prop · H303181 · 2016-06-14 00:00:00 — Collective management organisations should offer their members specific procedures for handling complaints. Those procedures should also be made available to other rightholders directly represented by the organisation and to other collective management organisations on whose behalf it manages rights under a representation agreement. Furthermore, Member States should be able to provide that disputes between collective management organisations, their members, rightholders or users as to the application of this Directive can be submitted to a rapid, independent and impartial alternative dispute resolution procedure. In particular, the effectiveness of the rules on multi-terri torial licensing of online rights in musical works could be undermined if disputes between collective management organisations and other parties were not L 84/81 resolved quickly and efficiently. As a result, it is appro priate to provide, without prejudice to the right of access to a tribunal, for the possibility of easily accessible, efficient and impartial out-of-court procedures, such as mediation or arbitration, for resolving conflicts between, on the one hand, collective management organisations granting multi-territorial licences and, on the other, online service providers, rightholders or other collective management organisations. This Directive neither prescribes a specific in which such alternative dispute resolution should be organised, nor determines which body should carry it out, provided that its inde pendence, impartiality and efficiency are guaranteed. Finally, it is also appropriate to require that Member States have independent, impartial and effective dispute resolution procedures, via bodies possessing expertise in intellectual property law or via courts, suitable for settling commercial disputes between collective management organisations and users on existing or proposed licensing conditions or on a breach of contract. (50)Member States should establish appropriate procedures by means of which it will be possible to monitor compliance by collective management organisations with this Directive. While it is not appropriate for this Directive to restrict the choice of Member States as to competent authorities, nor as regards the ex-ante or ex- post nature of the control over collective management organisations, it should be ensured that such authorities are capable of addressing in an effective and timely any concern that may arise in the application of this Directive. Member States should not be obliged to set up new competent authorities. Moreover, it should also be possible for members of a collective management organisation, rightholders, users, collective management organisations and other interested parties to notify a competent authority in respect of activities or circum stances which, in their opinion, constitute a breach of law by collective management organisations and, where relevant, users. Member States should ensure that competent authorities have the power to impose sanctions or measures where provisions of national law implementing this Directive are not complied with. This Directive does not provide for specific types of sanctions or measures, provided that they are effective, propor tionate and dissuasive. Such sanctions or measures may include orders to dismiss directors who have acted negli gently, inspections at the premises of a collective management organisation or, in cases where an authori sation is issued for an organisation to operate, the with drawal of such authorisation. This Directive should remain neutral as regards the prior authorisation and supervision regimes in the Member States, including a requirement for the representativeness of the collective management organisation, in so far as those regimes are compatible with Union law and do not create an obstacle to the full application of this Directive. (51)In order to ensure that the requirements for multi-terri torial licensing are complied with, specific provisions on the monitoring of their implementation should be laid down. The competent authorities of the Member States and the Commission should cooperate with each other to that end. Member States should provide each other with mutual assistance by way of exchange of information between their competent authorities in order to facilitate the monitoring of collective management organisations. (52)It is important for collective management organisations to respect the rights to private life and personal data protection of any rightholder, member, user and other individual whose personal data they process. Directive 95/46/EC governs the processing of personal data carried out in the Member States in the context of that Directive and under the supervision of the Member States’ competent authorities, in particular the public independent authorities designated by the Member States. Rightholders should be given appropriate information about the processing of their data, the recipients of those data, time limits for the retention of such data in any database, and the way in which right holders can exercise their rights to access, correct or delete their personal data concerning them in accordance with Directive 95/46/EC. In particular, unique identifiers which allow for the indirect identification of a person should be treated as personal data within the meaning of that Directive. (53)Provisions on enforcement measures should be without prejudice to the competencies of national independent public authorities established by the Member States pursuant to Directive 95/46/EC to monitor compliance with national provisions adopted in implementation of that Directive. (54)This Directive respects the fundamental rights and observes the principles enshrined in the Charter of Fundamental Rights of Union (‘the Charter’). Provisions in this Directive relating to dispute resolution should not prevent parties from exercising their right of access to a tribunal as guaranteed in the Charter. L 84/82 (55)Since the objectives of this Directive, namely to improve the ability of their members to exercise control over the activities of collective management organisations, to guarantee sufficient transparency by collective management organisations and to improve the multi- territorial licensing of authors’ rights in musical works for online use, cannot be sufficiently achieved by Member States but can rather, by reason of their scale and effects, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (56)The provisions of this Directive are without prejudice to the application of rules on competition, and any other relevant law in other areas including confidentiality, trade secrets, privacy, access to documents, the law of contract and private international law relating to the conflict of laws and the jurisdiction of courts, and workers’ and employers’ freedom of association and their right to organise. (57) In accordance with the Joint Political Declaration of of Member States and the Commission on explanatory documents (1), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified. (58)Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 of Parliament and of the Coun cil (2) and delivered an opinion on 9 October 2012, This Directive lays down requirements necessary 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. (1) OJ C 369, 17.12.2011, p. (2) Regulation (EC) No 45/2001 of Parliament and of the Council of on the protection of individuals with regard to the processing of personal data by the Community insti tutions and bodies and on the free movement of such data (OJ L 8, , p. 1.Titles I, II, IV and V with the exception of Article 34(2) and Article 38 apply to all collective management organisations established in the Union. 2.Title III and Article 34(2) and Article 38 apply to collective management organisations established in the Union managing authors’ rights in musical works for online use on a multi-territorial basis. 3.The relevant provisions of this Directive apply to entities directly or indirectly owned or controlled, 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 this Directive. 4.Article 16(1), Articles 18 and 20, points (a), (b), (c), (e), (f) and (g) of Article 21(1) and Articles 36 and 42 apply to all independent management entities established in the Union. For the purposes of this Directive, the following definitions shall apply: (a)‘collective management organisation’ means any organi sation 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 more than one rightholder, for the collective those rightholders, as its sole or main purpose, which fulfils one or both of the following criteria: (i)it is owned or controlled by its members; (ii)it is organised on a not-for-profit basis; (b)‘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 more than one rightholder, for the collective those rightholders, as its sole or main (i)neither owned nor controlled, directly or indirectly, or in part, by rightholders; and (ii)organised on a for-profit basis; (c)‘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; L 84/83 (d)‘member ’ means a rightholder or an entity representing rightholders, including other collective management organi sations and associations of rightholders, fulfilling the membership requirements of the collective management organisation and admitted by it; (e)‘statute’ means the memorandum and articles of associ ation, the statute, the rules or documents of constitution of a collective management organisation; (f)‘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 organisation; (g)‘director’ means: (i)where national law or the statute of the collective management organisation provides for a unitary board, any member of the administrative board; (ii)where national law or the statute of the collective management organisation provides for a dual board, any member of the management board or the super visory board; (h)‘rights revenue’ means income collected by a collective management organisation on behalf of rightholders, whether deriving from an exclusive right, a right to remun eration or a right to compensation; (i)‘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; (j)‘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 Articles 29 and 30; (k)‘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 right holders and is not acting in the capacity of a consumer; (l)‘repertoire’ means the works in respect of which a collective management organisation ; (m)‘multi-territorial licence’ means a licence which covers the territory of more than one Member State; (n)‘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. Representation of rightholders and membership and organisation of collective management organisations Member States shall ensure that collective management organi sations act in the best interests of the rightholders whose rights they represent and that they do 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.Member States shall ensure that rightholders have the rights laid down in paragraphs 2 to 8 and that those rights are set out in the statute or membership terms of the collective management organisation. 2.Rightholders shall have 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 of nationality, or of either the collective management organisation or the right holder. 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. 3.Rightholders shall have 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. 4.Rightholders shall have the right to terminate the auth orisation 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 2, for the terri tories 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. L 84/84 5.If there are amounts due to a rightholder for acts of exploitation which occurred before the termination of the auth orisation 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 Articles 12, 13, 18, 20, 28 and 33. 6.A collective management organisation shall not restrict the exercise of rights provided for under paragraphs 4 and 5 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 withdrawal be entrusted to another collective management organisation. 7.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. such consent shall be evidenced in documentary form. 8.A collective management organisation shall inform right holders of their rights under paragraphs 1 to 7, as well as of any conditions attached to the right set out in paragraph 3, before obtaining their consent to its managing any right or category of rights or type of works and other subject-matter. A collective management organisation shall inform those right holders who have already authorised it of their rights under paragraphs 1 to 7, as well as of any conditions attached to the right set out in paragraph 3, by 10 October 2016. Membership rules of collective management organisations 1.Member States shall ensure that collective management organisations comply with the rules laid down in paragraphs 2.A collective management organisation shall accept right holders and entities representing rightholders, including other collective management organisations and associations of right holders, 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. 3.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. 4.A collective management organisation shall allow its members to communicate with it by electronic means, including for the purposes of exercising members’ rights. 5.A collective management organisation shall keep records of its members and shall regularly update those records. Rights of rightholders who are not members of the collective management organisation 1.Member States shall ensure that collective management organisations comply with the rules laid down in Article 6(4), Article 20, Article 29(2) and Article 33 in respect of right holders 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. 2.Member States may apply other provisions of this Directive to the rightholders referred to in paragraph 1. General assembly of members of the collective management organisation 1.Member States shall ensure that the general assembly of members is organised in accordance with the rules laid down in paragraphs 2 to 10. 2.A general assembly of members shall be convened at least once a year. 3.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. 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. L 84/85 In a collective management organisation with a dual board system, the general assembly of members shall not decide on the appointment or dismissal of members of the management board or approve their remuneration and other benefits where the power to take such decisions is delegated to the supervisory board. 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. 6.The general assembly of members may delegate the powers listed in points (f), (g), (h) and (i) of paragraph 5, by a resolution or by a provision in the statute, to the body exercising the supervisory function. 7.For the purposes of points (a) to (d) of paragraph 5, Member States may require the general assembly of members to determine more detailed conditions for the use of the rights revenue and the income arising from the investment of rights revenue. 8.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 Article 22. Member States may allow alternative systems or modalities for the appointment and removal of the auditor, provided that those systems or modalities are designed to ensure the inde pendence of the auditor from the persons who manage the business of the collective management organisation. 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. However, Member States may allow for restrictions on the right of the members of the collective management organisation to participate in, and to exercise voting rights at, the general assembly of members, on the basis of one or both of the following criteria: (a)duration of membership; (b)amounts received or due to a member, provided that such criteria are determined and applied in a that is fair and proportionate. The criteria laid down in points (a) and (b) of the first subparagraph shall be included in the statute or the membership terms of the collective management organisation and shall be made publicly available in accordance with Articles 19 and 21. 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. However, Member States may provide for restrictions concerning the appointment of proxy holders and the exercise of the voting rights of the members they represent if such restrictions do not prejudice the appropriate and effective participation of members in the decision-making process of a collective management organisation. 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. Member States may decide that the powers of the general assembly of members may be exercised by an assembly of delegates elected at least every four years by the members of the collective management organisation, provided that: L 84/86 (a)appropriate and effective participation of members in the collective management organisation’s decision-making process is ensured; and