Illustrating Options:
Collective Administration of Intellectual Property for Canadian Cultural Heritage Institutions
9. 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.34
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.35
Many collective societies demand exclusive representation of their members'
rights.36 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 non-overlapping territories.37 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.38
