Administrative Law and Intellectual Property: Certain thoughts on the double dimension of copyright collective management societies in the Dominican Republic.
August 31, 2020
By: B. Génesis Rodríguez | Senior Associate
Copyright owners have the possibility of associating and creating entities oriented to efficiently manage their rights, since it may be considered difficult or impossible for said owners to individually monitor the use of their works or rights. That is why in the Dominican Republic, the possibility of creating collective management societies has been envisaged.
The administration work of the collective management entities consists of controlling the use of works or rights, negotiating with user associations, granting user licenses under a fee system, and distributing remuneration rights.
Keywords
Copyright, related rights, collective management society, intellectual work, mass communication, public law corporations, author, collective management, public dissemination.
General
Nowadays, it is an indisputable fact that whoever creates a work of art has the right to authorize or prohibit its use. Thus, a writer can market the publication and sale of his literary work; a musician can have control over the way his work or performance is being reproduced, a film producer can determine the conditions in which his work will be staged. These are just a few examples to illustrate that individual copyright holders can protect their works without “major” limitations.
However, concerning certain types of intellectual works, it is sometimes difficult to effectively carry out individual copyright management. Given the characteristics of the world in which we live, where the Internet, technologies, and the multiplicity of mass media constitute the foundation of the modus vivendi in almost all the societies, the authors have few possibilities, if any, to control all the uses that are made of their works, which in turn constitutes a limitation when managing the corresponding remuneration for said uses.
It is also not feasible for broadcasting organizations to manage specific permissions for each author when using their works protected by copyright. From this, it can be inferred that the authors face a material limitation of managing their rights individually; which inexorably has as a consequence the need to create collective management organizations, whose main purpose is to be the channel for managing copyright between users and rights holders.
Thus, collective management is understood to be the exercise of copyright and related rights through organizations that act on behalf of the owners of rights, in defense of their individual interests. These collective management companies are the ones that usually manage the public dissemination of the rights under their charge to clinics, hotels, gyms, restaurants, among other commercial facilities.
In the virtual world of the new millennium, rights management acquires a new dimension. Today, protected works are digitized, uploaded and downloaded, copied, and distributed on the Internet, to send them anywhere in the world. The increasing possibilities offered by this network allow mass storage and online distribution of protected material. Today the possibility of downloading the content of a book, listening to, and recording music from cyberspace is already normal. The possibilities are endless, but there are also many problems for owners, users, and collective management organizations[1].
In this regard, Wilson Ríos considers that collective management arises as a frank and effective response to a practical problem that was presented to authors and holders of copyright and related rights about the control and disposition of the rights that arise for himself by the continuous use of his works[2].
It was not easy for an author to multiply and manage to control the various places and the countless number of people who could access his creations through the phonograph or the cinematograph, and it is more difficult today to carry out that control because of the many technological advances that they allow us to have a work in our hands thanks to network services, or that allows us to bring together a series of works in a single medium through multimedia, digital media, and interactivity[3].
Therefore, the mandate conferred on collective management societies is to manage from the author or owner of copyright and/or rights related to the economic benefits derived from the use of their works, which are creations product of their intellect, imagination, and creativity, in a society in which works are exploited simultaneously in different markets, such as musical works contained in phonograms, with the direct collection being a practically impossible action for the owner. Thus, Delia Lipszyc points out that copyright is “[…] individual rights of collective exercise”[4].
[1] National Institute of Industrial Property (INAPI), Chile: "Collective Management Entities of Copyright and Related Rights". Available on the web: https://www.inapi.cl/portal/institucional/600/w3-article-848.html Accessed on: 10/15/2018.
[2] Ríos, Wilson R., “Propiedad intelectual en la era de las tecnologías”, 2011, p. 165. Cited in: Report of the Rapporteurship of the Entrepreneur Support Workshop for the protection of intellectual property rights: The protection of trademarks and patents from the perspective of micro, small and medium-sized enterprises (MIPYMES) Guatemala City, Guatemala June 7, 8 and 9, 2017, available at: https://www.miem.gub.uy/sites/default/files/if_-_propiedad_intelectual.pdf (accessed February 12, 20020).
[3] Ríos 2011, p. 165. Cited in: “Collective Management Societies” https://www.propiedadintelectual.gob.ec/sociedades-de-gestion/
[4] Lipszyc, year 2007, p. 416, 417. Cited in: “Collective Management Societies” https://www.propiedadintelectual.gob.ec/sociedades-de-gestion/
Dominican Republic: International Treaties, Constitution and Law No. 65-00.
Article 52 of the Dominican Constitution sets forth the right to intellectual property, which expressly establishes that “the property right is recognized and protected exclusive of scientific, literary, artistic works, inventions and innovations, denominations, trademarks, distinctive signs and other productions of the human intellect by time, in the form and with the limitations established by law”.
In this regard, Law No. 65-00 on Copyright, of July 24, 2000 (hereinafter, “Law No. 65-00”) refers to the collective management societies of authors or rights holders such as those whose main purpose is the defense of the patrimonial rights of their associates or represented; that is, they function as administrators of said rights. In this sense, Law No. 65-00 provides that the constitution of no more than one company for each branch or literary or artistic specialty of the copyright holders recognized by the aforementioned law will be possible[5].
However, it is important to highlight that by express mandate of the same Law No. 65-00, adhesion to these companies will be voluntary, and in no way will it prevent the authors from managing their rights through a proxy. In this case, on must be a natural person and must be authorized by the Copyright Unit. In these cases, the management company will be duly notified of this circumstance, refraining from carrying out any management on the rights of the owner.
As for Law No. 65-00, it establishes that collective management companies are of public interest, have legal status, and own assets. For its operation, and consequently, to acquire legal status, it is necessary to obtain a favorable opinion from the Copyright Unit and authorization from the Executive Power.
Regarding the rates established by these types of companies, No. 65-00 establishes that the rates related to the remuneration corresponding to the licenses granted for the use of works that make up their repertoire must be proportional and approved by the National Office. Copyright (ONDA, for its Spanish acronym).
Among the collective management societies that are currently incorporated in the Dominican Republic are the General Society of Dominican Authors, Composers, and Editors of Music (SGACEDOM, for its Spanish acronym), as well as the Entity for Collective Management of Rights of Audiovisual Producers of the Dominican Republic (EGEDA Dominicana, for its Spanish acronym), the Dominican Society of Phonographic Producers (SODINPRO, for its Spanish acronym) and the Dominican Society of Interpreters and Performers (SODAIE, for its Spanish acronym).
[5]See Article 162 of Law No. 65-00.
Precedents of the Dominican Constitutional Court.
Article 163 of Law No. 65-00 provides that collective management societies can exercise the rights entrusted to their administration and enforce them in all kinds of administrative and judicial procedures, without presenting any title other than the authorization decree and the articles of incorporation. Accordingly, collective management associations have the presumption that the rights exercised by them have been entrusted to them, directly or indirectly, by their respective owners.
Through Ruling TC/0331/17, dated June twenty (20) of the year two thousand seventeen (2017), the Dominican Constitutional Court set the precedent that any association for the protection of copyright constituted following the provisions of Law No. 65-00, has a delegation of action by the State, similar to what happens with professional corporations, which, at the discretion of the Court, in its own and ordinary action of Administrative Law, confers powers of the public administration to certain institutions made up of individuals for the ordering and management of a certain sector of society, finding its framework of action and attributions duly configured in the aforementioned law[6].
Thus, regarding this type of legal persons under public law and professional corporations, the Constitutional Court has interpreted the following:
“9.2.2. But in the context of the power of free association that is configured in article 47 of our Constitution, it is necessary to determine whether we are dealing with a corporation under public law or private law. Public law corporations are defined as those autonomous entities that represent the interests of certain social sectors before the public powers and carry out public management functions of the said sector; while private law corporations are considered as establishments founded and governed by individuals, who sometimes act under the supervision and with the permission of the administration, but without any delegation of public power.
9.2.3. Regarding public law corporations, it should be noted that the definition given in the previous paragraph gives these entities a double dimension, which, on the one hand, have a private basis, as they are constituted in order to represent and defend the interests of a certain group; and, on the other hand, they have at the same time a public dimension determined by the exercise of public administrative functions, which gives it its own nature similar to the organs of Public Administration, due to the scope of its activity, which brings it closer to the sphere of administrative law. This concept would include professional associations and sports federations, among others[7]”.
Giventhe aforementioned criteria, the Constitutional Court interpreted in the aforementioned Judgment that any act emanated by an entity vested with delegated powers, management and organization of a sector of society,proper to administrative law and a fundamental right such as Copyright, the jurisdiction to which the challenge of the actions of collective management societies would correspond, must be settled in the Superior Administrative Court, in accordance with its jurisdiction.
[6] Judgment of the TC published on the TC website: TC / 0331/17, dated June twenty (20) of the year two thousand seventeen (2017), online, www.tribunalconstitucional.gob.do/Sentencias.do [ accessed: July 5, 2019].
[7] Judgment of the TC published on the TC website: TC / 0163/13, dated September 16, 2013, online, www.tribunalconstitucional.gob.do/Sentencias.do [accessed: July 5, 2019]
Final thoughts. Conclusions.
Copyright owners have the possibility of associating and creating entities aimed at efficiently managing their rights, since it may be considered difficult or impossible for such owners to individually monitor the use of their works. That is why in the Dominican Republic the possibility of creating collective management societies has been envisaged. The administration work of the collective management entities consists of controlling the use of works, negotiating with user associations, granting user licenses under a fee system, and distributing remuneration rights.
Once constituted, the management entities are entitled to exercise the rights entrusted to their management and enforce them in all types of procedures, both administrative and judicial.
In today's digital age, copyright management takes on a new dimension. Currently, protected works are disseminated in multiple forms on the Internet, and are made to reach any part of the world, making it increasingly difficult to control such diffusions individually for the holders of rights, so that the companies of Collective management constitute an important link between users and copyright holders.
By criteria established by the Dominican Constitutional Court, any act emanating from an entity vested with delegated powers, management and organization of a sector of society, proper to administrative law and a fundamental right such as copyright, jurisdictionbefore which the challenge of the actions of the collective management societies would correspond, it must be settled in the Superior Administrative Court, according to its competence.
Sources of consultation.
Constitution of the Dominican Republic, of June 13, 2015;
Law No. 65-00 on Copyright, of July 24, 2000;
Espinal Hernández, Edwin. Intellectual property in court: a look at jurisprudential production. Available on the web: file: /// C: /Users/User/Desktop/Sociedades%20de%20Gestión%20Colectiva/Dialnet-LaPropimonioIntelectualEnLosTritorial-6095919.pdf Consulted on: 10/15/2018.
National Institute of Industrial Property (INAPI), Chile: "Collective Management Entities of Copyright and Related Rights". Available on the web: https://www.inapi.cl/portal/institucional/600/w3-article-848.html Accessed on: 10/15/2018.
Lipszyc, year 2007, p. 416, 417. Cited in: "Collective Management Societies" https://www.propiedadintelectual.gob.ec/sociedades-de-gestion/ Consulted on: 11/15/2018.
DATA PROTECTION, COPYRIGHT AND SAFE NAVIGATION. Available on the web: https://educacionadistancia.juntadeandalucia.es/profesorado/autoformacion/mod/book/view.php?id=3872&chapterid=3199Accessed on: 10/15/2018.
Ríos 2011, p. 165. Cited in: "Collective Management Societies" https://www.propiedadintelectual.gob.ec/sociedades-de-gestion/ Consulted on: 10/15/2018.
WIPO NATIONAL SEMINAR ON THE COLLECTIVE MANAGEMENT OF COPYRIGHT AND RELATED RIGHTS. Available on the web: file: /// C: /Users/User/Desktop/Sociedades%20de%20Gestión%20Colectiva/OMPI_DA_SDO_98_9_S.pdf Accessed on: 10/13/2018.
Dominican Constitutional Court. Sentence no. TC / 0163/13, dated September 16, 2013.
Dominican Constitutional Court. JudgmentTC / 0331/17, dated June twenty (20) of the year two thousand seventeen (2017).
Published in the magazine: Gaceta Judicial | @gacetajudicialrd
By: B. Génesis Rodríguez | Senior Associate
Lawyer specialized in Constitutional Justice and Interpretation of Fundamental Rights from the University of Castilla-La Mancha, Master in Law and Constitutional Procedure from the UASD, Master in Legal Practice from the PUCMM. Senior Associate Attorney at the Pellerano Nadal Firm. Author of the Article “RIGHT TO DIGITAL FORGETTING: HANGING BRIDGE BETWEEN INFORMATION FREEDOMS AND PRIVACY”, published in the 2017 Yearbook of the Dominican Constitutional Court.
The PELLERANO NADAL team is available to answer any questions regarding this or any other topic of interest to you.