“CMOs”
摘要
The separate references in Art. 16 of Directive 2014/26/EU to two distinct categories of remuneration – tariffs for “exclusive rights” and tariffs for “rights to remuneration” – is not redundant but rather a clear indication that it concerns two distinct categories of rights, each giving rise to a separate claim for payment: the licensing of an absolute and exclusive right and the statutory licensing of a secondary use (equitable remuneration under a statutory licence). Consequently, given the nature of the right in each case, where the remuneration concerns an exclusive right, if the user fails to pay the amount required for licensing, or if there is disagreement regarding the amount claimed by the CMO, the user must deposit under protest the amount demanded prior to any use until the remuneration is finally determined by a court or by arbitration. A provision (here: the first amendment under reference) making no distinction between the absolute and exclusive rights, in respect of which the rightholder and/or the CMO, as their authorised rightholder, retains the right to permit the use and the remuneration rights, on the one hand, and/or the compensation rights, on the other, being that in the event of disagreement, it is the users, and not the rightholders, who determine the remuneration, and, moreover, the users are indiscriminately relieved, regardless of the nature of the right, of the obligation to deposit the remuneration claimed by the rightholder and, simultaneously, the CMOs are deprived of the right to issue a reasoned refusal, which serves as the counterbalance to the “principle of the compelled conclusion of contract”, constitutes a restriction of the right to intellectual property protected by Art. 17.2 of the Charter of Fundamental Rights of the European Union and the right to movable property protected by Art. 23.2 of the Constitution. The delegation of the collection and distribution of remuneration falls within the scope of the authorisation or mandate agreement between the rightholder and the CMO, which the rightholder has an absolute right to choose. The freedom of contract includes the freedom to choose the contracting party. A provision (here: the second amendment under reference) compelling rightholders to accept payment of their remuneration to a third-party CMO rather than to the organisation with which they themselves have entered into a contractual relationship and from which they expect the payment of their royalties, being that the third-party CMO has no contractual relationship with such rightholders and bears none of the obligations imposed by law upon the CMO authorised by the rightholder to represent his interests, especially duties of trust, accountability and transparency, flagrantly violates the contractual relationship between the rightholder and the organisation which he was entitled to choose freely and thus violates Art. 26 of the Constitution. Moreover, such a provision likewise constitutes a violation of the contractual freedom of the third-party CMO and is thus in violation of Art. 26 of the Constitution, as the said third-party CMO is subjected to an obligation which does not arise from its contractual relations with the rightholders who chose it and whose authorisation it has accepted, but, conversely, falls within the contractual obligations of another organisation.