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How to Assess the Exploitative Practices of Collecting Societies?

Taking Inspiration from FRAND Terms

DOI https://doi.org/10.21552/core/2017/4/6

Mária T Patakyová


Intellectual property rights enable their holders to create a dominant position on a relevant market which shall not be abused. Collecting societies are copyright management organisations established to protect the copyrights of their members. When collecting societies have a dominant position, they have to avoid any exploitative practice and, subsequently, they cannot demand excessive royalties from users of copyright works. However, are possible exploitative practices worth prosecuting? And if so, how to establish if royalties are excessive? This article claims that the common approaches to excessive pricing are not always suitable for collecting societies. The judgments of the Court of Justice of the European Union do not sufficiently solve the situation, even though certain clarification was presented in the recent case C-177/16 AKKA. Thus, in order to address the issue, this article chooses the approach of applying the methods of calculation known from standard essential patent holder’s fair, reasonable and non-discriminatory (FRAND) commitment, to the case of collecting societies. In particular, this article focuses on the concrete methods known from determining FRAND terms which are subsequently applied to the Slovak collecting societies. The aim is to show that there are lessons to be learnt from FRAND terms in establishing the excessiveness of royalties by collecting societies.

Mária T Patakyová, JUDr, PhD, Assistant Professor, Institute of European Law, Faculty of Law, Comenius University in Bratislava, Slovakia. For correspondence: <mailto:maria.patakyova2@flaw.uniba.sk>.

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