10. Another Perspective

B. Options for Administration of Intellectual Property Rights in
CCCanadian Cultural Heritage Institutions (continued)

The Relationship Between the Author and the Collective

Collective societies in Canada administer economic rights on behalf of their members. Frequently, members of collectives hold the copyrights for works held in the collectives’ repertoires. The pivotal point in the relationship between the collective and its membership is when rights are assigned or transferred directly to the collective. The agreement that outlines this transfer may be either a license or a right to administer, depending on whether the member assigns property rights or merely the mandate to collect and distribute royalties. The nature of the relationship is not always clear because agreements often do not clarify these points.35

Moral rights cannot be assigned to collective societies (or anyone else) under Canadian law, but some collective societies will try and protect their members’ moral rights as a matter of course. Certain collective societies, for example, may have bylaws that prohibit granting a license when there is a violation of moral rights, or may accept instructions from individual members and act as their agent with respect to moral rights.36

Many collective societies demand exclusive representation of their members’ rights.37 Copyright in Canada, as in the United States, involves a bundle of rights, and creators frequently assign different rights for the same work to different collective societies. In Canada, however, the author may not assign the same right to a work to more than one collective society at the same time. The sole exception is collective societies operating in mutually exclusive territories. In this instance, an author may grant the same right for a work to more than one collective society as long as the societies operate in nonoverlapping territories.38 This situation is extremely rare. Most collective societies hold reciprocity agreements with each other that cover different jurisdictions.

The collective society manages the rights of the author, enters into licensing agreements on his or her behalf, collects royalties, and redistributes them according to agreed formulas. In addition, a number of collective societies offer their members legal advice, intervene in legal disputes that may influence relevant issues, and play an advocacy role on behalf of their membership. Despite these interactions, the relationship between the collective and its members is somewhat paternalistic. The degree of control that a member may have over the day-to-day activities of the collective society, and over the administration of the rights assigned to the society, is not always clear.39

Collective Administration in Canada: A Legal Framework

Introduction to
Managing Digital Assets