European Union (Collective Rights Management) (Directive 2014/26/EU) Regulations 2016
Source: Iris Oifigiúl 30 2016-04-12 00539-00539

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paragraphs: (1) These Regulations may be cited as European Union (Collective Rights Management) (Directive 2014/26/EU) Regulations 2016.
(2) These Regulations come into operation on 10 April 2016.
(3) These Regulations apply to all collective management organisations established in the State.
(4) Where an entity which is established in the State and is directly or indirectly owned or controlled, wholly or in part, by a collective management organisation carries on an activity which, if carried on by a collective management organisation, would be subject to provisions of these Regulations, those provisions apply to that entity.
(5) The following provisions of these Regulations apply to independent management entities established in the State:
(a) Regulation 14(1) and (2);
(b) Regulation 16;
(c) Regulation 18;
(d) Regulation 19(3).
(6) The Controller is the competent authority designated for the purpose of these Regulations.
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paragraphs: In these Regulations—
(a) it is owned or controlled by its members;
(b) it is organised on a not-for-profit basis;
(a) where the law of the State or the statute of the collective management organisation provides for a single administrative board, any member of the administrative board;
(b) where the law of the State or the statute of the collective management organisation provides for both a management board and a supervisory board (referred to in these Regulations as a “dual board system”), any member of the management board or the supervisory board;
(a) neither owned nor controlled, directly or indirectly, wholly or in part, by rightholders, and
(b) organised on a for-profit basis;
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paragraphs: (1) A collective management organisation shall act in the best interests of the rightholders whose rights it represents.
(2) In particular, a collective management organisation shall not impose on rightholders obligations which are not objectively necessary for the protection of their rights and interests or for the effective management of their rights.
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paragraphs: (1) A collective management organisation shall ensure that rightholders have the rights specified in this Regulation and that those rights are set out in the statute or terms of membership 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 Member State of nationality, residence or establishment of either the collective management organisation or the rightholder; and, unless a 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) A rightholder shall have the right to terminate an authorisation to manage rights, categories of rights or types of works and other subject-matter granted 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, as determined pursuant to paragraph (2), for the territories of their choice, on serving reasonable notice not exceeding six months but the collective management organisation may decide that such termination or withdrawal is to take effect only at the end of the financial year in which the notice is served.
(5) If there are amounts due to a rightholder for acts of exploitation which occurred before the termination of an authorisation or 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 10, 11, 16, 18, 26 and 31.
(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 withdrawal be entrusted to another collective management organisation.
(7) In cases where a rightholder authorises a collective management organisation to manage rights, the rightholder shall give consent specifically for each right or category of rights or type of works and other subject-matter which the collective management organisation is authorised to manage and any such consent shall be evidenced in documentary form.
(8) A collective management organisation shall inform rightholders of their rights under this Regulation, 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.
(9) A collective management organisation shall inform rightholders who have authorised it to manage any rights before the coming into operation of these Regulations of their rights under this Regulation, as well as of any conditions attached to the right set out in paragraph (3), by 10 October 2016.
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paragraphs: (1) A collective management organisation shall comply with the rules laid down in this Regulation.
(2) Rightholders and persons representing rightholders, including other collective management organisations and associations of rightholders, shall be accepted as members if they fulfil the membership requirements of the collective management organisation.
(3) The membership requirements shall be based on objective, transparent and non-discriminatory criteria.
(4) The membership requirements shall be included in the statute or membership terms of the collective management organisation and shall be made publicly available.
(5) Where a request for membership by a rightholder or a person representing rightholders is refused, the rightholder or person shall be provided with a clear explanation of the reasons for the decision.
(6) The statute shall provide for appropriate and effective mechanisms for the participation of the members in the decision-making process of the collective management organisation and the representation of the different categories of members in the decision-making process shall be fair and balanced.
(7) Members and rightholders who have a direct legal relationship by law or by way of assignment, licence or any other contractual arrangement with the collective management organisation but are not members shall be allowed to communicate with the collective management organisation by electronic means, including for the purposes of exercising members’ rights.
(8) Records of the members shall be kept and regularly updated.
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paragraphs: (1) A collective management organisation shall comply with the rules laid down in this Regulation.
(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 or to the membership terms of the collective management organisation where those terms are not regulated by the statute.
(4) The general assembly of members shall decide on the appointment and dismissal of the directors, review their general performance and approve their remuneration and other benefits (whether monetary or non-monetary), including pension awards and entitlements, rights to other awards and rights to severance pay.
(5) 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 or other benefits where the power to take such decisions is delegated to the supervisory board.
(6) In accordance with the provisions laid down in Chapter 2, the general assembly of members shall decide on at least 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 of shares or other rights in other entities;
(i) the approval of taking out loans, granting loans or providing security for loans.
(7) The general assembly of members may delegate the powers listed in subparagraphs (f) to (i) of paragraph (6), by a resolution or by a provision in the statute, to the body exercising the supervisory function.
(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 required by Regulation 20.
(9) 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 but a collective management organisation may provide 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 either or both of the following criteria:
(a) duration of membership;
(b) amounts received or due to a member,
(10) If a restriction is imposed on the basis of a criterion in paragraph (9), it shall be included in the statute or the membership terms of the collective management organisation and shall be made publicly available in accordance with Regulations 17 and 19.
(11) Every member of a collective management organisation shall have the right to appoint any other person as a proxy holder to participate in, and vote at, the general assembly of members on his behalf, provided that the 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.
(12) A proxy shall be valid only for one general assembly of members.
(13) A proxy holder shall enjoy the same rights in the general assembly of members as those to which the appointing member would be entitled.
(14) The proxy holder shall cast votes in accordance with the instructions issued by the appointing member.
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paragraphs: (1) A collective management organisation shall put 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 collective management organisation which satisfies the requirements of this Regulation.
(2) There shall be fair and balanced representation of the different categories of members of the collective management organisation in the body exercising the supervisory function.
(3) Each person exercising the supervisory function shall make an annual individual statement on conflicts of interest, containing the information specified in Regulation 8(3), to the general assembly of members.
(4) The body exercising the supervisory function shall meet regularly and shall have the following powers:
(a) to exercise the powers delegated to it by the general assembly of members, including under Regulation 6(5) or (7);
(b) to monitor the activities and the performance of the duties of the persons mentioned in Regulation 8, including the implementation of the decisions of the general assembly of members and, in particular, of the general policies listed in Regulation 6(6)(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.
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paragraphs: (1) A collective management organisation shall take all measures necessary to ensure that the persons responsible for managing its business do so in a sound, prudent and appropriate manner, using sound administrative and accounting procedures and internal control mechanisms.
(2) A collective management organisation shall put in place and apply procedures to avoid conflicts of interest and to secure that, where conflicts of interest cannot be avoided, actual or potential conflicts of interest are identified, managed, monitored and disclosed in such a way as to prevent them adversely affecting the collective interests of the rightholders whom the collective management organisation represents.
(3) The procedures referred to in paragraph (2) shall include an annual individual statement by each of the persons responsible for managing the business of the collective management organisation to the general assembly of members, containing the following information:
(a) any interests of the person in the collective management organisation;
(b) any remuneration received in the preceding financial year by the person from the collective management organisation, including in the form of pension schemes, benefits in kind and other types of benefits;
(c) any amounts received in the preceding financial year by the person as a rightholder from the collective management organisation;
(d) a declaration concerning any actual or potential conflict between any personal interests of the person and those of the collective management organisation or between any obligations owed by the person to the collective management organisation and any duty so owed to any other person.
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paragraphs: (1) A collective management organisation shall comply with the rules laid down in this Regulation.
(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 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 Regulation 6(6)(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 6(6).
(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 whose rights it represents, in accordance with the general investment and risk management policy referred to in Regulation 6(6)(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.
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paragraphs: (1) Where rightholders authorise a collective management organisation to manage rights, the collective management organisation shall provide the rightholders 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 the rightholders’ consent to its managing the rights.
(2) A collective management organisation shall ensure that deductions are reasonable in relation to the services provided to the rightholders by the collective management organisation, including, where appropriate, the services referred to in paragraph (4), and shall be established on the basis of objective criteria.
(3) A collective management organisation shall secure that management fees do not exceed the justified and documented costs incurred by the collective management organisation in managing copyright and related rights and that the requirements applicable to the use, and the transparency of the use, of amounts deducted or offset in respect of management fees 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 by deductions from rights revenue or from any income arising from the investment of rights revenue, the collective management organisation shall ensure that the services are provided on the basis of fair criteria, in particular as regards access to, and the extent of, those services.
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paragraphs: (1) A collective management organisation shall regularly, diligently and accurately distribute amounts due to rightholders in accordance with the general policy on distribution referred to in Regulation 6(6)(a).
(2) The collective management organisation and members of the collective management organisation who represent rightholders shall distribute those amounts to rightholders as soon as possible but no later than the end of the period of nine months after the end of the financial year in which the rights revenue was collected, unless objective reasons relating in particular to—
(a) reporting by users,
(b) identification of rights or rightholders, or
(c) matching of information on works and other subject-matter with rightholders,
(3) Where the amounts due to rightholders cannot be distributed within the period referred to in paragraph (2) because the relevant rightholders cannot be identified or located and the exception to that deadline does not apply, the collective management organisation shall ensure that the amounts are kept separate in the accounts of the collective management organisation.
(4) The collective management organisation shall take all necessary measures, consistent with paragraphs (1) and (2), to identify and locate the rightholders and, in particular, before the end of the period of three months after the end of the period referred to in paragraph (2), the collective management organisation shall make available information on works and other subject-matter for which one or more rightholders have not been identified or located to—
(a) the rightholders that it represents and persons who represent rightholders and are members of the collective management organisation, and
(b) all collective management organisations with which it has concluded representation agreements.
(5) The information referred to in paragraph (4) shall include, where available, the following:
(a) the title of the work or other subject-matter;
(b) the name of the rightholder;
(c) the name of the relevant publisher or producer;
(d) any other available information which could assist in identifying the rightholder.
(6) The collective management organisation shall also verify the records referred to in Regulation 5(8) and other readily available records.
(7) If the measures mentioned in paragraphs (4) to (6) fail to produce results, the collective management organisation shall make the information mentioned in paragraph (4) available to the public not later than one year after the end of the three-month period mentioned in that paragraph.
(8) Where the amounts due to rightholders cannot be distributed before the end of the period of three years after the end of the financial year in which the collection of the rights revenue occurred, and the collective management organisation has taken all necessary measures to identify and locate the rightholders referred to in paragraphs (4) to (7), those amounts shall be treated for the purposes of paragraph (9) as being non-distributable.
(9) The general assembly of members of the collective management organisation shall decide on the use of the non-distributable amounts in accordance with Regulation 6(6)(b), without prejudice to the right of rightholders to claim such amounts from the collective management organisation.
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paragraphs: 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 the rightholder.
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paragraphs: (1) A collective management organisation which manages rights under a representation agreement shall not make deductions, otherwise than in respect of management fees, from the rights revenue derived from the rights it manages, or from any income arising from the investment of that rights revenue, unless the other collective management organisation that is party to the representation agreement expressly consents to such deductions.
(2) A collective management organisation which manages rights under a representation agreement shall regularly, diligently and accurately pay amounts due to the other collective management organisation which is party to the representation agreement.
(3) The collective management organisation shall pay those amounts to the other collective management organisation as soon as possible but no later than the end of the period of nine months after the end of the financial year in which the rights revenue was collected, unless objective reasons relating in particular to—
(a) reporting by users,
(b) identification of rights or rightholders, or
(c) matching of information on works and other subject-matter with rightholders,
(4) The other collective management organisation, or (where it has as members persons representing rightholders) those members, shall distribute the amounts due to rightholders as soon as possible but no later than the end of the period of six months after day of the receipt of those amounts, unless objective reasons relating in particular to—
(a) reporting by users,
(b) identification of rights or rightholders, or
(c) matching of information on works and other subject-matter with rightholders,
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paragraphs: (1) A collective management organisation or independent management entity and a user shall conduct negotiations for the licensing of rights in good faith.
(2) A collective management organisation or independent management entity and a user shall provide each other with all necessary information.
(3) The terms on which rights are licensed by a collective management organisation shall be based on objective and non-discriminatory criteria.
(4) When licensing rights, a collective management organisation 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.
(5) A collective management organisation shall ensure that rightholders receive appropriate remuneration for the use of their rights.
(6) A collective management organisation shall ensure that tariffs for exclusive rights and rights to remuneration are reasonable in relation to, among other things, 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, and the economic value of the service provided by the collective management organisation.
(7) The collective management organisations shall inform the users concerned of the criteria used for the setting of those tariffs.
(8) A collective management organisation shall reply without undue delay to a request from a user, indicating, among other things, the information needed in order for the collective management organisation to decide whether to offer a licence.
(9) On receipt of all information needed to make such a decision, 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.
(10) 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.
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paragraphs: (1) A user of rights represented by a collective management organisation shall provide to the collective management organisation, within an agreed or pre-established time and in an agreed or pre-established format, such relevant information at the user’s disposal on use of rights represented by the collective management organisation as is necessary to enable the collective management organisation to undertake the collection of rights revenue for the distribution of amounts due to rightholders in order to discharge its obligations under these Regulations.
(2) When agreeing the format for the provision of such information, a collective management organisation and a user shall take into account, as far as possible, voluntary industry standards.
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paragraphs: (1) A collective management organisation or independent management entity shall make at least the following information available, not less than once a year, to each rightholder to whom it has attributed rights revenue or made distributions in the period to which the information relates:
(a) any contact details which the rightholder has authorised the collective management organisation or independent management entity to use in order to identify and locate the rightholder;
(b) the rights revenue attributed to the rightholder;
(c) the amounts distributed by the collective management organisation or independent management entity to the rightholder for each category of rights managed and for each type of use;
(d) the period during which the use for which amounts were attributed and distributed to the rightholder took place, unless objective reasons relating to reporting by users prevent the collective management organisation or independent management entity from providing this information;
(e) deductions made in respect of management fees;
(f) deductions made for any purpose otherwise than in respect of management fees, including those made 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 or independent management entity attributes rights revenue and has as members entities which are responsible for the distribution of rights revenue to rightholders, the collective management organisation or independent management entity shall provide the information listed in paragraph (1) to those entities if they do not have the information in their possession.
(3) Entities which are members of a collective management organisation or independent management entity and are responsible for the distribution of rights revenue to rightholders shall make the information listed in paragraph (1) available, not less than once a year, to each rightholder to whom they have attributed rights revenue or distributed amounts in the period to which the information relates.
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paragraphs: A collective management organisation shall make the following information available, not less than once a year and by electronic means, to a collective management organisation on whose behalf it manages rights under a representation agreement, for the period to which the information relate:
(a) the rights revenue attributed to the collective management organisation for the rights it manages under the representation agreement;
(b) the amounts distributed by the collective management organisation for each category of rights managed, and for each type of use, for the rights it manages under the representation agreement, and any rights revenue attributed which is outstanding for any period;
(c) deductions made in respect of management fees;
(d) deductions made for any purpose otherwise than in respect of management fees, including those for the provision of any social, cultural or educational services;
(e) information on any licences granted or refused with regard to works and other subject-matter covered by the representation agreement;
(f) 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.
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paragraphs: In response to a duly justified request, a collective management organisation or independent management entity shall make available by electronic means and without undue delay to any rightholder or any user, or (in the case of a collective management organisation) any collective management organisation on whose behalf it manages rights under a representation agreement, at least the following information:
(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 or independent management entity, 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.
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paragraphs: (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 included in the statute;
(c) standard licensing contracts and standard applicable tariffs, including discounts;
(d) a list of the persons who manage its business;
(e) its general policy on distribution of amounts due to rightholders;
(f) its general policy on management fees;
(g) its general policy on deductions, otherwise 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) its general policy on the use of non-distributable amounts;
(j) the complaint handling and dispute resolution procedures available in accordance with Regulations 31 and 32.
(2) The collective management organisation shall publish the information specified in paragraph (1), and keep it up to date, on its public website.
(3) An independent management entity 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 included in the statute;
(c) standard licensing contracts and standard applicable tariffs, including discounts;
(d) its general policy on distribution of amounts due to rightholders;
(e) its general policy on management fees;
(f) its general policy on deductions, otherwise 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.
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paragraphs: (1) A collective management organisation shall produce a transparency report, including a special report as mentioned in paragraph (7), for each financial year no later than eight months following the end of the financial year.
(2) The collective management organisation shall publish a transparency report on its website and ensure that it remains available to the public there for at least five years.