b) and (c),

by requiring, as a condition for the exercise of those rights, that the

management of rights or categories of rights or types of works and

other subject-matter which are subject to the termination or the

w i t hdr a w a l be e n tr ust e d t o ano th e r co ll e c ti ve m a n a gem e n t

organisation.

(3) In cases where a rightholder authorises a collective

management organisation to manage his rights, he shall give

consent specifically for each right or category of rights or type of

works and other subject-matter which he authorises the collective

management organisation to manage. Any such consent shall be

evidenced in documentary form.

(4) A collective management organisation shall inform

rightholders of their rights under sub-regulations (1) to (3), as well

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as of any conditions attached to the right set out in sub-regulation

(1)(b), before obtaining their consent to its managing any right or

category of rights or type of works and other subject-matter.

(5) A collective management organisation shall inform those

rightholders who have already authorised it of their rights under

sub-regulations (1) to (3), as well as of any conditions attached to

the right set out in sub-regulation (1)(b), by 10 October 2016.

Collective management organisations shall comply with

the following rules

(a) a collective management organisation shall accept

rightholders and entities representing rightholders,

including other collective management organisations

and associations of rightholders, as members if they

fulfil the membership requirements, which shall be

based on objective, transparent and non-discriminatory

criteria. Those membership requirements shall be

included in the statute or membership terms of the

collective management organisation and shall be made

publicly available. In cases where a collective

management organisation refuses to accept a request

for membership, it shall provide the rightholder with a

clear explanation of the reasons for its decision;

(b) the statute of a collective management organisation

shall provide for appropriate and effective mechanisms

for the participation of its members in the

organisation’s

decision-making

process.

The

representation of the different categories of members

in the decision-making process shall be fair and

balanced;

(c) a collective management organisation shall allow its

members to communicate with it by electronic means,

including for the purposes of exercising members’

rights;

(d) a collective management organisation shall keep

records of its members and shall regularly update

those records.

Collective management organisations shall comply with the

rules laid down in regulations 6(c), 28, 36(2) and 40 in respect of

rightholders who have a direct legal relationship by law or by way

of assignment, licence or any other contractual arrangement with

them but are not their members.

(1) A collective management organisation shall not operate

in Malta unless it submits a request to the Board to operate as a

collective management organisation and is approved as a collecting

society in accordance with the provisions of the Act.

(2) A request for approval of a collective management

organisation, which may also be submitted to the Board by

electronic means, shall include

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(a) a copy of the statutes of the collective management

organisation;

(b) the regulations of the collective management

organisation concerning the system of collection and

distribution of fees and equitable remuneration;

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

collective management organisation;

(d) a declaration stating the number of persons who have

entrusted or undertaken to entrust the collective

management organisation with the administration of

their economic rights at the time of the said

declaration;

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

management

organisations

regarding

the

administration of rights;

(f)

the contact details, including a postal address, fax

number or e-mail address, telephone number and the

legal address if this is not the same as the postal

address, for the purpose of receiving complaints or

requests for information; and

(g) the prescribed fee for a request for approval of a

collective management organisation.

(3) The Board shall approve the collective management

organisation unless

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

(2) 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 collective

management organisation 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 collective

management organisation is not able to fulfil its

functions for any reason including the absence of

economic and technical means, or of appropriate staff;

(d) another collective management organisation 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 collective management

organisation has different sets of tariffs, it may still be

allowed to operate in those areas for which the Board

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has approved the tariffs.

(4) In determining whether a collective management

organisation has the economic and technical means to fulfil its

functions as specified in sub-regulation (3)(c), the Board may

consider the following

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

the collective management organisation with the

administration of their economic rights, as well as any

plan or strategy by means of which the collective

management organisation 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 collective management organisation is in the

process of implementing;

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

the administration of that collective management

organisation or the volume of potential users of such

works;

(d) the capability of the collective management

organisation to administer the rights of its members in

other countries; and

(e) the ways and means whereby the collective

management organisation 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 collective

management organisation 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.

(6) 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

the approval of a collective management organisation, the Board

shall

(a) issue an acknowledgement of receipt of the

request to the applicant indicating therein a

reasonable time period for the processing of the

application

Provided that such period shall apply if all the

required documentation has been submitted and

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no written objection is received following the

publication of the request and the tariffs;

(b)

in the event that the required documentation or

information is not submitted with the

application, the Board shall issue a notification

to the applicant requesting the submission of the

missing documentation and information. The

Board shall inform the applicant that the time

period communicated in the acknowledgement

issued in terms of the preceding paragraph will

have to be reviewed and that the new time

period will be notified to the applicant upon

receipt of the missing documentation;

(c)

in the event that the missing documentation is

received by the Board, which documentation is

to be submitted with the prescribed fee, the

Board shall issue an acknowledgement to the

applicant indicating therein a reasonable time

period for the continued consideration of the

application subject to there not being any

written objections following the publication of

the request and the tariffs;

(d)

following the receipt of all the required

documentation, as soon as practicable, the Board

shall publish the request together with the

proposed tariffs in the Gazette and shall give

notice that, within sixty days after publication,

prospective users or their representatives may

file written objections, to the request or the

tariffs, with the Board. These objections shall be

accompanied by the prescribed fee and shall be

submitted on the basis of the provisions of

regulation 9(3);

(e)

the Board shall publish a notice in two local

newspapers thereby referring to the publication

of the request and tariffs in the Gazette; and

(f)

all publication costs in the Gazette and the local

newspapers shall be borne by the applicant.

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

regulation (1)

(a) in the event that no objections to the request and tariffs

are made, the Board shall approve or refuse the request

for operation of a collective management organisation

within the time period

indicated

in

the

acknowledgement issued by the Board in accordance

with sub-regulation (1)(a) and (c) as the case may be

and taking into consideration regulation 8(3), (4) and

(5); and

(b) in the event that objections to the request and tariffs

are made, the Board shall approve or refuse the request

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for operation of a collective management organisation

within a reasonable time period, taking into

consideration regulation 8(3), (4) and (5) and the

grounds of the objections received.

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

management organisation, the Board may call upon the collective

managem ent organisation and any person who has made an

objection under sub-regulation (1)(d) for further representations,

and shall provide the collective management organisation with the

opportunity to amend its request as deemed necessary.

(4) In considering any request for the operation of a collective

management organisation the Board may, after granting the

applicant a right to be heard, impose such proportionate conditions

upon said approval as it may deem appropriate.

(5) On taking its decision, the Board shall as soon as

practicable

(a) send a copy of its decision to the collective

management organisation that filed the request and to

any person who filed an objection; and

(b) publish its decision in the Gazette.

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

operation of a collective management organisation, the Board shall

also

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

reasons for the Board’s decision, to the collective

management organisation 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 until such time as

a new tariff is approved.

(2) Not less than six months and not more than eight months

before the lapse of the period of two calendar years from the date

when it was published in the Gazette, the collective management

organisation 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 collective management

organisation 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

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provisions of regulations 9(1) to (3) relating to tariffs.

(1) A collective management organisation, on behalf of,

and on the basis of the authorisation by, the authors and other

owners of copyright and of neighbouring rights that are its

members or that it otherwise represents on the basis of agreements

with local or foreign collective management organisations 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 a collective management

organisation shall have no right to

(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 collective

management organisation according to the provisions

of the Act or these regulations

Provided that, without prejudice to the provisions of sub-

regulation (3), nothing in this sub-regulation 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 collective management organisations.

(3) Companies, business concerns or other organisations which

perform the functions of collective management organisations

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according to the provisions of the Act and these regulations, shall

be considered collective management organisations for the

purposes of the Act and these regulations and shall be subject to the

relevant provisions thereof.

(1) A collective management organisation shall ensure

that a general assembly of members shall be convened at least once

a year.

(2) The general assembly of members shall decide on any

amendments to the statute and to the membership terms of the

collective management organisation, where those terms are not

regulated by the statute.

(3) The general assembly of members shall decide on the

appointment or dismissal of the directors, review their general

performance and approve their remuneration and other benefits

such as monetary and non-monetary benefits, pension awards and

entitlements, rights to other awards and rights to severance pay

Provided that, in a collective management organisation with

a dual board system, the general assembly of members shall not

de c i d e o n t he a p p o i nt m e n t o r d i s m i s s a l of m e m b e r s o f t h e

management board or approve their remuneration and other

benefits where the power to take such decisions is delegated to the

supervisory board.

(4) In accordance with the provisions laid down in Chapter 2 of

Title II, the general assembly of members shall decide at least on

the following issues

(a) the general policy on the distribution of amounts due

to rightholders;

(b) the general policy on the use of non-distributable

amounts;

(c) the general investment policy with regard to rights

revenue and to any income arising from the investment

of rights revenue;

(d) the general policy on deductions from rights revenue

and from any income arising from the investment of

rights revenue;

(e) the use of non-distributable amounts;

(f)

the risk management policy;

(g) the approval of any acquisition, sale or hypothecation

of immovable property;

(h) the approval of mergers and alliances, the setting-up of

subsidiaries, and the acquisition of other entities or

shares or rights in other entities;

(i)

the approval of taking out loans, granting loans or

providing security for loans.

(5) The general assembly of members may delegate the powers

listed in sub-regulation (4)(f), (g), (h) and (i), by a resolution or by

a provision in the statute, to the body exercising the supervisory

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function.

(6) The general assembly of members shall control the

activities of the collective management organisation by, at least,

deciding on the appointment and removal of the auditor and

approving the annual transparency report referred to in regulation

31

Provided that any alternative systems or modalities for the

a p p o i n t m e n t a n d r e m o v a l o f t h e a u d i t o r, s h a l l e n s u r e t h e

independence of the auditor from the persons who manage the

business of the collective management organisation.

(7) All members of the collective management organisation

shall have the right to participate in, and the right to vote at, the

general assembly of members.

(8)

(a) Every member of a collective management

organisation shall have the right to appoint any other

person or entity as a proxy holder to participate in, and

vote at, the general assembly of members on his behalf,

provided that such appointment does not result in a

conflict of interest which might occur, for example,

where the appointing member and the proxy holder

belong to different categories of rightholders within

the collective management organisation.

(b) Each proxy shall be valid for a single general assembly

of members. The proxy holder shall enjoy the same

rights in the general assembly of members as those to

which the appointing member would be entitled. The

proxy holder shall cast votes in accordance with the

instructions issued by the appointing member.

(9) Where a collective management organisation, by reason of

its legal form, does not have a general assembly of members, the

powers of that assembly are to be exercised by the body exercising

the supervisory function. The rules laid down in sub-regulations (1)

to (4) and (6) shall apply mutatis mutandis to such body exercising

the supervisory function.

(1) A collective management organisation shall have in

place a supervisory function for continuously monitoring the

activities and the performance of the duties of the persons who

manage the business of the organisation.

(2) The body exercising the supervisory function shall be

composed of the different categories of the members of the

collective management organisation in a fair and balanced manner.

(3) Each person exercising the supervisory function shall make

an annual individual statement on conflicts of interest, containing

the information referred to in regulation 14(2)(b) to the general

assembly of members.

(4) The body exercising the supervisory function shall meet

regularly and shall have at least the following powers

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(a) to exercise the powers delegated to it by the general

assembly of members, including under regulation

12(3) and (5);

(b) to monitor the activities and the performance of the

duties of the persons referred to in regulation 10,

including the implementation of the decisions of the

general assembly of members and, in particular, of the

general policies listed in regulation 12(4)(a) to (d).

(5) The body exercising the supervisory function shall report

on the exercise of its powers to the general assembly of members at

least once a year.

(1) A collective management organisation shall take all

necessary measures so that the persons who manage its business do

so in a sound, prudent and appropriate manner, using sound

administrative and accounting procedures and internal control

mechanisms.

(2)

(a) A collective management organisation shall put in

place and apply procedures to avoid conflicts of

interest, and where such conflicts cannot be avoided, to

identify, manage, monitor and disclose actual or

potential conflicts of interest in such a way as to

prevent them from adversely affecting the collective

interests of the rightholders whom the organisation

represents.

(b) The procedures referred to in the paragraph (a) shall

include an annual individual statement by each of the

persons referred to in sub-regulation (1) to the general

assembly of members, containing the following

information

(i)

any interests in the collective management

organisation;

(ii) any remuneration received in the preceding

financial year from the collective management

organisation, including in the form of pension

schemes, benefits in kind and other types of

benefits;

(iii) any amounts received in the preceding financial

year as a rightholder from the collective

management organisation;

(iv) a declaration concerning any actual or potential

conflict between any personal interests and those

of the collective management organisation or

between any obligations owed to the collective

management organisation and any duty owed to

any other natural or legal person.

Chapter 2

Management of Rights Revenue

(1) Collective management organisations shall comply

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with the rules laid down in sub-regulations (2) to (5).

(2) A collective management organisation shall be diligent in

the collection and management of rights revenue.

(3) A collective management organisation shall keep separate

in its accounts

(a) rights revenue and any income arising from the

investment of rights revenue; and

(b) any own assets it may have and income arising from

such assets, from management fees or from other

activities.

(4) A collective management organisation shall not be

permitted to use rights revenue or any income arising from the

investment of rights revenue for purposes other than distribution to

rightholders, except where it is allowed to deduct or offset its

management fees in compliance with a decision taken in

accordance with paragraph of regulation 12(4)(d) or to use the

rights revenue or any income arising from the investment of rights

revenue in compliance with a decision taken in accordance with

regulation 12(4).

(5) Where a collective management organisation invests rights

revenue or any income arising from the investment of rights

revenue, it shall do so in the best interests of the rightholders

w h o s e r i g h t s i t r ep r e se n t s , i n a c co r d a n c e w i t h t h e g e n e r a l

investment and risk management policy referred to in regulation

12(4)(c) and (f) and having regard to the following rules

(a) where there is any potential conflict of interest, the

collective management organisation shall ensure that

the investment is made in the sole interest of those

rightholders;

(b) the assets shall be invested in order to ensure the

security, quality, liquidity and profitability of the

portfolio as a whole;

(c) the assets shall be properly diversified in order to

avoid excessive reliance on any particular asset and

accumulations of risks in the portfolio as a whole.

(1) Where a rightholder authorises a collective

management organisation to manage his rights, the collective

management organisation is required to provide the rightholder

with information on management fees and other deductions from

the rights revenue and from any income arising from the investment

of rights revenue, before obtaining his consent to its managing his

rights.

(2) Deductions shall be reasonable in relation to the services

provided by the collective management organisation to

rightholders, including, where appropriate, the services referred to

in sub-regulation (4), and shall be established on the basis of

objective criteria.

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(3)

(a) Management fees shall not exceed the justified and

documented costs incurred by the collective

management organisation in managing copyright and

related rights.

(b) Moreover, the requirements applicable to the use and

the transparency of the use of amounts deducted or

offset in respect of management fees shall also apply

to any other deductions made in order to cover the

costs of managing copyright and related rights.

(4) Where a collective management organisation provides

social, cultural or educational services funded through deductions

from rights revenue or from any income arising from the

investment of rights revenue, such services shall be provided on the

basis of fair criteria, in particular as regards access to, and the

extent of, those services.

(1) Without prejudice to regulation 19(3) and regulation

35, a collective management organisation shall regularly, diligently

and accurately distribute and pay amounts due to rightholders in

accordance with the general policy on distribution referred to in

regulation 12(4)(a).

(2) Collective management organisations or their members who

are entities representing rightholders shall distribute and pay those

amounts to rightholders as soon as possible but no later than nine

months from the end of the financial year in which the rights

revenue was collected, unless objective reasons relating in

particular to reporting by users, identification of rights,

rightholders or matching of information on works and other

subject-matter with rightholders prevent the collective management

organisation or, where applicable, its members from meeting that

deadline.

(3) Where the amounts due to rightholders cannot be

distributed within the deadline set in sub-regulation (2) because the

relevant rightholders cannot be identified or located and the

exception to that deadline does not apply, those amounts shall be

kept separate in the accounts of the collective management

organisation.

(4)

(a) The collective management organisation shall take all

necessary measures, consistent with sub-regulations

(1) and (2), to identify and locate the rightholders. In

particular, at the latest three months after the expiry of

the deadline set in sub-regulation (2), the collective

m a n a g e m e n t o rg a n i s a t i o n s h a l l m a k e a v a i l a b l e

information on works and other subject-matter for

which one or more rightholders have not been

identified or located to

(i)

the rightholders that it represents or the entities

representing rightholders, where such entities

are members of the collective management

organisation; and

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(ii) all collective management organisations with

which it has concluded representation

agreements.

(b) The information referred to in the paragraph (a) shall

include, where available, the following

(i) the title of the work or other subject-matter;

(ii) the name of the rightholder;

(iii) the name of the relevant publisher or producer;

and

(iv) any other relevant information available which

could assist in identifying the rightholder.

(c) The collective management organisation shall also

verify the records referred to in regulation 6(d) and

other readily available records. If the above-mentioned

measures fail to produce results, the collective

management organisation shall make that information

available to the public at the latest one year after the

expiry of the three-month period.

(5) Where the amounts due to rightholders cannot be

distributed after three years from the end of the financial year in

which the collection of the rights revenue occurred, and provided

that the collective management organisation has taken all necessary

measures to identify and locate the rightholders referred to in sub-

regulation (4), those amounts shall be deemed non-distributable.

(6) The general assembly of members of a collective

management organisation shall decide on the use of the non-

distributable amounts in accordance with regulation 12(4)(b),

without prejudice to the right of rightholders to claim such amounts

from the collective management organisation in accordance with

the Civil Code on the statute of limitations of claims.

(7) Collective management organisations may limit or

determine the permitted uses of non-distributable amounts, inter

alia, by ensuring that such amounts are used in a separate and

independent way in order to fund social, cultural and educational

activities for the benefit of rightholders.

Chapter 3

Management of rights on behalf of other collective management

organisations

A collective management organisation shall not

discriminate against any rightholder whose rights it manages under

a representation agreement, in particular with respect to applicable

tariffs, management fees, and the conditions for the collection of

the rights revenue and distribution of amounts due to rightholders.

(1) A collective management organisation shall not make

deductions, other than in respect of management fees, from the

rights revenue derived from the rights it manages on the basis of a

representation agreement, or from any income arising from the

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investment of that rights revenue, unless the other collective

management organisation that is party to the representation

agreement expressly consents to such deductions.

(2) The collective management organisation shall regularly,

diligently and accurately distribute and pay amounts due to other

collective management organisations.

(3) The collective management organisation shall carry out

such distribution and payments to the other collective management

organisation as soon as possible but no later than nine months from

the end of the financial year in which the rights revenue was

collected, unless objective reasons relating in particular to

reporting by users, identification of rights, rightholders or

matching of information on works and other subject-matter with

rightholders prevent the collective management organisation from

meeting that deadline.

(4) The other collective management organisation, or, where it

has as members entities representing rightholders, those members,

shall distribute and pay the amounts due to rightholders as soon as

possible but no later than six months from receipt of those amounts,

unless objective reasons relating in particular to reporting by users,

identification of rights, rightholders or matching of information on

works and other subject-matter with rightholders prevent the

collective management organisation or, where applicable, its

members from meeting that deadline.

Chapter 4

Relations with users

(1) Collective management organisations and users shall

conduct negotiations for the licensing of rights in good faith.

Collective management organisations and users shall provide each

other with all necessary information.

(2) Licensing terms shall be based on objective and non-

discriminatory criteria. When licensing rights, collective

management organisations shall not be required to use, as a

precedent for other online services, licensing terms agreed with a

user where the user is providing a new type of online service which

has been available to the public in the European Union for less than

three years.

(3) Rightholders shall receive appropriate remuneration for the

use of their rights. Tariffs for exclusive rights and rights to

remuneration shall be reasonable in relation to, inter alia, the

economic value of the use of the rights in trade, taking into account

the nature and scope of the use of the work and other subject-

matter, as well as in relation to the economic value of the service

provided by the collective management organisation. Collective

management organisations shall inform the user concerned of the

criteria used for the setting of those tariffs.

(4) Collective management organisations shall reply without

undue delay to requests from users, indicating, inter alia, the

information needed in order for the collective management

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organisation to offer a licence.

(5) Upon receipt of all relevant information, the collective

management organisation shall, without undue delay, either offer a

licence or provide the user with a reasoned statement explaining

why it does not intend to license a particular service.

(6) A collective management organisation shall allow users to

communicate with it by electronic means, including, where

appropriate, for the purpose of reporting on the use of the licence.

(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 collective management organisation that concern the exercise

of their rights.

(2) Any collective management organisation shall 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

collective management organisation that are in current

use.

(3) A request for information made in terms of sub-regulations

(1) and (2) shall be made either to the collective management

organisation directly or together with the payment of the prescribed

fee to the competent authority falling within the Ministry

responsible for intellectual property. The competent authority will

inform the Board of the request. The Board shall consider the

request and if found reasonable in terms of sub-regulation (2), the

Board shall

(a) provide access to the information required if this has

already been made available to the Board by the

collective management organisation; or

(b) request such information from the collective

management organisation and forward the information

obtained to the person requesting it.

(4) The competent authority shall cooperate with the

designated entity in accordance with article 10(3) of the Services

(Internal Market) Act to ensure that general information on the

requirements applicable in other Member States relating to access

to, and exercise of collective management organisation and the

means or redress available in the case of a dispute concerning a

recipient of the services of a collective management organisation,

is easily accessible to providers and recipients.

Authors and other owners of copyright and of neighbouring

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

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residence or their headquarters outside Malta and whose rights are

administered by a collective management organisation 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 collective management organisation and who or

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

headquarters in, Malta.

(1) Any collective management organisation

shall

immediately furnish the Board with a copy of

(a) any amendment to its statutes or regulations mentioned

in regulation 8(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

collective management organisation;

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

report concerning the operation of the collective

management organisation.

(2) Any collective management organisation 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 collective management

organisation shall furnish any further information that is necessary

to determine whether or not the operation of the collective

m a n a g e m e n t o rg a n i s a t i o n c o n f o r m s t o t h e s t a t u t e s o f t h e

organisation and to the provisions of the Act and these regulations

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

collective management organisation is ensured. In requesting such

information the Board shall fix a reasonable time limit as it deems

appropriate for the collective management organisation to comply

with its request.

The Board shall revoke the authorisation of companies,

business concerns or other organisations to act as a collective

management organisation if any ground for which the approval of

the collective management organisation would have been denied as

specified in regulation 9(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

collective management organisation repeatedly violates its statutes,

its regulations mentioned in regulation 8(2) or the provisions of the

Act or of these regulations.

(1) Users shall provide a collective management

organisation, within an agreed or pre-established time and in an

agreed or pre-established format, with such relevant information at

their disposal on the use of the rights represented by the collective

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management organisation as is necessary for the collection of rights

revenue and for the distribution and payment of amounts due to

rightholders. When deciding on the format for the provision of such

information, collective management organisations and users shall

take into account, as far as possible, voluntary industry standards.

(2) Users who carry out acts authorised by a collective

management organisation or acts for which, although authorisation

is not needed, equitable remuneration is to be paid to a collective

management organisation, shall

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

collective management organisation, of the acts

authorised or for which equitable remuneration is to be

paid;

(b) if required, give the collective management

organisation all information available to them

concerning the acts performed in respect of the works

concerned.

Chapter 5

Transparency and Reporting

(1) Without prejudice to sub-regulation (2) of this

regulation and regulations 27 and 35(2), a collective management

organisation shall make available, not less than once a year, to each

rightholder to whom it has attributed rights revenue or made

payments in the period to which the information relates, at least the

following information

(a) any contact details which the rightholder has

authorised the collective management organisation to

use in order to identify and locate the rightholder;

(b) the rights revenue attributed to the rightholder;

(c) the amounts paid by the collective management

organisation to the rightholder per category of rights

managed and per type of use;

(d) the period during which the use took place for which

amounts were attributed and paid to the rightholder,

unless objective reasons relating to reporting by users

prevent the collective management organisation from

providing this information;

(e) deductions made in respect of management fees;

(f)

deductions made for any purpose other than in respect

of management fees, including those that may be

required by national law for the provision of any

social, cultural or educational services;

(g) any rights revenue attributed to the rightholder which

is outstanding for any period.

(2) Where a collective management organisation attributes

rights revenue and has as members entities which are responsible

for the distribution of rights revenue to rightholders, the collective

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management organisation shall provide the information listed in

sub-regulation (1) to those entities, provided that they do not have

that information in their possession. The entities shall make at least

the information listed in paragraph 1 available, not less than once a

year, to each rightholder to whom they have attributed rights

revenue or made payments in the period to which the information

relates.

A collective management organisation shall make at least

the following information available, not less than once a year and

by electronic means, to collective management organisations on

whose behalf it manages rights under a representation agreement,

for the period to which the information relates

(a) the rights revenue attributed, the amounts paid by the

collective management organisation per category of

rights managed, and per type of use, for the rights it

manages under the representation agreement, and any

rights revenue attributed which is outstanding for any

period;

(b) deductions made in respect of management fees;

(c) deductions made for any purpose other than in respect

of management fees as referred to in regulation 19;

(d) information on any licences granted or refused with

regard to works and other subject-matter covered by

the representation agreement;

(e) resolutions adopted by the general assembly of

members in so far as those resolutions are relevant to

the management of the rights under the representation

agreement.

Without prejudice to the provisions of regulation 32, in

response to a duly justified request, a collective management

organisation shall make at least the following information available

by electronic means and without undue delay to any collective

management organisation on whose behalf it manages rights under

a representation agreement or to any rightholder or to any user

(a) the works or other subject-matter it represents, the

rights it manages, directly or under representation

agreements, and the territories covered; or

(b) where, due to the scope of activity of the collective

management organisation, such works or other

subject-matter cannot be determined, the types of

works or of other subject-matter it represents, the

rights it manages and the territories covered.

(1) A collective management organisation shall make

public at least the following information

(a) its statute;

(b) its membership terms and the terms of termination of

authorisation to manage rights, if these are not

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included in the statute;

(c) standard licensing contracts and standard applicable

tariffs, including discounts;

(d) the list of the persons referred to in regulation 14;

(e) its general policy on distribution of amounts due to

rightholders;

(f)

its general policy on management fees;

(g) its general policy on deductions, other than in respect

of management fees, from rights revenue and from any

income arising from the investment of rights revenue,

including deductions for the purposes of social,

cultural and educational services;

(h) a list of the representation agreements it has entered

into, and the names of the collective management

organisations with which those representation

agreements have been concluded;

(i)

the general policy on the use of non-distributable

amounts;

(j)

the complaint handling and dispute resolution

procedures available in accordance with regulations

40, 41 and 42.

(2) The collective management organisation shall publish, and

keep up to date, on its public website the information referred to in

sub-regulation (1).

30.(1)(a) A collective management organisation, irrespective of

its legal form under national law, shall draw up and

make public an annual transparency report, including

the special report referred to in sub-regulation (3), for

each financial year no later than eight months

following the end of that financial year.

(b) The collective management organisation shall publish

on its website the annual transparency report, which

shall remain available to the public on that website for

at least five years.

(2) The annual transparency report shall contain at least the

information set out in the First Schedule.

(3) A special report shall address the use of the amounts

deducted for the purposes of social, cultural and educational

services and shall contain at least the information set out in

paragraph 3 of the First Schedule.

(4)

(a) The accounting information included in the annual

transparency report shall be audited by one or more

p e r s o n s e m p o w e r e d b y l aw t o a u d i t a c c o u n t s i n

accordance with Directive 2006/43/EC of the European

Parliament and of the Council.

(b) The audit report, including any qualifications thereto,

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shall be reproduced in full in the annual transparency

report.

(c) For the purposes of this sub-regulation, accounting

information shall comprise the financial statements

referred to in paragraph 1(a) of the First Schedule and

any financial information referred to in paragraphs

1(g) and (h) and 2 of the First Schedule.

Title III

Multi-Territorial Licensing of Online Rights in Musical Works

by Collective Management Organisations

(1) A collective management organisation, which is

established in Malta, which grants multi-territorial licences for

online rights in musical works, shall have sufficient capacity to

process electronically, in an efficient and transparent manner, data

needed for the administration of such licences, including for the

purposes of identifying the repertoire and monitoring its use,

invoicing users, collecting rights revenue and distributing amounts

due to rightholders.

(2) For the purposes of sub-regulation (1), a collective

management organisation shall comply, at least, with the following

conditions

(a) to have the ability to identify accurately the musical

works, wholly or in part, which the collective

management organisation is authorised to represent;

(b) to have the ability to identify accurately, wholly or in

part, with respect to each relevant territory, the rights

and their corresponding rightholders for each musical

work or share therein which the collective

management organisation is authorised to represent;

(c) to make use of unique identifiers in order to identify

rightholders and musical works, taking into account,

as far as possible, voluntary industry standards and

practices developed at international or European

Union level;

(d) to make use of adequate means in order to identify and

resolve in a timely and effective manner

inconsistencies in data held by other collective

management organisations granting multi-territorial

licences for online rights in musical works.

(1) A collective management organisation which grants

multi-territorial licences for online rights in musical works shall

provide to online service providers, to rightholders whose rights it

represents and to other collective management organisations, by

electronic means, in response to a duly justified request, up-to-date

information allowing the identification of the online music

repertoire it represents. This shall include

(a) the musical works represented;

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(b) the rights represented wholly or in part; and

(c) the territories covered.

(2) A collective management organisation may take reasonable

measures, where necessary, to protect the accuracy and integrity of

the data, to control their reuse and to protect commercially

sensitive information.

(1) A collective management organisation which grants

multi-territorial licences for online rights in musical works shall

have in place arrangements to enable rightholders, other collective

management organisations and online service providers to request a

correction of the data referred to in the list of conditions under

regulation 31(2) or the information provided under regulation 32,

where such rightholders, collective management organisations and

online service providers, on the basis of reasonable evidence,

believe that the data or the information are inaccurate in respect of

th eir onl ine ri ght s in mu sical works. Where the claims are

sufficiently substantiated, the collective management organisation

shall ensure that the data or the information are corrected without

undue delay.

(2) A collective management organisation shall provide

rightholders whose musical works are included in its own music

repertoire and rightholders who have entrusted the management of

their online rights in musical works to it in accordance with

regulation 38 with the means of submitting to it in electronic form

information concerning their musical works, their rights in those

works and the territories in respect of which the rightholders

authorise the organisation. When doing so, a collective

management organisation and the rightholders shall take into

account, as far as possible, voluntary industry standards or

practices regarding the exchange of data developed at international

or Union level, allowing rightholders to specify the musical work,

wholly or in part, the online rights, wholly or in part, and the

territories in respect of which they authorise the organisation.

(3) Where a collective management organisation mandates

another collective management organisation to grant multi-

territorial licences for the online rights in musical works under

regulations 36 and 37, the mandated collective management

organisation shall also apply sub-regulation (2) of this regulation

with respect to the rightholders whose musical works are included

in the repertoire of the mandating collective management

organisation, unless the collective management organisations agree

otherwise.

(1) A collective management organisation shall monitor

the use of online rights in musical works which it represents,

wholly or in part, by online service providers to which it has

granted a multi-territorial licence for those rights.

(2) A collective management organisation shall offer online

service providers the possibility of reporting by electronic means

the actual use of online rights in musical works and online service

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providers shall accurately report the actual use of those works. A

collective management organisation shall offer the use of at least

one method of reporting which takes into account voluntary

industry standards or practices developed at international or

European Union level for the electronic exchange of such data. A

collective management organisation may refuse to accept reporting

by the online service provider in a proprietary format if the

organisation allows for reporting using an industry standard for the

electronic exchange of data.

(3) A collective management organisation shall invoice the

online service provider by electronic means. A collective

management organisation shall offer the use of a least one format

which takes into account voluntary industry standards or practices

developed at international or European Union level. The invoice

shall identify the works and rights which are licensed, wholly or in

part, on the basis of the data referred to in the list of conditions

under regulation 31(2), and the corresponding actual uses, to the

extent that this is possible on the basis of the information provided

by the online service provider and the format used to provide that

information. The online service provider may not refuse to accept

the invoice because of its format if the collective management

organisation is using an industry standard.

(4) A collective management organisation shall invoice the

online service provider accurately and without delay after the

actual use of the online rights in that musical work is reported,

except where this is not possible for reasons attributable to the

online service provider.

(5) A collective management organisation shall have in place

adequate arrangements enabling the online service provider to

challenge the accuracy of the invoice, including when the online

service provider receives invoices from one or more collective

management organisations for the same online rights in the same

musical work.

(1) Without prejudice to the provisions of sub-regulation

(3), a collective management organisation which grants multi-

territorial licences for online rights in musical works shall

distribute amounts due to rightholders accruing from such licences

accurately and without delay after the actual use of the work is

reported, except where this is not possible for reasons attributable

to the online service provider.

(2) Without prejudice to the provisions of sub-regulation (3), a

collective management organisation shall provide at least the

following information to rightholders together with each payment it

makes under sub-regulation (1)

(a) the period during which the uses took place for which

amounts are due to rightholders and the territories in

which the uses took place;

(b) the amounts collected, deductions made and amounts

distributed by the collective management organisation

for each online right in any musical work which

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rightholders

have

authorised

the

collective

management organisation, wholly or in part, to

represent;

(c) the amounts collected for rightholders, deductions

made, and amounts distributed by the collective

management organisation in respect of each online

service provider.

(3) Where a collective management organisation mandates

another collective management organisation to grant multi-

territorial licences for the online rights in musical works under

regulations 36 and 37, the mandated collective management

organisation shall distribute the amounts referred to in sub-

regulation (1) accurately and without delay, and shall provide the

information referred to in sub-regulation (2) to the mandating

collective management organisation. The mandating collective

management organisation shall be responsible for the subsequent

distribution of such amounts and the provision of such information

to rightholders, unless the collective management organisations

agree otherwise.

(1) Any representation agreement between collective

management organisations whereby a collective management

organisation mandates another collective management organisation

to grant multi-territorial licences for the online rights in musical

works in its own music repertoire shall be of a non-exclusive

nature. The mandated collective management organisation shall

manage those online rights on a non-discriminatory basis.

(2) The mandating collective management organisation shall

inform its members of the main terms of the agreement, including

its duration and the costs of the services provided by the mandated

collective management organisation.

(3) The mandated collective management organisation shall

inform the mandating collective management organisation of the

main terms according to which the latter’s online rights are to be

licensed, including the nature of the exploitation, all provisions

which relate to or affect the licence fee, the duration of the licence,

the accounting periods and the territories covered.

(1) Where a collective management organisation which

does not grant or offer to grant multi-territorial licences for the

online rights in musical works in its own repertoire requests

another collective management organisation to enter into a

representation agreement to represent those rights, the requested

collective management organisation shall be required to agree to

such a request if it is already granting or offering to grant multi-

territorial licences for the same category of online rights in musical

works in the repertoire of one or more other collective management

organisations.

(2) The requested collective management organisation shall

respond to the requesting collective management organisation in

writing and without undue delay.

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(3) Without prejudice to sub-regulations (5) and (6), the

requested collective management organisation shall manage the

represented repertoire of the requesting collective management

organisation on the same conditions as those which it applies to the

management of its own repertoire.

(4) The requested collective management organisation shall

include the represented repertoire of the requesting collective

management organisation in all offers it addresses to online service

providers.

(5) The management fee for the service provided by the

requested collective management organisation to the requesting

organisation shall not exceed the costs reasonably incurred by the

requested collective management organisation.

(6) The requesting collective management organisation shall

make available to the requested collective management

organisation information relating to its own music repertoire

required for the provision of multi-territorial licences for online

rights in musical works. Where information is insufficient or

provided in a form that does not allow the requested collective

management organisation to meet the requirements of this Title, the

requested collective management organisation shall be entitled to

c h a rg e f o r t h e c o s t s r e a s o n a b l y i n c u r r e d i n m e e t i n g s u c h

requirements or to exclude those works for which information is

insufficient or cannot be used.

Where a collective management organisation does not grant

or offer to grant multi-territorial licences for online rights in

musical works or does not allow another collective management

organisation to represent those rights for such purpose by 10 April

2017, rightholders who have authorised that collective management

organisation to represent their online rights in musical works can

withdraw from that collective management organisation the online

rights in musical works for the purposes of multi-territorial

licensing in respect of all territories without having to withdraw the

online rights in musical works for the purposes of mono-territorial

licensing, so as to grant multi-territorial licences for their online

rights in musical works themselves or through any other party they

authorise or through any collective management organisation

complying with the requirements under this Title.

The requirements under this Title shall not apply to

collective management organisations when they grant, on the basis

of the voluntary aggregation of the required rights, in compliance

with the competition rules under Articles 101 and 102 of the Treaty

on the Functioning of the European Union, a multi-territorial

licence for the online rights in musical works required by a

broadcaster to communicate or make available to the public its

radio or television programmes simultaneously with or after their

initial broadcast as well as any online material, including previews,

produced by or for the broadcaster which is ancillary to the initial

broadcast of its radio or television programme.

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Title IV

Enforcement Measures

(1) Collective management organisations shall make

a v a i l a b l e t o t h e i r m e m b er s , a n d t o c o l l ec t i v e m a n a g e m e n t

o rg a n i s a t i o n s o n wh o s e b e h a l f t he y m a n a g e r i g h t s u n d e r a

representation agreement, effective and timely procedures for

dealing with complaints, particularly in relation to authorisation to

manage rights and termination or withdrawal of rights, membership

terms, the collection of amounts due to rightholders, deductions

and distributions.

(2) Collective management organisations shall respond in

writing to complaints by members or by collective management

o rg a n i s a t i o n s o n wh o s e b e h a l f t he y m a n a g e r i g h t s u n d e r a

representation agreement. Where the collective management

organisation rejects a complaint, it shall give reasons.

(1) Disputes

between

collective

management

organisations, members of collective management organisations,

rightholders or users may be submitted to either mediation or

arbitration, as agreed to by the parties to the dispute.

(2) For the purposes of Title III, the following disputes relating

to a collective management organisation established in Malta which

grants or offers to grant multi-territorial licences for online rights

in musical works can be submitted to either mediation or

arbitration, as agreed to by the parties to the dispute

(a) disputes with an actual or potential online service

provider regarding the application of regulations 20,

32, 33 and 34;

(b) disputes with one or more rightholders regarding the

application of regulations 32, 33, 34, 35, 36, 37 and

38;

(c) disputes with another collective management

organisation regarding the application of regulations

32, 33, 34, 35, 36 and 37.

(1) Disputes

between

collective

management

organisations and users concerning, in particular, existing and

proposed licensing conditions or a breach of contract shall be

submitted to the First Hall, Civil Court.

(2) Regulations 40 and 41 and sub-regulation (1) of this

regulation shall be without prejudice to the right of parties to assert

and defend their rights by bringing an action before a court.

(1) Compliance by collective management organisations

established in Malta with the provisions of national law shall be

monitored by the Copyright Board.

(2) Members of a collective management organisation,

rightholders, users, collective management organisations and other

interested parties shall notify the Copyright Board of activities or

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circumstances which, in their opinion, constitute a breach of the

provisions herein.

(3) A notification as per sub-regulation (2) shall clearly outline

the activities or circumstances being claimed as being in breach of

the provisions of these regulations. As soon as possible upon

receiving such a notification, the Copyright Board shall -

(a) forward a copy of this notification to the party

allegedly carrying out a breach of the provisions;

(b) inform the party of the penalty of being found

in

breach of such provisions;

(c)

request the party receiving this notification to file its

reaction within sixty days from the date of service of

the notification.

(4)

The reply to the Copyright Board shall include

(a) a clear indication of whether or not the party who is

allegedly in breach of these provisions is in agreement

with the notification;

(b) if the party allegedly in breach of the provisions of this

legislation is not in agreement with the notification,

detailed grounds upon which the party is basing its

disagreement.

(5) Non-observance of the deadline given by the Copyright

Board or the above requirements shall render the reply

inadmissible. As considered appropriate and where a breach is

considered to have taken place, the Copyright Board may serve a

compliance notice on that collective management organisation.

(6)

A compliance notice -

(a) shall state that the Board considers that the collective

management organisation has not complied with a

requirement imposed by the Act or its regulations;

(b) shall specify the provision imposing the requirement

and the nature of the non-compliance;

(c) may request the collective management organisation,

where the non-compliance is continuing, to end it

within a specific period of time;

(d) for the purpose of ensuring compliance by the

collective management organisation with the

requirement, may request the collective management

organisation to do, or refrain from doing, anything

specified in the notice;

(e) may request the collective management organisation to

give to the Board a written undertaking that non-

compliance with the requirement will not be repeated;

and

(f)

shall inform the collective management organisation

that failing to comply may result in an revocation

notice as per sub-regulation (7) or a penalty as per sub-

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regulation (8).

(7) If the Board is satisfied that a collective management

organisation has failed to comply with a request included in a

compliance notice under sub-regulation (6)(c) or (d), or with an

undertaking given in compliance with a request so included under

sub-regulation (6)(e), the Board may serve an revocation notice on

the collective management organisation or else impose a penalty.

(8) In deciding whether to serve a revocation notice or penalty

notice the Board must have regard to the nature of the failure of

compliance.

(9)

A penalty may comprise of either -

(a) a sum not exceeding five thousand euro (€5,000); or

(b) a sum not exceeding five hundred euro (€500) together

with a sum not exceeding fifty euro (€50) for each day

that the collective management organisation continues

to fail to comply with its obligations under these

regulations, not exceeding in total five thousand euro

(€5,000).

(10) A revocation notice or penalty notice shall be in writing and

shall -

(a) state the grounds on which the Board has deemed that

the collective management organisation has failed to

comply with the request or undertaking referred to in

the compliance notice;

(b) inform the collective management organisation that

the board will be revoking the authorisation to act as a

collective management organisation or that the board

will be imposing a penalty within thirty working days

from the date of service of the notice unless an appeal

is brought as per sub-regulation (9).

(11) The collective management organisation may, within thirty

days from the date of service of the revocation notice or penalty

notice, appeal against the revocation or penalty to the Court of

Appeal.

(12) If the collective management organisation brings an appeal

which is unsuccessful, when the appeal is finally determined, the

revocation shall take effect or the penalty shall be imposed as the

case may be.

(1) A request for information received from a competent

authority of another Member State, designated for that purpose,

concerning matters relevant to the application of these regulations,

in particular with regard to the activities of collective management

organisations established in Malta, is responded to without undue

delay by the Copyright Board, provided that the request is duly

justified.

(2) Where the Copyright Board considers that a collective

management organisation established in another Member State but

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acting in Malta may not be complying with the provisions of the

n a t i o n a l l a w o f t h e M e m b e r St a t e i n w h i c h t h a t c o l l e c t i v e

management organisation is established, it may transmit all

relevant information to the competent authority of the Member

St a t e i n w h i c h t h e c o l l e c t i v e m a n a g e m e n t o rg a n i s a t i o n i s

established, accompanied where appropriate by a request to that

authority that it take appropriate action within its competence. The

requested competent authority shall provide a reasoned reply

within three months.

(3) Matters as referred to in sub-regulation (2) may also be

referred by the Copyright Board making such a request to the

expert group established in accordance with Article 41 of Directive

2014/26/EU.

First Schedule

1. Information to be provided in the annual transparency

report referred to in Regulation 30(2)

(a) financial statements comprising a balance-sheet or a

statement of assets and liabilities, an income and

expenditure account for the financial year and a cash-

flow statement;

(b) a report on the activities in the financial year;

(c) information on refusals to grant a licence pursuant to

regulation 20(3);

(d) a description of the legal and governance structure of

the collective management organisation;

(e) information on any entities directly or indirectly

owned or controlled, wholly or in part, by the

collective management organisation;

(f)

information on the total amount of remuneration paid

to the persons referred in regulations 13(3) and 14 in

the previous year, and on other benefits granted to

them;

(g) the financial information referred to in paragraph 2 of

this Schedule;

(h) a special report on the use of any amounts deducted for

the purposes of social, cultural and educational

services, containing the information referred to in

paragraph 3 of this Schedule.

2. Financial information to be provided in the annual

transparency report

(a) financial information on rights revenue, per category

of rights managed and per type of use (e.g.

broadcasting, online, public performance), including

information on the income arising from the investment

of rights revenue and the use of such income (whether

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it is distributed to rightholders or other collective

management organisations, or otherwise used);

(b) financial information on the cost of rights management

and other services provided by the collective

management organisation to rightholders, with a

comprehensive description of at least the following

items

(i) all operating and financial costs, with a

breakdown per category of rights managed and,

where costs are indirect and cannot be attributed

to one or more categories of rights, an

explanation of the method used to allocate such

indirect costs;

(ii) operating and financial costs, with a breakdown

per category of rights managed and, where costs

are indirect and cannot be attributed to one or

more categories of rights, an explanation of the

method used to allocate such indirect costs, only

with regard to the management of rights,

including management fees deducted from or

offset against rights revenue or any income

arising from the investment of rights revenue in

accordance with regulations 15(4) and 16(1), (2)

and (3);

(iii) operating and financial costs with regard to

services other than the management of rights,

but including social, cultural and educational

services;

(iv) resources used to cover costs;

(v) deductions made from rights revenues, with a

breakdown per category of rights managed and

per type of use and the purpose of the deduction,

such as costs relating to the management of

rights or to social, cultural or educational

services;

(vi) the percentages that the cost of the rights

management and other services provided by the

collective

management

organisation

to

rightholders represents compared to the rights

revenue in the relevant financial year, per

category of rights managed, and, where costs are

indirect and cannot be attributed to one or more

categories of rights, an explanation of the

method used to allocate such indirect costs;

(c) financial information on amounts due to rightholders,

with a comprehensive description of at least the

following items

(i)

the total amount attributed to rightholders, with

a breakdown per category of rights managed and

type of use;

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(ii) the total amount paid to rightholders, with a

breakdown per category of rights managed and

type of use;

(iii) the frequency of payments, with a breakdown

per category of rights managed and per type of

use;

(iv) the total amount collected but not yet attributed

to rightholders, with a breakdown per category

of rights managed and type of use, and

indicating the financial year in which those

amounts were collected;

(v) the total amount attributed to but not yet

distributed to rightholders, with a breakdown per

category of rights managed and type of use, and

indicating the financial year in which those

amounts were collected;

(vi) where a collective management organisation has

not carried out the distribution and payments

within the deadline set in regulation 17(1), the

reasons for the delay;

(vii)

the total non-distributable amounts, along with

an explanation of the use to which those

amounts have been put;

(d) information on relationships with other collective

management organisations, with a description of at

least the following items

(i)

amounts received from other collective

management organisations and amounts paid to

other collective management organisations, with

a breakdown per category of rights, per type of

use and per organisation;

(ii) management fees and other deductions from the

rights revenue due to other collective

management organisations, with a breakdown

per category of rights, per type of use and per

organisation;

(iii) management fees and other deductions from the

amounts paid by other collective management

organisations, with a breakdown per category of

rights and per organisation;

(iv) amounts distributed directly to rightholders

originating from other collective management

organisations, with a breakdown per category of

rights and per organisation.

3. Information to be provided in the special report referred to

in regulation 30(3)

(a) the amounts deducted for the purposes of social,

cultural and educational services in the financial year,

with a breakdown per type of purpose and, for each

type of purpose, with a breakdown per category of

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rights managed and per type of use;

(b) an explanation of the use of those amounts, with a

breakdown per type of purpose including the costs of

managing amounts deducted to fund social, cultural

and educational services and of the separate amounts

used for social, cultural and educational services.

Second Schedule

Schedule of Fees

i.

Fee for a request for approval of a collective

management organisation (regulation 8)

€400

ii. Fee for submission of objection to the request for

the tariffs (regulation 9(1)(d))

€100

iii. Fee for submission of missing documentation

(regulation 9(1)(c))

€50

iv. Fee for submission of a new set of tariffs

(regulation 10)

€200

v. Fee for request for information (regulation 21(3))

€50