International Journal of Research and Scientific Innovation (IJRSI) | Volume III, Issue XII, December 2016 | ISSN 2321–2705
Collective Management of Copyright: More Than
Two Centuries of Existence in History; Two Years
Old in Ethiopia
Amenti Abera Kajela*
Abstract: Collective management of copyright is conceived as an
efficient way for authors and other right owners to exercise right
over their works that may be difficult to operate individually.
The system benefits not only right holders by facilitating
collection and distribution of royalties, but also useful to users of
copyright protected works by allowing negotiation for a mass use
of copyright resources. Though the concept has existed for more
than two centuries, it is only two years old in Ethiopia and was
introduced by Copyright and Neighbouring Rights Protection
(Amendment) Proclamation No. 872/2014. While good copyright
legislation is a prerequisite, that alone is not enough and pirates
are kept out the market through efficient enforcement measures.
Recognizing collective management may be one way to facilitate
better enforcement of rights; but recognition by itself is not an
end. For the concept to function practically, it is important that
all stakeholders understand the rationale behind collective
management and benefits to right holders, users and society at
large need to be clearly demonstrated. This article tries to
explain fundamentals of the operation of collective management
system in copyright and related rights and shows importance of
help from EIPO in establishing CMOs.
Key Words: blanket license, collective management, collective
management organization(s), copyright and related
(neighboring) rights, Ethiopian Intellectual Property Office
(EIPO), exclusive right, license, repertoire (national,
international), users, right holders, royalty, World Intellectual
property Office (WIPO)
Acronyms
CMOs – Collective Management Organizations
EIPO – Ethiopian Intellectual Property Office
WIPO – World Intellectual Property Organization
I. INTRODUCTION
C opyright is a legal protection provided for works of
authorship under specific conditions. 1 It has been defined
as the right to multiply copies of a published work, or the right
to make the work public while retaining the beneficial interest
therein together with the exclusive right of multiplying copies
of an original work or composition, and consequently
*. LLB with honour (Dilla University, 2014) Assistant Lecturer at Dire Dawa
University since October, 2015 and currently on education leave; studying
LLM at Haramaya University. The author also served as Assistant Lecturer at
Mettu University (October 2014 – October 2015).
1
. Fikremarkos Merso, The Ethiopian law of Intellectual Property Rights:
Copyrights, Trademarks, patents, Utility Models and Industrial designs: A
Textbook, 52, (2012)
www.rsisinternational.org
preventing others from doing so.2 Copyright law focuses on
the protection of the rights of authors and owners of copyright
works from unauthorized exploitation by third parties and
central to the protection of copyright is the right of copyright
owners to sue and enforce alleged infringement.3 „It relates to
literary and artistic creations, such as books, music, paintings
and sculptures, films and technology-based works (such as
computer programs and electronic databases).‟ 4
Copyright comprises two main sets of rights: the economic
rights and the moral rights. The foundation of economic rights
is a set of exclusive rights which means that the rights holder
can decide who can use the work, where and on what terms. 5
Elements of economic right are the rights of reproduction,
broadcasting, public performance, adaptation, translation,
public recitation, public display, distribution, and so on and it
allows right owners to derive financial reward from the use of
their works by others.6 These rights can be subjected to
negotiation whereby the creator of the work can transfer them
to other person who replaces him in exercising copyright
ownership. The moral rights include the author‟s right to
decide upon when or whether to make the work public 7,
paternity right to claim authorship of the work and right of
integrity to object distortion, mutilation or other modification
that would be prejudicial to the authors reputation or honor. 8
Moral rights are only accorded to individual authors and in
many national laws they remain with the authors even after
the authors have transferred their economic rights.‟ 9 In
2
. World Intellectual Property Office(WIPO), WIPO Intellectual Property
Handbook, WIPO Publication No. 489, 40, (2008), available at:
<http://www.wipo.int/edocs/pubdocs/en/intproperty/489/wipo_pub_489.pdf>
3
. Job O. Odion and Desmond O. Oriakhogba, Copyright collective
management organizations in Nigeria: resolving the locus standi conundrum,
Journal of Intellectual Property Law & Practice, 2015, Vol. 10, No. 7, 518,
518 (2015)
4
. World Intellectual Property Office, Understanding Copyright and Related
Rights, 5, (2016)
5
. Nicholas Lowe, Educational Material on Collective Management of
Copyright and Related Rights; Module 1: General aspects of collective
management, 13, WIPO (2012)
6
. (World Intellectual Property Office), supra note 4, at 9
7
. European Commission Memo, Directive on Collective Management of
Copyright and Related Rights and Multi-Territorial Licensing – Frequently
Asked Questions, MEMO/14/79, (2014) available at:
<http://europa.eu/rapid/press-release_MEMO-14-79_en.htm> Last seen on
11/Nov/16, at 10:48
8
. (Lowe), supra note 5
9
. (World Intellectual Property Office), supra note 4, at 14.
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International Journal of Research and Scientific Innovation (IJRSI) | Volume III, Issue XII, December 2016 | ISSN 2321–2705
Ethiopia moral right includes right to remain anonymous or to
use a pseudonym and belong to author of the work
irrespective of transfer of economic rights. 10
The exercise of rights established by copyright law is personal
to the owner of such right and the nature of the right is
exclusive in which the owner enjoys it to the exclusion of all
others. But, with the ever evolving technologies, the number
of areas in which the individual exercise of rights is becoming
equally difficult, and in some cases even impossible, started to
grow; in which the establishment of collective management
organizations become the logical solution for the right
owners.‟11 „In cases where the individual management of
copyright is either impracticable or impossible, rights holders
have established CMOs to look after their rights.‟ 12 Collective
management of rights represents the exercise of copyright and
related rights by organizations acting on behalf of the owners
of rights.13 Right holders entrust their rights to a CMO which
manages rights on their behalf. The concept of collective
management of copyright represents a collection of right
holders who make an association and from organization to
mix their protected works in one unit and administer it jointly
through the organization they formed.
This concept is a recent phenomenon in Ethiopia though it has
existed for long period of time in history. As it is the new
concept, the understanding of what it is, how it works, the
benefits to be derived and the functions and roles played by
CMOs need to be understood before an effort to establish such
organizations starts. In addition, the copyright law as it exits
needs to be made clear for all stake holders and understanding
the legal environment of the country on the concept is of
crucial importance. Depending on this thinking, this article
explains the basic concepts in collective management of
copyright and throws light upon Ethiopian law on the point.
The primary aim is to make explanation of the concept though
some comments have been made on few legal provisions. Part
two, which immediately follows this introduction part,
explains the concept by addressing its historical background,
theoretical foundation and operation, functions and major
types of CMOs. The third section addresses the concept from
view point of Ethiopian law. In this part, an overview of
copyright law of the country, formation of and preconditions
for the establishment of CMOs, powers and duties of CMOs
and mechanisms of controlling their functions will be
discussed as they exist in Ethiopian law. No reference to other
jurisdictions in this article has purpose of making comparison;
but used to make the issue clear. Summary of the ideas raised
10
. Copyright and Neighbouring Rights Protection Proclamation,
Proclamation No. 410/2004, FEDRAL NEGARIT GAZETA 10 th Year No.
55, Addis Ababa, 14th July 2004, herein after referred to as (The proclamation
as amended) Article 8(1)(b)
11
. Dr. Mihály Ficsor, Collective Management of Copyright and Related
Rights at A Triple Crossroads: Should It Remain Voluntary or May It Be
―Extended‖ Or Made Mandatory?, Copyright Bulletin, 1, 2013
12
. (Lowe), supra note 5, at 20
13
. Visit official website of WIPO at:< www.wipo.int/copyright/en/ >
accessed on 12/Nov/2016 at 08:32pm
www.rsisinternational.org
and conclusions from the overall idea of the article makes the
final part.
II. THE CONCEPT OF COLLECTIVE MANAGEMENT OF
COPYRIGHT AND RELATED RIGHTS
2.1. Historical Background of the Concept
CMOs have been in place for more than two centuries and the
earliest organization of this kind was born in France as early
as late 18th century, from where it gradually proliferated to
European countries and other regions of the world.14 In France
it started in 1777, in the field of theatre, with dramatic and
literary works.15 It started with the French playwright, Pierre-
Augustin Caron de Beaumarchais, in the dark and dingy
Parisian theatres.16 At that time, theatrical companies were
interested in encouraging and promoting plays by artists, but
were not willing to share revenues with artists.17 As such, they
used to benefit from performances of the authors‟ works
without consideration of any returns to them.
Beaumarchais lodged a complaint that expresses his
displeasure for absence remuneration from Comédie
Française relating to the performances of his work called
‗Barbier de Séville.‘ On 3rd of July, 1777, he gathered 22
authors from the most influential creative writers of the
time.18 The meeting they conducted over some financial
matters turned into a debate about collective protection of
rights. They appointed agents; conducted pen strike and the
event laid to foundation for the French Society of Drama
Authors (Socie´te´ des auteurs dramatiques).19
Many writers who were dissatisfied with the performance of
their works had made complaints prior to that of
Beaumarchais though it was a fruitless effort. „Beaumarchais‟
complaint could, however, not be ignored as he was a person
of influence.‟20 It was this quality that helped him to influence
comedians and get their attention to support his complaint and
enter into negotiations with him. Accordingly, he became the
first person to express the idea of collective management of
14
. Ning Han, Asian Social Science, Vol. 8, No. 8; July 2012. 177, 177
Available at:
<http://www.ccsenet.org/journal/index.php/ass/article/viewFile/18523/12286
>
15
. (Lowe), supra note 5, at 19
16
. Daniel Gervais, Collective Management of Copyright and Related Rights,
3 Kluwer Law International(2010) available at:
<http://www.tripsagreement.net/wp-
content/uploads/2014/04/Gervais_9789041127242_Ch-01_Daniel-
Gervais.pdf>
17
. (Lowe), supra note 5, at 4
18
. O. Ola, Copyright Collective Administration in Nigeria, Springer Briefs in
Law, DOI: 10.1007/978-3-642-35819-7, 13 (2013)
19
. (Gervais), supra note 16, at 4.
20
. (Ola), supra note 18, at 14 [For detail history of Beaumarchais‟ initial
efforts see: Intermission: Beaumarchais and the 1777—1780 Société des
auteurs dramatiques, available at: <http://www.gutenberg-
e.org/brg01/print/brg05.pdf >] It is mentioned that Beaumarchais carried
greater political weight than other playwrights who had previously negotiated
with and even sued the Comédie Française.
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International Journal of Research and Scientific Innovation (IJRSI) | Volume III, Issue XII, December 2016 | ISSN 2321–2705

copyright.21 His efforts and the meeting he called resulted in net of authors‟ societies, shaped by the cultural environment
the formation of the first collective management organization of each country, slowly spread throughout the world and the
known as Société des Auteurs et Compositeurs Dramatiques collective management of copyright started to be seen as a
(SACD) which was a professional association for creative practical and efficient way of allowing creators to be
writers domiciled in France.22 compensated.27 The expansion, from its place of birth, to other
parts of the world then continues over time and the concept
The battle that Beaumarchais opened against theatrical
evolved into fully-fledged collective management
companies was followed by other movements of the same
organizations in the sense in which it is known at present. One
species and resulted in foundation of concept collective
of WIPO publications disclosed that CMOs exist in 121
management system as it exists today. As they take lesson
countries as of June 2012.28
from previous movements, it can be expected that these
subsequent movements are more serious ones and cover 2.2. Theoretical Foundation of the Concept
different sectors of copyright protection. In 1838, Honore´ de
The foundation of collective management of copyright bases
Balzac and Victor Hugo established „The Society of Writers‟
itself on two theoretical backgrounds: apparent paradox of
[Société des gens de lettres (SGDL)], the second CMO, that
copyright and fragmentation of rights. 29
was mandated with the collection of royalties from print
publishers.23 The apparent paradox of copyright is the fact that while trying
to encourage creation and dissemination of intellectual works
……..The concept of modern collective administration of
of art, the law seemingly acts as an impediment to both
copyright came to the fore through a legal action instituted
creation and dissemination of these woks. 30 The effort of
by two composers Paul Henrion and Victor Parizot and a
copyright law to encourage production and dispersion of
writer, Ernest Bourget, supported by their publisher,
creative works is displayed by the fact that it acknowledges
against ‗‗Ambassadeurs‘‘, a ‗‗café-concert‘‘ in the Avenue
creativity by offering benefits to the creator of the work in the
des Champs-Elysées in Paris. These gentlemen went to this
form of exclusive rights. But while trying to achieve this
café and whilst there, they heard the public performance of
purpose it puts limitation on creativity in a sense that
their work and pondered why they should pay any fees to
derivative works cannot be created without obtaining the
the café for their seats and meals seeing that the café did
permission of the author; and also on dissemination of the
not pay them for the exploitation of their work through
work because it provides copyright holders with a right to
public performance. They, therefore, instituted an action in
exclude others from copying, performing communicating the
court to compel the café to pay them for the exploitation of
newly created works. Therefore, the reward given for creator
their work. The court held in their favor and the café was
of a new work in the form of exclusive right acts, to some
obliged to pay a substantial amount of fees. This decision
extent, as an impediment to creation of additional works, in
opened a vista of opportunities for composers and text
relation to copyright protected works, and dissemination of
writers of non-dramatic musical works.24
already created ones.
The court‟s decision in this case opened opportunities for
Fragmentation of copyright, on its part, results from the fact
other authors who want to exercise the same right and
that copyright is a bundle of rights applicable to various types
established applicability of collective management of rights to
of use. It simply represents lack of cohesion, standardization
works of composers and text writers of non-dramatic musical
and effective organization of copyright law. 31 Copyright
works. But initial attempts to enjoy the newly established
consists of many right elements such as right to copy, referred
rights ended up only in the understanding that they couldn‟t
to as reproduction, right of public performance, broadcasting
be administered effectively by individual rights holders,25
right or any form of public communication, adaptation, right
thereby pointing to collective exercise of rights as an option. It
to make derivative work and others. In some cases, these
was this understanding that laid a foundation for collective
rights belong to different persons in respect to one work.
management of rights in copyright.
These combination of rights gathered under umbrella of
„At the end of the 19th century and during the first decades of copyright, as a single right, has an implication that for a single
the 20th century, similar authors' organizations (so-called use of copyright protected work, a user needs to secure several
performing rights societies) were formed in nearly all authorization. And this in turn causes uncomfortable situation
European countries and in some other countries as well.‟26 A for users whereby they are required to consult many right

21
. (Gervais), supra note 16, at 4.
22 27
. (Ola), supra note 18, at 14 . (Gervais), supra note 16, at 4
23 28
. (Gervais), supra note 16, at 4 . (Lowe), supra note 5, at 19
24 29
. (Ola), supra note 18, at 15 . (Gervais), supra note 16, at1
25 30
. Dr. Mihaly Fiscor, Collective Management of Copyright and Related . (Gervais), supra note 16, at1
31
Rights, 19 WIPO (2002) [This book is cited, despite the date, on the account . Daniel Gervais and Alana Maurushat, Fragmented Copyright, Fragmented
that it is listed as a material to refer in a recent WIPO publication. See: management: Proposals to Defrag Copyright Management, 2; available at:
(Lowe), supra note 5, at 7] <http://aix1.uottawa.ca/~dgervais/publications/Defragmenting%20Collective
26
. Id. %20Management%20of%20Copyright.pdf>

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International Journal of Research and Scientific Innovation (IJRSI) | Volume III, Issue XII, December 2016 | ISSN 2321–2705
holders or consult one right holder many times on several
rights to secure authorization.
In this case, what is needed to make the copyright system
work for users is a system whereby a single license to use all
the right fragments of the copyright and related rights can be
obtained.32 Such license needs to cover almost all, if not all,
copyright protected works to which a specific user needs
access and also needs to be obtained at once from one organ.
Here is the exact place where the relevance of CMOs comes
to picture. Such organizations issue a license covering a
bundle of rights that exist in copyright to large number of
users on behalf of many right holders who entrust the power
to administer their rights to the organization, which they form
among themselves for this purpose.
In a nutshell, the concept of collective management of
copyright and related rights had its theoretical root in two
main concepts: copyright paradox and fragmentation of rights.
In response to challenges to users that come from these two
facts, the idea of collective management of copyright
emerged. It is a system whereby group of right holders come
together and from a representative organization to collectively
exercise their rights against users of their works.
2.3. Basics of Operation of Collective Management System
The creator of a work in copyright protection system has the
right to allow or to prohibit the use of his works. This right,
expressed as the exclusive right of authors to exploit their
works or to authorize others to do so, forms a basic element of
copyright. The exclusive nature of a right means that nobody
else than the owner is in a position to decide whether he or she
will authorize the performance of any of the acts covered by
the right. The owner also has a right to decide under what
conditions and against what kind of remuneration his work is
going to be exploited by those who want to use it. He can
refuse or attach conditions, like payment of remuneration, to
the use of his work. This simply represents a personal exercise
of right.
But there exist a nightmare scenario where it is, for practical
reasons, very difficult or impossible for right holders to
exercise their rights personally. It is sometimes impossible for
an author to manage the use of all his works. For instance, in
Ethiopia Copyright and Neighbouring Rights Protection
(amendment) Proclamation33, established a royalty system
under which any person that uses copyright protected work for
commercial purpose pays the right owner for exploitation of
the work.34 Broadcasting institutions, hotels and lodges,
recreation centers, beauty salon, game centers, night clubs,
transportation and many other similar companies stand among
those who use a work for commercial purpose. To illustrate
32
. (Gervais), supra note 11, at 3.
33
. A Proclamation to amend the Copyright and Neighbouring Rights
Protection Proclamation, Proclamation No. 872/2014, FED. NEGARIT
GAZZETA 21st Year No. 20, Addis Ababa, 14th January, 2015
34
. (The proclamation as amended), supra note 10, Article 38
www.rsisinternational.org
the problem of individual exercise of rights in this case, let us
continue with night clubs as an example.
Think of operating a night club without use of any music;
doesn‟t it seem completely impossible? All persons operating
this business use wide range of music over a night. They have
collection of thousands of music collected from different
sources and belong to many lyricists. No one can produce his
own music, the variety and collection of which is sufficient to
operate night club. Therefore, we understand that businesses
are exploiting works produced by and the ownership of which
belongs to other individuals. Artists may be dissatisfied with
this; but had no legal ground to claim payment from users in a
form of royalty before the amendment of the law, after which
a fully-fledged royalty system is introduced in the copyright
law of the country.
After coming into force of the new proclamation, any person
who uses a work for commercial purpose is under duty to
make royalty payment for the owner of copyright over the
work being used.35 But the question of how the right holders
can exercise such right needs a clear answer. It is very
difficult for an artist to go throughout the country and consult
every night club operating in the county or any other business
commercially exploiting his work to ask payment of royalty.
On the other hand, a business center, say a club to continue
with our example, cannot consult every artist whose music or
work it is using. Additionally, it cannot know the owner of all
music so as to consult and negotiate on terms of use and
payment of royalty. This problem calls for a mechanism
whereby right holders can effectively exercise their right and
users of the work can get simple access to the work they need
without more difficulty and fear of copyright violation. CMOs
play a pivotal role in alleviating the problem. That is why the
amendment proclamation authorized right holders to form
CMO and jointly administer their rights. 36 Let us see how the
system works as follows.
The first point in the operation of the system is the fact that
CMOs are representative of their members. Copyright
collectives are formed when groups of copyright holders join
together into a single unit for the purposes of exploiting the
economic rights in their different copyrights. 37 Collective
management simply represents a group of copyright right
holders who agree to come together and establish an
organization that represents all of them in administering their
rights so as to address difficulties of personally exercising
such rights. The extent to which the organization takes the
place of right holders and details of activities it performs
depend on the type of the organization established, the law
under which it is established and operates, the agreement
between members and the organization and other relevant
factors. The organization formed is known as Collective
35
. (The proclamation as amended), supra note 10, Article 38(1)
36
. Id, Article 32 (1)
37
. Dr. Richard Watt, Collective Management as a Business Strategy for
Creators: An Introduction to the Economics of Collective Management of
Copyright and Related Rights,15, WIPO (2016)
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International Journal of Research and Scientific Innovation (IJRSI) | Volume III, Issue XII, December 2016 | ISSN 2321–2705
Management Organization (CMO), also frequently called
Authors‟ Societies.38 In the field of reprography, there are
specialized CMOs called Reproduction Rights Organizations
(RROs) and they, in most cases, represent authors of literary,
artistic and musical works as well as publishers in text and
image-based industries.39 As a result of an important and very
useful role CMOs play for both right holders and users of
copyright protected works, they have experienced
considerable development in parallel to the increased use of
works made possible by new technology. 40
CMOs, once established, act on behalf of their members in
administering their rights. Administration here represents
monitoring the use of the works concerned, negotiating with
the prospective users, giving them licenses against appropriate
fees and under appropriate conditions, collecting such fees
and distributing it to the owners of the rights. In order to
perform all these functions, an organization needs
authorization and willingness of members. Therefore, CMO
must acquire the authority to collect works, performances or
recordings. Such authority to license is granted by contracts
with right holders or other CMOs and sometimes by law.41
Then the organization issues license for use of works of its
members on the basis of agreed tariffs. If there is
disagreement with users on tariff for license, depending on the
choice of the legal system concerned, CMOs issue license on
prices set by a third party (court, tribunal, board, etc.)42
Another point is mechanism of determining the works on
which license of CMOs operate. CMOs need to know the
works of persons they are representing which is relevant both
in issuing license for users and in distributing collected fees to
right holders. To help this, members provide some personal
particulars and declare the works that they have created, upon
joining the organization and information they provided forms
part of the documentation of the collective management
organization that allows the link between the use of works and
payment for that use to be made to the real owner of the
rights.‟43 The works declared by each member become part of
collection kept by CMOs and such collection is termed as the
„repertoire of the organization.‟44 The sum of the rights of all
the right holders a CMO represents directly constitutes the
organization's own repertoire.45
All works collected from domestic right holders form part of
what is known as „national‟ or „local‟ repertoire. At
international level sometimes two or more CMOs of different
countries make agreement to license their respective repertoire
in the geographical area where they work. And a collection of
works obtained as a result of such agreement forms what is
38
. (World Intellectual Property office), supra note 2, at 387
39
. (Lowe), supra note 5, at 24, 45
40
. (World Intellectual Property office), supra note 2, at 387
41
. (Gervais), supra note 16, at 6
42
. Id.
43
. (World Intellectual Property office), supra note 2, at 389
44
. Id, at 389
45
. (European Commission Memo), supra note 7, at 3
www.rsisinternational.org
called „international repertoire‟ which is made up of the
foreign works managed by domestic CMOs. National
repertoires can be acquired in the form of mandates received
directly from rights holders or through their associations,
whereas foreign repertoires are acquired through
representation agreements with CMOs in other countries. 46
Having identified their repertoire, CMOs will then collect data
on usage of the works, process them and apply those data to
collect and distribute funds to right holders.47
The third and very important point in the operation of
collective management system is the nature of the license
obtained from CMOs. CMOs issue a non-exclusive blanket
license. Issuing license by which users of copyright works get
access to such works is one of primary functions of CMOs.
Users get non-exclusive license, which means that no user
gets exclusivity to the repertoire of the concerned
organization.48 The organization can issue license to all users
that want it and all users can enjoy access to the repertoire of
the organization. For instance, all broadcasting institutions can
play music from collection of the organization. As such, equal
treatment of all users is the cornerstone of collective
management.49 But difference among users in amount of
royalty payment is acceptable on reasonable grounds and
users are served on an equal basis, based on their use of
protected materials and their premises. 50 For instance, large
restaurants with many seats will pay higher price than those
with few seats and this is acceptable difference, non-
discrimination requires the tariff per seat to be the same for
all.
Blanket licensing, on its part, is the phrase used to explain the
fact that users obtain a license which grants them an
authorization to exploit any works in the CMO‟s repertoire,
normally based on a standardized set of agreed conditions. It
is a license granted in respect of all works under the
management of a particular CMO.51 CMOs do not license
their repertoire on a piecemeal basis by specifying each
covered work. The most crucial element of the day-to-day
operations of copyright collectives is the decision to offer a
blanket license covering the entire repertoire rather than
offering a myriad of different products, each containing a sub-
set of the repertoire, specifying the right down to single
works.52 Blanket licenses generally provide substantial value
to the rights users by encompassing the CMO‟s entire
repertoire within a standard fee and license structure. It
represents the action by CMOs that they, when issuing a
license to users do not consider each specific work in their
store; but issue a general license and the user, upon obtaining
46
. (Lowe), supra note 5, at 25
47
. (Gervais), supra note 16, at 6
48
. (Lowe), supra note 5, at 16
49
. Id.
50
. Id.
51
. International Confederation of Societies of Authors and Composers
(CICAS), The Role of Collective Management Organizations: Article, 2. Visit
<www.cicas.org>
52
. (Dr. Watt) supra note 37, at 23
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International Journal of Research and Scientific Innovation (IJRSI) | Volume III, Issue XII, December 2016 | ISSN 2321–2705
such license secures a right to exploit all works administrated
by the issuing organization.
To sum up, basic operation of collective management system
is that CMOs come into existence by willingness of group of
right holders to exercise their rights jointly. Such
organizations, then, obtain authority from the founders to
represent them in administration of rights. The works upon
which the organization obtains authority to issue use license
are collection of works of individual members. A single
license issued covers all works that the concerned CMO
administers and gives equal right for all users to whom it is
issued.
2.4. Roles and Functions of CMOs
CMOs, as organizations that specialize in administering
copyrights held by a large number of owners, play a
fundamental role in the copyright system. 53 They promote
legal access to copyright protected works of its members by
licensing these works to users and collect and distribute
royalties to its members whose works have been used by
licensed users. The principle of balance of interests is at the
core of intellectual property system and collective
management of copyright can effectively guarantee realization
of balance of interest.54
Collective management of copyright is conceived as an
efficient way for authors and other right owners to exercise
rights over their works that may be difficult to operate
individually.55 Many functions of CMOs can be understood
from the name itself which can be summed under one name as
„representing right holders in exercising legally recognized
rights.‟ Administrating the right on behalf of right holders,
which, among other things, includes: monitoring the use of
works concerned, negotiating with users on terms and
conditions under which license can be issued, issuing the
license when agreement is reached, following up the
compliance of use with the terms and conditions under which
license is issued, collecting fees, distributing it to right holders
and bringing legal action in case when they are authorized to
do so either by the law or by right holders, remains the
primary purpose of having CMOs. 56 They exercise these
rights on the repertoire which the right holders submit to
them.
CMOs make copyright system easy and accessible. The right
holders need a fair compensation for the exploitation of their
work, which they created by investing precious time, money
and intellectual ability. On the other hand, the users of a
copyright protected works, so long as they are willing to pay
53
. Aurobinda Panda and Atul Patel, Role of Collective Management
Organizations for Protection of Performers‘ Right in Music Industry: In the
Era of Digitalization, The Journal of World Intellectual Property (2012) Vol.
15, no. 2, 155, 155 (2012)
54
. (Han), supra note 14
55
. Wenqi Liu, Models of Collective Management of Copyright From an
International Perspective: Potential Changes for Enhancing Performance,
Journal of Intellectual Property Rights, Vol 17, January 2012, 46, 46
56
. (World Intellectual Property office), supra note 2
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right holders, need an easy access to the work in a way that is
free from a procedure that imposes much burden on them. In
case of individual exercise of rights, users cannot get easy
access to collection of works of many authors at once to
secure use right. Right holders also cannot exercise their
rights by controlling every activity of all users that is likely to
deteriorate their rights. Collective exercise of rights enables
right holders to create an organization that commits full of its
time to controlling and following up the use of their works
and ask payment in the form of royalty from all users. The
presence of a single institution, CMO, to approach for a
license allows users to save great deal of time and do away
with challenges they would have faced in searching individual
right holders. Right holders trust administration of their rights
to CMO and utilize their time for creativity. Therefore, CMOs
play important role in making the system easy and accessible
thereby serving needs of both sides.
CMOs also play an important role in promoting creation and
dissemination of new works. Such cultural and social
functions are particularly important in developing countries
where frequent extra efforts are needed to strength creative
capacity. In this regard, CMOs play two very important roles
through an effective fulfillment of their functions. 57 Firstly,
they contribute to the preservation of national cultural
identity. This purpose is served mainly in a sense that CMOs
follow up the observance of the conditions and limitation on
part of users representing right holders. This has the relevance
of saving right holders from wasting their precious time on
monitoring already existing right and gives them adequate
time to think and engage themselves in creation of additional
new piece of works. Secondly, CMOs have a role to play in
improving public acceptance of copyright where the copyright
is in quite weak and very defensive public relations. They can
undertake awareness creation campaigns on copyright
protection.
Even though representing right holders in managing and
monitoring rights remain the main feature of CMOs, practice
has uncovered that their functions are not limited to
representing members; they play an important role in creating
awareness about the copyright protection and create
conducive environment for exercise of rights. „Apart from
licensing, many organizations have additional tasks, such as
lobbying for and enabling environment which is a prerequisite
for licensing. Awareness of and information about copyright
is necessary for compliance and information sharing may thus
be among the tasks listed in the statutes.‟58 ‗CMOs may also
engage in other activities, such as cultural promotion, awards,
etc.‟59 The functions of and roles played by CMOs, therefore,
go beyond representing members in administering their rights,
An effective collective management system and active CMOs
can contribute many in creating legal awareness on copyright
issue thereby furthering the public understanding of the
57
. (Dr. Fiscor), supra note 25, at 21
58
. (Lowe), supra note 5, at 40
59
. (Gervais), supra note 16, at 6
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concept. Further, welfare protection and the promotion of depending on the category of works and the discussion here
cultural activities, though not compulsory, may be provided addresses only classification on this ground. CMOs take the
by CMOs. Such function, if provided, takes a form of following three major forms from view point of the category
deduction to be made from the collected royalties and they of works involved.66
may sponsor cultural activities to promote the national
Traditional Organizations: organizations taking this form act
repertoire of works at home and abroad.60 Therefore, they play
on behalf of their members in negotiating rates and terms of
an important function in preservation, protection and
license with users, issuing use licenses and collecting and
encouragement of creative activities in the fields of literature,
distributing royalties. The basic operation of this this type of
art, music, etc. Such social functions of promoting creativity
CMOs is in such a way that individual owner of rights does
serve not only the interests of their own members, but also the
not become directly involved in any of these steps. There is no
interest of the public at large.
contact between the right holder and the user; but the
CMOs also have a role to play as a lobbyist group for the organization takes full charge of negotiating with users
interest of their members. The actions and activities of CMOs representing right holders who are registered as its members.
can have its own impact on the legal environment and may
Rights Clearance Centers: „Some right holders authorize
influence national policy and law. „The circumstances
CMOs to manage their rights on the basis of individual tariffs
surrounding the birth of a particular collective licensing model
and other conditions.‟67 Here, CMOs plays an agency role and
may influence the drafting of accompanying legislation and
bring right holders and users together. Each individual right
shape the underlying policy of the state towards collective
holder fixes terms and conditions under which license can be
management.‟61 CMOs have played and continue to play an
issued and CMO deposits and operates on that condition.
important role in debates concerning international copyright
Then the organization grants licenses to users willing to
norms and their implementation in national and regional
accept the conditions for the use of works and the
legislation; they have tended to emphasize both the need to
remuneration terms set by each individual holder of rights.
defend authors and the efficiencies for both rights holders and
The term can be fixed in advance by the right holder or can be
users of collective licensing when compared to individual
negotiated between requesting user and right holder when the
licensing by rights holders.62 As a lobbyist, CMOs can put
user needs license. Hence, the distinguishing feature of this
pressure on the government to sign and ratify international
type remains the fact that the owner of the rights remains
treaties that provide better protection and can also have the
directly involved in setting the terms of use of his works.
national laws reviewed.
„This type of management is common among many
Generally, collective management of copyright allows Reproduction Rights Organizations that offer individualized
copyright right holders to monitor and control certain uses of services to their right holders.‟68
their works that would otherwise be unmanageable or less
One-stop-shops: Some times, CMOs come together and want
efficient individually owing to the large number of users. 63
to work joining hands by forming a system whereby a license
The presence of collective management provides right holders
can be obtained for all repertoire of each of them. One-stop-
with opportunity to use the power of collective bargaining to
shops are a sort of coalition of separate collective
obtain more for the use of their work and negotiate on a less
management organizations which offer users a centralized
unbalanced basis with large user groups. The roles and
mechanism of accepting license for large number of works
functions of CMOs go beyond representing its members and
represented by different organizations. CMOs form a single
clearly extend to cultural and social roles like awareness
unit and work together representing the interest of their
creation and promotion of cultural values by encouraging
respective members. It has the advantage that authorizations
creativity.
can be easily and quickly obtained.69 This form just represents
2.5. Major Types of CMOs two or more CMOs having a joint venture or other form of
association to offer an aggregated repertoire on multi
The nature and status of CMOs may differ in various respects
territorial bases.70
and the type of organization that operates in a given
jurisdiction depends on the choice to which that legal system
III. COPYRIGHT LAW AND THE CONCEPT OF
adhered. They differ in respect of: form and extent of
COLLECTIVE MANAGEMENT OF RIGHTS IN
government intervention, the scope of their role and types of
ETHIOPIA
right they manage, exercise of a monopoly power 64 and
category of works involved.65 The major point of division is 3.1. An Overview of Copyright Law in Ethiopia

60
. (World Intellectual Property office), supra note 2, at 391
61
. Professor Daniel Gervais et al, Collective Management of Copyright and
66
Related Rights, XX (2006) . Id, at 399
62 67
. Id. . (Lowe), supra note 5, at 46
63 68
. Id. at 19 . Id.
64 69
. (Liu), supra note 55 . (World Intellectual Property office), supra note 2, at 399
65 70
. (World Intellectual Property office), supra note 2, at 399 . (Lowe), supra note 5, at 46

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International Journal of Research and Scientific Innovation (IJRSI) | Volume III, Issue XII, December 2016 | ISSN 2321–2705
In Ethiopia, intellectual property in general and copyright in
particular is a recent development compared to other
countries, pioneers of it.71 The introduction of policy, legal
and institutional frame work in the country relating to
intellectual property is a recent phenomenon. The lack of
awareness on the relevance of intellectual property protection
and the resulting economic benefits stands as a prominent
reason for underdevelopment of the sector.72 The 1995
constitution of Federal Democratic Republic of Ethiopia
(FDRE) entrusted the power of protecting copyright to the
federal government73 and the power to issue copyright law to
HPR.74 The cultural policy of Ethiopia also recognizes the
need for the protection and promotion of the copyright
industries.75
Copyright protection appeared in legal history of Ethiopia
during the mid-20th century immense codification. The 1957
penal code had provisions providing a punishment for
infringement of copyright. 76 The 1960 Civil Code on its part
had an independent section with the title “Literary and Artistic
Ownership” and as such it gave the first organized rule on
copyright.77 However, these previously existing laws were not
comprehensive enough to address all copyright issues and in
response to this fact, in 2004, the HPR issued Copyright and
Neighbouring Rights Protection Proclamation No. 410/2004.
It was the first comprehensive law on the issue of copyright
covering many issues in detail.
The proclamation protects literary, artistic, and other creative
works. Article 2(30) (as amended) gives the list of areas
covered by the protection as work.78 It extended protection to
wide areas of literary and artistic works. The rights of
performers, producers of sound recordings, and broadcasting
organizations are protected as related rights. 79 These rights
protect the legal interests of persons and legal entities who
71
. Daniel Mitiku, Fair Practice Under Copyright Law of Ethiopia: The Case
of Education, 63, 2010 (LLM Thesis, unpublished)
72
. Getachew Mengistie (Former Director General of Ethiopian Intellectual
Property Office), Intellectual Property Assessment in Ethiopia, 10, (2006)
73
. FDRE Constitution, Proclamation No 1/1995, FED. NEGARIT
GAZETTE, 1st Year No.1, 1995 (here after FDRE Constitution), Articles
51(19) and 77(5)
74
. FDRE Constitution, Article 55 (2) (g)
75
. World Intellectual Property Office, National Studies on Assessing the
Economic Contribution of the Copyright Industries: Creative Industries
Series No. 9, 15 (2014)
76
. Penal Code of the Empire of Ethiopia: Proclamation No. 158 of 1957,
NEGARIT GAZETA Gazette Extraordinary, 16th Year No.1, Addis Ababa,
23rd July, 1957, Articles 675 and 676
77
. Civil Code of the Empire of Ethiopia: Proclamation No. 165 of 1960,
NEGARIT GAZETA Gazette Extraordinary, 19th Year No.2, Addis Ababa
5th May 1960, Articles 1647-1674
78
. The list shows that areas of protection includes Books, booklets, articles in
reviews and newspapers, and computer programs, speeches, lectures,
addresses, sermons, and other oral works, dramatic arts, dramatic musical
works, pantomimes, choreographic works, and other works created for stage
production, musical compositions, audiovisual works, works of architecture,
works of drawing, painting, sculpture, engraving, lithography, tapestry, and
other works of fine art, photographic works, illustrations, maps, plans,
sketches, and three-dimensional works related to geography, topography,
architecture, or science and applied arts.
79
. (The Proclamation as amended), Supra note 10, Article 3 (6)
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contribute to making works available to the public. 80 Related
rights give to the right holders the exclusive right to carry out
or authorize activities relating to broadcasting or re-
broadcasting, reproduction and rental of performances, sound
recordings, and broadcasts. The proclamation also protects
works based on or derived from already existing works. These
are translations, adaptations, arrangements, and other
transformations or modifications of works; and collections of
works such as encyclopedias, anthologies, or databases,
whether in machine-readable or other form, provided that the
collection has original traits. 81
In addition to extending protection to wide range areas of
works, the proclamation also provided detailed rules on
requirements to claim copyright protection, 82 exceptions to the
rights of copyright owners that are intended to strike a balance
between the interests of authors and the interests of users and
the public at large,83 duration, ownership and licensing of
rights,84 and enforcement of rights and remedies for
infringements.85 Despite the detailed rules and its
comprehensive nature, the proclamation (410/2004) ignored
two main issues: payment of royalty for right holders and
collective management of rights. To address this gap, HPR
issued, ten years after the issuance of the proclamation,
Copyright and Neighbouring Rights Protection (Amendment)
Proclamation No. 872/2014. It was in this amendment
proclamation that the concept of collective management of
copyright obtained legal recognition in the country for the first
time.
3.2. Collective Management of Copyright and Related Rights.
The concept of collective management of rights which has
existed in history for more than two centuries had its way to
Ethiopian law only two years before. As explained above
Copyright and Neighbouring Rights Protection (Amendment)
Proclamation No. 872/2014 was the first law in the country to
give legal recognition to the concept. Even though some
provisions of the first proclamation were amended, the main
areas addressed by the amendment were recognition of royalty
and collective management of rights. The explanations of
other amendments, including the royalty, do not form part of
this work and let us proceed with some notes on collective
management of rights.
The proclamation gives only the definition of collective
management society without defining what collective
management is and one needs to refer literature or other useful
sources to understand the concept. It may be understood from
the name itself and, as explained in part two herein, collective
management represents an action by copyright right holders
who wish to form an organization that represents them in
administering their exclusive rights. It is the exercise of
80
. (WIPO Study), supra note 75, at 16
81
. (The proclamation as amended), supra note 10, Article 4.
82
. Id, Article 6
83
. Id, Articles 9-19
84
. Id, Articles 20-25
85
. Id, Articles 33-36
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International Journal of Research and Scientific Innovation (IJRSI) | Volume III, Issue XII, December 2016 | ISSN 2321–2705
copyright and related rights by organizations acting on behalf
of the owners of rights.86 A right holder (for example an
author of a book, a song composer, or lyricist, a performer,
record or film producer or broadcaster) can normally choose
between individual management (management by the right
holder himself), or collective management of their rights,
where right holders jointly administer their right. Collective
management of rights represents the second option and is
mostly carried out by collective management organizations
(often also referred to as “collecting societies”).87 In Ethiopia,
it is termed as collective management society, herein after
referred to as CMO(s), and defined as a society formed by the
owners of copyright and neighboring rights to jointly
administer their rights.88
3.2.1. Formation of CMOs and Pre-conditions for
Establishment
Copyright law, as amended, has now given legal recognition
for the collective management and authorized right holders to
form CMOs and administer their rights jointly if they dare to
do so89 and explaining the concept as it exist in Ethiopian law
is necessary to facilitate understanding of how it works and
exercise of the newly recognized rights. CMO in Ethiopia can
be formed only for non-profit making purpose and its internal
organizational structure is determined by memorandum of
association prepared by founders.90 The formation doesn‟t
automatically result from the willingness of right holders to
come together and the preparation of necessary documents,
including memorandum of association. The proposed
organization must obtain recognition from EIPO to become
fully functional.91 Generally, the formation CMO is subject to
the following preconditions.92
Firstly, a written application should be submitted to EIPO for
recognition of the formation of the society. Article 33 (1) of
the proclamation, as amended, provides that the document
needs to be accompanied by description of types of members‟
creative works (which will be repertoire of the society), its
internal rules and regulations, memorandum of association
and list of sectoral associations established under it with the
list of their respective individual members. No CMO can be
formally and legally established until the application obtains
acceptance from EIPO.
One may bother why the establishment of CMO should be
subjected to such approval; but its importance can be seen
from two perspectives. It helps the office to look after the
fulfillment of preconditions for the establishment. „Rights
86
. Visit official website of WIPO at:<www.wipo.int/copyright/en/ >
accessed on 12/Nov/2016 at 08:32pm
87
. (European Commission Memo), supra note 7, at 2
88
. (The proclamation as amended), supra note 10, Article 2(32)
89
. Id, Article 32 (1)
90
. Id, Article 32 (3)(4)
91
. Id, Article 32 (2)
92
. To see the preconditions for formation of CMOs, one can visit the official
website of EIPO at <www.eipo.gov.et/royalty > in addition to the provisions
of the law.
www.rsisinternational.org
management is a business: CMOs handle other people‟s
money and need to be run with utmost diligence.‟ 93
Legislation in many countries presuppose authorization from
the relevant government authority before the activities can
start and the most crucial issues at the outset are whether the
organization has sufficient representation of rights holders in
its category and has a good capacity to manage rights. 94
Therefore, the primary aim of requiring approval from the
office is to verify both the functioning of the license scheme
of the organization and the appropriateness of tariff rates and
other dealings with users.
Secondly, the approval is important to address the problem
that is likely to result from existence of more than one CMOs
in the same area of copyright protection. This is relevant when
seen from the fact that in Ethiopia the establishment of CMOs
is left to the freedom of association of authors and other
owners of rights. Such freedom bears its own problem and
sometimes it creates temporary confusion, because several
organizations may be founded which start to compete and, in
certain cases, even fight with each other. 95 Furthermore, a
system which allows existence of more than one organization
for the same right and/or group of rights, like that of Ethiopia,
poses many challenges to management of rights.96 Users can
take undue advantage of this situation and refuse to take a
license, blaming unclear representation of each CMO, or
speculate on the tariff to be paid which is detrimental to right
holders.97 „If many CMOs compete for rights holders in the
same category, they may be tempted to compete with their
administrative costs and as a consequence lower their
standards of accuracy in distribution of remuneration.‟ 98
The relevance of putting approval by EIPO as a precondition
for the establishment of CMO can be clearly understood
against these facts. The office gives approval to a newly
formed organization looking details of its purpose and
analyzing it in line with already existing organizations. This
makes a clear demarcation between two or more organizations
as to right holders and type of work they represent thereby
reducing conflict of interests. Clarity on this point also helps
users to easily determine which organization to approach for a
given license or to get access to a work of certain right
holder(s). Approval by the office, therefore serves as
controlling mechanism and the office may revoke the
recognition when CMO acts outside its power and duties. 99
The practice of making the establishment of a CMOs
conditional on the approval of a public authority is common in
some European countries and the Ministry of Culture (in
France and Spain), the Ministry of Justice or the Patent Office
93
. (Lowe), supra note 5, at 34
94
.Id, at 25
95
. (Dr. Fiscor), supra note 25, at 41
96
. (Lowe), supra note 5, at 30
97
. Id.
98
. Id.
99
.(The proclamation as amended), supra note 10, Article 37 (1)
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International Journal of Research and Scientific Innovation (IJRSI) | Volume III, Issue XII, December 2016 | ISSN 2321–2705
(in Germany) stand as an example in this regard. 100 The
criteria used in deciding whether or not to give such approval
include: the degree to which the proposed society is
representative of the category of rights owner it seeks to
represent, the volume of potential users, the suitability of its
statutes and the means by which it proposes to achieve its
aims both nationally and internationally.101 EIPO can take
lesson from these countries to realize the need for having
standards against which the approval may be given or denied
for a CMO proposed by right holders and have predetermined
rules on the issue.
The second precondition for the establishment of CMOs is the
presence, under the intended society, of at least three sectoral
associations as Article 32 (2) as amended shows. The
discussion on types of CMOs in part two of this article has
disclosed that CMOs differ among countries depending on the
choice of the jurisdiction. In Ethiopia, requirement of at least
three subsectors as a precondition for formation of CMO
makes it clear that no CMO can be established to represent
one sector only, say for instance, music producers or book
authors only. The point can be interpreted in two ways. First
in a sense it means that there should be at least three copyright
protection sectors in one organization (for instance, book
authors, music producers and painters together) and secondly
it can be understood as meaning presence of at least three
right holders associations even if three of them belong to the
same sector of copyright (for instance, associations of music
producers, performers and lyricists together.) The author in
this article argues that the interpretation should follow the
second line for the following reasons.
First, following the first line may have effect of delaying
practical establishment of CMOs because it is not this much
easy for three sectors of copyright protection to come together
and reach agreement to join their works and make it repertoire
of their organization. Copyright covers a wide encompassing
many areas of creativity that may have no relation with one
another. Book authors and lyricists may be people of different
world, though both enjoy copyright protection, and agreement
cannot be easily reached between them to join their works and
manage it together. Requiring, as a must, these right holders to
establish one organization for joint exercise of right may delay
establishment or even make the system impractical.
Second, the nature of rights in different copyright sectors may
have relevance in determining the type of organization to be
established. For instance, licensing the use of dramatic and
dramatico-musical works involves an element of individual
100
.International Confederation of Societies of Authors and Composers
(CICAS), The Supervision of Collective Management Organizations: Article,
2 (2016) available
<http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&v
ed=0ahUKEwj_xsirraDQAhXL7RQKHePcAv0QFgguMAM&url=http%3A
%2F%2Fwww.springer.com%2Fcda%2Fcontent%2Fdocument%2Fcda_dow
nloaddocument%2F9783642358180-c2.pdf%3FSGWID%3D0-0-45-
1379024-p174803847&usg=AFQjCNFmojRyp-
ZVmrhqhwRzZDuV8qxewQ>
101
. Id.
www.rsisinternational.org
negotiation and is often characterized as partial collective
management.102 Rights Clearance type of CMO fits for this
purpose as can be understood from discussion in section two.
In addition, CMO in the field of reprography is a specialized
organization called Reproduction Rights Organizations
(RROs)103 and forming CMO together with other copyright
sectors may be inconvenient for them.
Thirdly, many organizations that represent only one copyright
sector have been established in other jurisdictions. In Austria,
VAM (Verwertungsgesellschaft für audiovisuelle Medien
GmbH) was founded in 2007 to administrate the rights and
royalties due to film producers in Austria and abroad and it
administers only commercially produced films which are
longer than ten minutes. Film directors are right holders
represented in it.104 Institutions that represent only one sector
of right holders exist also in UK (CELAS which represents
music publishers), USA (HFA - Harry Fox Agency, which
represents music publishers for their mechanical and digital
licenses, issuing licenses and collecting and distributing
royalties on behalf of affiliated publishers.) and other
countries.105
For these reasons, the requirement of at least three sectors
should be understood as meaning three sectoral associations
notwithstanding that they belong to the same copyright
protection sector. Clarifying this point for right holders,
whether it takes the first or second line by issuing a guideline,
directive or regulation for establishment of CMOs, facilitates
the understanding of the requirement and helps right holders
to establish their organization accordingly.
3.2.2. Powers, Duties and Operation of CMOs
The powers and duties of CMOs are listed under Article 34 of
the proclamation as amended. Many of the powers listed show
the traditional roles of CMOs and may be understood easily.
The traditional function is representing right holders in
administration of their rights. It includes negotiating on terms
of license with users, collecting royalties from users,
distributing it for right holders, withholding taxes from
collected fees and submitting to relevant authority and other
related functions. Even if the functions listed under Article 34
are clear, at least for one who understands the concept of
collective management, some of them need further
clarification and let us continue with sub articles (2), (6), (7)
and (9) of this article.
Pursuant to Article 34 (2), CMOs are given power to prepare a
royalty scheme, submit it to EIPO and implement it upon
approval. Royalty scheme is a method employed to calculate
102
at: . (Lowe), supra note 5, at 24
103
. Id, at 45
104
.<
www.collectingsocietieshb.com/CollectingSocieties/DisplayCollectingSocieti
es?societyfk=138 > accessed on 12/Nov/2016 at 08:07 pm
105
. Information on CMOs in many countries is available on „Collecting
Societies Handbook‟ which can be accessed online at: <
www.collectingsocietieshb.com >
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the amount of royalty collected from the users of work based
on the type of work and the category of users. 106 CMO, while
fixing the royalty scheme, is required to take into account the
country‟s objective reality. There is something worth
considering regarding the way royalty scheme is fixed. It is
desirable to ask whether the royalty scheme fixed by CMO
will be enforced against users only on the ground that the
organization decided it taking in to account objective realities
of the country and it is approved by EIPO. If so what is the
place of users in determination of the royalty they are going to
pay for use of copyright protected works? Don‟t they need a
chance to negotiate?
In other jurisdictions, royalty scheme is the result of
negotiation between CMOs and users. If they fail to reach
agreement, a third party like tribunal, court, copyright board
or other body determines a reasonable fee for royalty
payment. In Australia, for instance, Federal Court of Australia
and State Supreme Courts have jurisdiction to determine a
reasonable license terms where it cannot be agreed.107 Canada
follows a good trend in which Copyright Board of Canada
organizes hearings on tariff proposals filed by CMOs; then
tariff rates confirmed by the board are published in official
gazette.108 In China, any ordinary court can determine whether
a license term is reasonable.109 Other countries in which a
third party has jurisdiction to decide reasonable license terms
when agreement cannot be reached between users and CMOs
include Kenya (High Court)110, Brazil (State Courts)111 and
Colombia (Civil Court Judges or the Colombian Copyright
Office)112,among others. The proclamation needs to clarify
this issue. The determination of royalty scheme should not be
left to determination by CMOs and approval by EIPO. The
participation of users, who are expected make actual payment,
in the determination of royalty fee should be permitted and
royalty scheme should be an outcome of negotiation between
CMO and users. If users‟ participation is allowed, the law also
needs to make it clear whether either regular courts or
Intellectual Property Tribunal113 has jurisdiction to determine
reasonable fee where negotiation between CMO and users
106
. (The proclamation as amended), supra note 10, Article 2 (33)
107
.
<www.collectingsocietieshb.com/CollectingSocieties/DisplayCollectingSocie
ties?societyfk=1>
108
109
. (Lowe), supra note 5, at 31, Visit also: < www.cb-cda.gc.ca >
.<
www.collectingsocietieshb.com/CollectingSocieties/DisplayCollectingSocieti
es?societyfk=8 > accessed on 19/Nov/2016 at 09:28pm
110
. CMOs, as a legal person, can have rights and duties in
<www.collectingsocietieshb.com/CollectingSocieties/DisplayCollectingSocie
ties?societyfk=42 > accessed on 19/Nov/2016 at 09:22pm
111
.<
www.collectingsocietieshb.com/CollectingSocieties/DisplayCollectingSocieti
es?societyfk=5 > accessed on 19/Nov/2016 at 09:35pm
112
. holders, CMOs will have a legal stand to bring action against
<www.collectingsocietieshb.com/CollectingSocieties/DisplayCollectingSocieti
es?societyfk=9 > accessed on 19/Nov/2016 at 09:48pm
113
. One of the amendments made by proclamation No. 872 is the
establishment of Intellectual Property Tribunal for the adjudication of civil
cases arising in relation to rights established by copyright proclamation, other
than extra contractual liability cases. (See Article 44(1) as amended)
www.rsisinternational.org
results in disagreement to fix a royalty scheme. This issue can
be clarified by regulation or a law that will be issued to
establish Intellectual Property Tribunal.
Article 34(6) entrusts CMOs with the power of collecting
royalties from works without master to pay it to EIPO. Work
without master is defined as a work which have been declared
by the court of law as a work without a master. 114 This
definition may be unclear and may need further clarification
to understand. This being so, by reading the definition as it
exists we understand that we cannot know whether a given
work is work without master or not until it is declared by
court of law to be so. With regard to power of collecting
royalty from works without master, it is important to
understand that even in case when the work has been declared
by court and known to be a work without master, it is not all
CMOs that have power to collect royalty from the use of such
works. Article 39(1) says that the organization to collect such
royalty is selected by EIPO from among CMOs depending on
the type of work. Therefore, when a court declares a work as
work without master, the power of CMOs to collect royalty
from such work(s) does not automatically fall in the
jurisdiction of all such organizations and it will only be the
power of CMO(s) entrusted with this power by the office. As
such, Article 34(6) is not applicable to all CMOs. Before
making any payment of such type to certain CMO, users of
the work need to verify that the power has been given to the
organization by EIPO.
Finally, let us consider Article 34(7) before winding up
discussion on powers of CMOs to turn to duties and
operations elements. The power to own property, enter into
contract and sue or be sued in its own name has been
bestowed on CMOs under this sub article. These things are
reflections of legal personality and the organization legally
formed can have such rights. „CMOs can assist compliance
with copyright laws by initiating legal actions in their own
name or assisting rights holders to pursue legal actions against
unauthorized uses.‟115 But still the right to sue or be sued
needs to be considered for clarity. A proxy or mandate given
for CMO from rights holders specifies whether the mandate
entitles the organization to initiate legal action on its own
move116 or the power may have already been given by the law
as it is the case in some countries.117 In Ethiopia, the power to
sue or being sued given to CMOs under Article 34(7) needs to
be clarified on whether it refers only action by the
organization to defend its own properties and interests (a
dependent of right of its members) or extends to initiation of
legal actions on behalf of right holders regarding violation of
copyrights. Clarity on this point is important because if the
law has given power extended to representation of right
114
. (The proclamation as amended), supra note 10, Article 2(34)
115
. (Lowe), supra note 5, at 20
116
. Id, at 29
117
. Id, at 41
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pirates without seeking authorization for such purpose from
right holders. If not, an act by which the organization secures
representation right from right holders needs to address the
issue and in case when the power cannot be obtained from
both law and action of right holders, a special proxy is needed
for legal action.118
Turning to duties of CMOs, though the caption of Article 34
is ―powers and duties of collective management societies‖,
duty elements are not well articulated and the list balances to
powers. The only list that stands clear to be duty is sub article
4 that requires CMO to withhold income tax from collected
royalties in accordance with law from royalties distributed to
members and pay the same to the appropriate revenue
collecting body. This, however, does not mean that it is the
only duty of CMOs stipulated in the proclamation. There are
other duties scattered in the proclamation like, for instance,
Article 36(3) that requires CMO to submit audited financial
reports of the last year and its budget of the following year to
EIPO. Many of such requirements have the purpose of
controlling functions of CMOs and, hence, will be dealt with
in section dealing with control herein under.
So long as operation of CMOs is concerned, the first
important thing to remember is the fact that they should
always be established only for no-profit making purpose.119
The purpose of having CMOs is to help right holders devise
the mechanism by which they can effectively and jointly
enforce their rights when it is impractical or impossible to do
so individually. The legal status and organizational form of a
CMO varies from country to country, depending on general
legislation. Most CMOs are not-for-profit organizations set up
and owned by rights holders. 120 They are not-for-profit in a
sense that the remuneration they collect is not the money of
the CMO, but money that they hold in trust for rights
holders.121 Ethiopian law has provided a legal rule that CMOs
should always be nonprofit. For that matter, though one of
initial consideration of establishing CMO is determining on
whether it will take a form of commercial or non-commercial,
this is not relevant in Ethiopia as it has been predetermined by
the law.
The other point to consider in line with operation of CMO is
the budget with which it performs its functions. There is a
commonly understood principle that operational costs of
CMO are deducted from total collection of royalty and the rest
is distributed to rights holders; and it is based on the notion
that the collected remuneration is not the money of the CMO
and they are not-for-profit organization in need of money with
which they operate.122 In some countries, the amount of costs
that can be deducted from total revenue is defined by the law
or regulations pertaining to collective management and where
this is not the case, there are industry standards for defining
118
. Id, at 29
119
. (The proclamation as amended), supra note 10, Article 32(3)
120
. (Lowe), supra note 5, at 25
121
. Id, at 26
122
. (Lowe), supra note 5, at 52
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maximum cost shares.123 In Ethiopia, the source of budget for
operation of CMOs include: membership contribution,
deductions made from royalties collected and fees collected
from other sources.124 Regarding the amount of deduction to
be made from collected royalties, the proclamation followed
the trend of fixing maximum amount of such deduction by the
law. Accordingly, the annual deduction is allowed only up to
thirty percent of the collected amount. The deduction is also
subject to approval by EIPO. (See article 35(2) and (3))
3.2.3. Controlling Operations of CMOs
Copyright collectives have not been without controversy in a
sense that the aggregation of many individual copyrights in to
a single marketable repertory which is licensed as a single unit
has made some to suspect that it may result in creation of
unacceptable monopoly power. Due to this, it has been
common for activities of such organizations to be subjected to
regulation.125 In the operation of CMOs, there is undoubtedly
room for greater transparency, although many such
organizations do provide annual reports and try to provide
some insight into their operations. 126 CMOs have a duty to
keep the rights holders informed about the way they manage
their rights, collect remuneration from the users and distribute
it to the rights holders.127 At the international level, a
consensus has developed on the desirability of some measures
of public oversight on activities of CMOs, to defuse the
perception of potential for abuse as a result of their dominant
position.128 „From time to time CMOs are called upon to
respond to legal challenges from rights users claiming some
abuse of a dominant position contrary to the rules of
competition law.‟129 The insufficient transparency and control
of the way collective management organizations are managed
remains to be an underlying problem. 130
Strong reporting obligations and right holders‟ control over
activities of CMOs are useful to promote greater transparency
and improved governance of such organizations and to create
123
. Id.
124
. (The proclamation as amended), supra note 10, Article 35
125
. (Dr. Watt) supra note 37, at 15
126
. (Gervais), supra note 16, at 10
127
. European Broadcasting Union (EBU), Extended Collective Licensing: A
Value Catalyst for the Creative Content Economy in Europe, 4 (2016): Visit
<www.eurovision.com>
128
. (International Confederation of Societies of Authors and Composers),
supra note 100; This source also indicates: it was against this fact that the
European Commission put forward a proposal for a European Directive on
collective administration of rights in 2012, which had the aim of supporting
the high standards of governance and transparency of CMOs by enhancing
the role of rights owners in their oversight and management. The directive,
The Collective Management of Copyright (EU Directive) Regulations 2016,
Statutory Instruments 2016 No. 221 has been issued. Full text of the directive
in pdf format can be accessed at: <
http://www.legislation.gov.uk/id/uksi/2016/221>.
129
. (International Confederation of Societies of Authors and Composers),
supra note 100, at 2
130
. (European Commission Memo), supra note 7, at 4
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incentives for more innovative and better quality services. 131 mechanism, the proclamation has also provided for other
Therefore, putting into place strong controlling mechanisms controlling mechanisms, some which are explained as follows.
remain crucial issue in collective management of copyright
Firstly, the control by EIPO, which starts at the outset by
and related rights. The nature of such control may take a form
approving establishment of the organization, is extended by
of external or internal control. The external control represents
the law to continue at any time of the existence of the
supervision and oversight by copyright office or other
organization. The oversight continues after the initial approval
competent body authorized to do so.132 It may also include
is given and involves an on-going monitoring and surveillance
control by the law itself which is framed in legal provisions
of the CMO‟s activities. Article 36(5) authorizes the office to
that put mandatory obligation on CMOs, for instance, which
request CMOs, at any time, to submit a financial report and to
requires reporting on a defined time interval or defines the
inspect its books of accounts. As a principle, the proclamation
maximum deductible value from collected royalties to cover
provides that CMOs must keep complete and accurate books
budget. „CMOs are naturally subject to the legal requirements
of account which, together with all financial documents of the
covering their company form, whether the law of associations,
organization, shall annually be audited by external auditors. 137
company law or an equivalent.‟133
A legal requirement has been imposed under Art 36 (3) that
The external control, on the other hand, is in the hands of the audited financial reports of last year and the budget plan of
rights holders themselves.134 Members exercise their control the following year be submitted to EIPO by CMOs. Therefore,
while selecting representatives in the governing bodies, who control on CMOs books of account by the office as provided
will take charge of the smooth running of the organization. for under Article 36 forms a type of external control on their
There are a number of ways through which right holders take operation.
part in decision making. These, among others, include voting
Secondly, the law has put a control on budget of CMOs. As
on and influencing strategic decision of the organization
explained above, due to their not-for-profit nature, CMOs
through general meeting, ensuring, through election of
need to secure budget source and deduction from collected
members of the executive organ, that the composition has a
royalties has been mentioned as one source of budget. As it is
balanced representation of rights holders‟ categories, by
a case in many countries, the proclamation has imposed legal
commenting on influencing appointment of Chief Executive
limitation on the amount of deduction to be made for this
Officer (CEO) and by ensuring the inclusion, in the
purpose. Accordingly, a maximum thirty percent limitation
organization‟s statute, of high standards of good governance
under Article 35(2) forms an external control by the law to
to which the organization has to adhere. The statute of the
avoid unreasonable exploitation of royalties collected on
organization is fixed by members themselves and defines its
behalf of right holders from their works. To ensure
governance structure, objectives and scope of operation. It
observance of this requirement, the amount of deduction made
also answers the questions of the rights to be managed by the
on this ground is required to be submitted to EIPO for
CMO, membership qualifications and preconditions, if any,
approval; and this forms another control by the office. Control
and nature, type and frequency of statutory meetings. 135 This
over budget determination is, therefore, another area of
provides right holders with great opportunity to devise a
external control.
mechanism by which the operation of their CMO can be
subjected to acceptable standard of control. Lastly, EIPO has been given a power to revoke recognition
given to any CMOs upon fulfillment of one of the grounds
Having said these on controlling of CMOs, it is desirable to
under Article 37 of the proclamation. There are three grounds
ask whether the proclamation has provided for adequate
under this article one of which, in the view of this author,
controlling mechanisms on activities of CMOs in Ethiopia.
needs to think over it to make it clear. The first two grounds
Somewhere in this text, it has been explained that the
are explained under sub articles 1 and 2 and constitute an
establishment of CMO in Ethiopia is subject to approval by
action by CMO that is contrary to its powers and duties
EIPO. (Article 32(2) as amended) This approval exactly
stipulated under the proclamation and decision by members,
represents one ground of external controlling mechanism by
by majority vote, to dissolve the organization. The third
the office. The office verifies the functioning of the system
ground that needs critical consideration is one under sub
under which the organization is intended to be established and
article 3 that authorizes revocation upon order by a court
fulfillment of preconditions thereby exercising controlling
having jurisdiction. This sub-article is not clear as to the
power. The office also approves a manual of CMOs for
ground upon which a court can make such order; upon its own
collection and distribution of royalties. 136 These being one
initiative or when application requiring such order is
submitted to the court? If upon its initiative, what things can
131
. European Consumer Organization (BEUC), Collective management of be ground for such decision? If application has to be filed
Copyright and Related Rights and Multi-territorial licensing of Rights in first, who can have a legal stand? This issues need
Musical works for Online: Proposal for a Directive, 4 (2013)
132
. (Lowe), supra not 5, at 33
clarification. A court having jurisdiction for this purpose also
133
. Id. needs to be defined.
134
. Id, at 26, 33
135
. (Lowe), supra note 5, at 27
136 137
. (The proclamation as amended), supra note 10, Article 34(3) . Id, Articles 36 (1)and (2)

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Another important point to consider about this sub article is a
discrepancy between Amharic and English versions, which
has relevance in determining an organ having competence to
give the order. This is important especially when seen in line
with the establishment of Intellectual Property Tribunal. The
Amharic version goes saying ―ሥልጣ ባለዉ የዳኝነት አካል
………. ዉ የተላለፈበት ሆ ነዉ፡፡‖ The exact English
translation of this phrase says ―…when competent organ with
judicial power orders.‖ According to this version, Intellectual
Property Tribunal will have power to give such order because
it is a judicial organ established by the law. But according to
the English version of the proclamation, which says ―when a
court of law having jurisdiction orders……..‖ the tribunal will
have no such jurisdiction because the power is given for
„court‟ only, not for competent organ with judicial power. At
this point, one may think of the principle that gives upper
hand for the Amharic version in case of discrepancy138 and
conclude that the tribunal has jurisdiction as per the Amharic
version. But still it is relevant to study and determine the
intention of the legislature to determine the version to be used.
If the intention is to give the power only to courts, Amharic
version should be corrected to English one. If the intention is
well represented by Amharic version, entering the correction
of English version may not be a necessary requirement, but
one has to take care of always using the Amharic version by
sacrificing the English due to the discrepancy that activates
the principle of Amharic prevalence. A law to come for the
establishment of Intellectual Property Tribunal may address
this issue while defining powers of the tribunal.
Turning to the issue of internal control of CMOs by the right
holders, the proclamation has no provision that talks about
this. All controlling mechanisms provided by the
proclamation are that of external control in a way that they
either fix a mandatory legal requirement or subject certain
action to approval by EIPO. However, it is not to say that the
law has no place for the system of internal control. Naturally,
internal control mechanisms are fixed and exercised by right
holders themselves, as explanation above makes it clear. The
proclamation provides that an application to be submitted to
EIPO for establishment of CMO needs to be accompanied by
memorandum of association and internal rules and regulations
for the intended organization.139 These documents are
prepared by right holders and there is wide opportunity here to
insert sufficient internal controlling mechanisms. The power
to fix the rules on powers and composition of the Executive
Organ, for example board of director, which is responsible for
the general management and policy decisions of the
organization; and the rules on appointment and power of the
director who has overall responsibility for operations that
138
. A Proclamation to Provide for the Establishment of the Federal Negarit
Gazeta, Proclamation No. 3/1995, FED. NEGARIT GAZZETA 1st Year No.
3, Addis Ababa, 22nd August 1995. Article 2(4)
This article provides: ―The Federal Negarit Gazeta shall be published in both
the Amharic and English Languages; in case of discrepancy between the two
versions the Amharic shall prevail.‖
139
. (The proclamation as amended), supra note 10, Article 33(1) (b) and (c)
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affect the day-to-day business and success of the organization
are in the hands of right holders. These rules are set by
internal rules and memorandum of association and right
holders need to be wise while discussing on drafts of such
documents. Referring to documents and trends of other
countries‟ CMOs and using the expertise of persons having
qualification in this area are helpful in this regard.
The members Executive Organ play a key role in ensuring
that the organizations they lead follow their mandates and
ensure there is accountability and transparency at operational
level of the organization. The election of such members and
their roles, responsibilities and powers need to be well
articulated in the constitution (memorandum of association) of
an organization they lead.140 The Chief Executive Officer
controls and influences daily activities of the organization and
the competence of a person to take the position matters. There
may be no formal qualification criteria for such a post, but
looking the person against some yardsticks may be useful.
The important skills to be seen in this regard are: an
understanding of and experience in legal and economic
affairs, interest in creative work and/or cultural industries,
good and useful political contacts and experience in lobbying
activities.141
3.2.4. Towards Establishing a New CMO
As the discussion above shows, the establishment of CMOs in
Ethiopia results from submission by right holders of an
application accompanied by necessary documents to EIPO
and approval of the same by the office. In such process, much
burden is on right holders which involves the initiation of the
idea, preparation of necessary documents in a way it will
obtain approval and address all possible issues, responding to
comments and making necessary corrections in case EIPO
returns the application to right holders by making comments
for correction. Undertaking these tasks is not such an easy as
one may think and it requires good understanding of the
concept of copyright, collective management and basics of its
operation, different types of licenses and the condition under
which each of them work, the legal environment in which the
intended organization works and forecasting possible
challenges to devise mechanisms of addressing them.
As such, though the law is framed in such a way that the idea
should come from right holders, it is not tenable to leave the
entire job for them if we have to see the concept work in
practice. Although CMOs are in general and overwhelmingly
established in the private sector and managed and owned by
rights holders, the state can play an important role in
supporting the CMO. Cooperation between the copyright
office and CMOs is a crucial point of departure in establishing
such organizations. The copyright office has a pivotal role in
facilitating collective management, in particular at its initial
140
. African Regional Intellectual Property Organization (ARIPO), Survey on
the status of Collective Management Organizations in ARIPO Member States:
Report by Keitseng Nkah Monyatsi, 27, (2014)
141
. (Lowe), supra note 5, at 33
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stages. „In many countries, it would be virtually impossible to
establish a properly functioning system of collective
management without the assistance of the copyright office.‟142
The role of a copyright office is multi-faceted. It includes
taking part in policy making, formulation and implementation
of appropriate legislation, enforcement and management of
rights and often education and awareness-raising activities.
For the concept to work in practice, it is important that all
stakeholders understand the basics of copyright protection and
the rationale behind collective management. Benefits of both
to rights holders, users, the legal system and the society at
large need to be clearly demonstrated for all.
To expand the understanding of the society and create a fertile
environment for the formation and operation of CMOs, the
government needs to be an active role player by organizing
education and awareness creation programs. The role of the
government is first and foremost to ensure solid protection in
legislation and secondly to support collective management of
rights by various means.143 It would be difficult to set up a
CMO in a developing country without the active support of
the government.‟144 A recent study on already established
African CMOs shows that insufficient or lack of awareness of
copyright laws stands among the major challenges faced by
these organizations.145 Lack of understanding on the concept
remains a challenge also in Ethiopia. The problem gets
intensified with the lack of study on economic relevance and
uses of copyright industry. The author found only one study of
such type that called itself the „pioneer‟ study of its kind146
and that mentioned the absence of similar study in Ethiopia as
a difficulty it faced to realize the fundamental role of
copyright in value creation. 147 This study recognized the
potential of the country to diversify its economy through the
use of its cultural heritage and pool of creative talent as a
feasible development tool and underscored the need to define
effective intervention strategies, which requires understanding
and responding to the factors shaping the development of the
creative industries to use creativity as a strategic asset for
economic development of the country.148
So long as collective management of copyright is concerned,
we need to give place to the fact we are not at development
stage where right holders can establish such organization and
142
. (Lowe), supra note 5, at 17
143
. Id, at 25
144
. Id, at 26
145
. (African Regional Intellectual Property Organization), supra note 140, at
5, 37: This source sums up issues that were raised as challenges faced by
CMOs in 13 member African countries and the major ones indicated include:
(i) Users‟ unwillingness to pay royalties; (ii) Lack of awareness of copyright
laws by users and general public; (iii) Piracy; (iv) Inadequate manpower; (v)
Inadequate resources; (vi) Problem of licensing educational institutions for
RROs (vii) Weak collaboration and partnership with other stakeholders
within and outside the country; (viii) Lack of collaboration with the copyright
office; (ix) Lack of increasing awareness of collective management among
and support by right holders; (x) Unavailability of technologies that can be
used by CMOs.
146
. (WIPO Study), supra note 75, at 13
147
. Id, at 14
148
. (WIPO Study), supra note 75, at 14
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exercise their rights only by themselves. The proper
functioning of the system requires an informed society in
which average person understands the concept of copyright
and illegal nature of violating copyright rights. The users of
the work need to understand copyright law and the implication
of their use on the right of copyright owners. Right holders
themselves need to understand the basic operation of
collective management of rights and preliminary
considerations to establish a functioning CMO, and for this
reason, it is important to direct early activities towards
educating rights holders about the benefits that flow from the
formation of a CMO and the importance of their active
involvement in its establishment. Creating such an informed
society and facilitating exercise of copyright rights and the
collective exercise of rights needs a concerted effort both by
the government and right holders. The initial establishment of
CMO needs government intervention which may take an
advisory role and/or financial aid as relevant. Copyright office
together with academic institutions can also support right
holders with qualified expertise in preparing initial documents
necessary for the establishment of the society.
In some countries, the government offers financial or non-
financial aid, such as rent-free or nominal-fee office premises.
The copyright office can consider whether technical assistance
from WIPO would be possible, for instance in the form of
standard software149 for documentation and distribution
purposes.150 The necessity of cooperation between EIPO and
rights holders in establishing CMO can be clearly understood
from the fact that, despite continuous effort on parts of both
right holders and EIPO, we have no established and
functioning CMO in Ethiopia.151 The fruitless effort to
establish CMO in Ethiopia started, on part of right holders,
even before the law was amended to give recognition to the
concept and an organization with the name Ethiopian
Copyright Collective Management Society exists. The
organization serves as an umbrella association for eleven
copyright sectoral associations, which have their own
representations within the society and had objectives of
administering the rights of its members, enhancing their
benefits, and promoting the works of its members inside and
outside Ethiopia.152 „However, the Society has not yet started
149
. WIPO has developed a multi-purpose, multi-user client-server
application, WIPOCOS, for collective CMOs. It requires a modern and
reliable computerized system that will enable them to perform, with full
accountability, the main operations involved in the collective management of
copyright and related rights. Explanation about the application in available in
pdf format at:
<http://www.wipo.int/edocs/pubdocs/en/copyright/957/wipo_pub_957.pdf>.
It is shown in this document that the application was installed in Ethiopia in
2010.
150
. (Lowe), supra note 5, at 39
151
. A telephone interview with Ethiopian Intellectual Property Office‘s
Copyright and Community Knowledge Protection Work process Head,
conducted on 04/Nov/2016, from 09:17 – 09:32am
152
. (WIPO Study), supra note 75, at 19
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actively discharging its duties to their fullest extent and no
royalties have been collected so far.‟153
Therefore, we need to step forward to the establishment and
functioning of CMOs. The preparation stage involves setting
up a forum for discussion and decision making and
establishment of a preparatory working body upon initiation
of interest to establish CMOs.154 Currently, there are about
twelve sectoral association of copyright protection in Ethiopia
and they started movement to establish CMO, upon call by
EIPO, right after amendment of the law and have formed a
Temporary Organizing Committee.155 This committee needs
to start with conducting a feasibility study to develop its
business plan which serves as a first market analysis. The two
markets: that of the rights holders and that of the users need to
be examined. Such study has relevance of helping right
holders to understand, in advance, preliminary idea about the
size of the operation of the intended organization, critical
factors of its success and potential risks that need to be
addressed. The cooperation between EIPO and right holders is
of great importance at this stage and right holders should be
supported. The role of government needs to go beyond
approving application for the establishment of CMOs and
involve supporting initiation studies and preparation of
necessary documents. The government has better contact than
right holders with WIPO and has a diplomatic relation with
other countries with good experience on collective
management of copyright, and hence, can facilitate support
from WIPO and can arrange one or two experience sharing
program for right holders who are leading the initiation for
establishment of CMO. Leaving the effort totally to right
holders has an effect of delaying the establishment for some
other years thereby making the law to continue with no
practical application as it existed for the last two years. In
short, rights holders need support to establish CMOs.
IV. SUMMARY AND CONCLUSIONS
Collective management system is recognized worldwide as
necessary for the efficient administration of copyrights and
neighboring rights. Its relevance has been underscored from
view point of its benefit to right holders, users and the society
at large. In cases where the individual management of
copyright is either impracticable or impossible, rights holders
have established CMOs to look after their rights. In relation to
users, a blanket license overcomes the complexity of
fragmented copyrights in securing authorization for access to
copyright protected works. CMOs are also a key pillar of the
legal system of copyright and protection of intellectual
property in general. Existence of such organizations is of
national importance in promoting creativity and helping
flourishment of national cultural identities in addition to the
role they play in lobbying for good legal environment and
153
. Id.
154
. (Lowe), supra note 5, at 37
155
. (Interview), supra note 151
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awareness creation on the concept of copyright protection and
benefits to national economy of copyright industries.
However, only those collective management organizations
will survive that are managed in a transparent way, that are
most successful in distributing the collected rights revenue
from the usage of rights to right-holders, and which
understand that they are there not for themselves but to serve
and protect the interests of all their members. To promote
such transparency and exercise control over CMOs activities
external and internal controls are in place. External control
represents control by copyright office or relevant body with
authority to exercise a supervising role on such organization
and mandatory legal rules. Internal control is in the hands of
right holders and is exercised through mechanisms fixed in
documents of the organization and control on decision making
by voting on general assemblies. At the outset, while
preparing the documents, memorandum of association,
internal rules and regulations or other relevant documents,
right holders, both in Ethiopia or elsewhere, need to
understand and exercise their controlling power by including
mechanisms of checking the power of the organization and by
subjecting its activities to highest standard of transparency
requirement.
The government needs to put in place an appropriate legal
framework for the collective management of rights that are
administered by CMOs on behalf of right holders by
providing for rules ensuring the better governance and greater
transparency of all CMOs. In Ethiopia, the law has included
legal requirements of controlling CMOs by subjecting their
activities to strict legal requirements like approval by EIPO or
establishment of mandatory legal rule to which they have to
adhere. But it is not in such a detailed manner and only a few
articles exist in the provisions of Copyright and Related
Rights Protection Proclamation as amended that deals with
issues of CMOs. We need for detailed regulation for operation
of CMOs and their dealings with both right holders and users.
The law needs to take in to account the right of users of
copyright protected works to take part in the process of fixing
royalty scheme so that they will be able to negotiate on terms
and the royalty scheme becomes the result of negotiation
between them and CMOs.
Other points in the proclamation also needs clarification;
which includes: whether Intellectual Property Tribunal has a
power to give order of cancellation of recognition given to
certain CMOs under Article 37(3) of the proclamation, the
ground upon which the said order can be given under this
article and whether CMO has jurisdiction to initiate legal
proceedings relating to violation of copyright on the behalf of
its members. The definition of works without master also
needs to be clarified by giving clue of the nature of such
works. The existing definition lacks clarity because it says a
work becomes work without master when it is declared by the
law to be so and this makes it challenging to understand these
works in the absence of court ruling. Further, on the grounds
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International Journal of Research and Scientific Innovation (IJRSI) | Volume III, Issue XII, December 2016 | ISSN 2321–2705

upon which and the type of works that the court can declare as Ethiopia, where the very concept of copyright itself has not
such type of work needs to be well articulated. been well understood by majority of the society, let alone the
concept of collective management. The government can
All these issues become relevant only when there is a working
facilitate the establishment of CMOs by supporting awareness
CMO in the country and we currently have no such
creation campaigns by right holders, giving aids that take
organization. The absence can be attributed to the difficulty
either financial or non-financial form, by making contact with
on part of right holders to make all necessary organizations
WIPO on any support at initial stage of establishing CMOs
that need extensive study of the market, preparation of
(especially on market study, relevance of the environment for
necessary document and framing a functioning licensing
collective management of copyright and supports in form of
system and royalty scheme. This needs a well-researched
standard software) and by arranging experience sharing
study that is capable of discovering existing opportunities,
opportunities for organizers of the idea of founding CMOs.
forecasting challenges and showing ways of addressing them.
The absence of such support, on part of government, and
The law is framed in a way that leaves initial stage of
understanding the role of EIPO as only to approving of
establishing CMOs to right holders only and has brought no
application for establishment of CMOs, will delay the
CMO in to existence since the inclusion of the concept in the
practicality of the concept of collective exercise of rights and
law of the country two years ago. This reminds us the
establishment and functioning of such organizations in the
relevance of government support and cooperation between
country. Therefore, now is a time to have right holders and the
right holders and EIPO in establishing CMOs.
office work together towards formation of CMOs.
It is very hard for right holders to accomplish the
establishment only by themselves, especially in countries like

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