von Lewinski, Silke --- "Collectivism and its Role in the Frame of Individual Contracts" [2012] ELECD 196; in Rosén, Jan (ed), "Individualism and Collectiveness in Intellectual Property Law" (Edward Elgar Publishing, 2012)

Book Title: Individualism and Collectiveness in Intellectual Property Law

Editor(s): Rosén, Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9780857938978

Section: Chapter 5

Section Title: Collectivism and its Role in the Frame of Individual Contracts

Author(s): von Lewinski, Silke

Number of pages: 11

Extract:

5. Collectivism and its role in the
frame of individual contracts
Silke von Lewinski* 1




1. INTRODUCTION: PRESENTATION OF THE
PROBLEM

This short panel contribution focuses on the question of whether, and if
so, how, collectivism may be a means to strengthen the typically weak bar-
gaining position of authors or performers in individual licensing contracts
with exploitation businesses, such as publishers, producers, or broadcast-
ing organizations, in order to enable them to receive an equitable remu-
neration for the exploitation of their rights. The problem is a longstanding
one that is present worldwide, and it is widely perceived as not having
found, in most cases, an appropriate solution.
At the outset, the respective interests of both contractual parties
are the same: both have a strong interest in being able to control the
exploitation of the work or performance at stake, not least in order
to best benefit therefrom. Since, however, the marketing is usually not
undertaken by the author or performer but by a publisher or other
exploitation company, authors and performers regularly assign or
license their exclusive rights to such companies in order to enable such
marketing. From this moment on, the authors' and performers' interests
are focused on receiving an equitable remuneration for the exploitation
of the work or performance. Given their typically weak bargaining posi-
tion as compared to exploitation companies, their chances to receive
such equitable remuneration are often somewhat limited in practice.
In order to remedy this situation in favour of authors and performers,
...