Intellectual Property and Private Ordering

This chapter considers the law’s response to the challenge posed by the use of contract and technological protection measures (TPMs) as private ordering mechanisms in intellectual property. It considers the three (factual, legal, and contractual) levels of exclusivity on which private ordering may apply, and the different tools for intervening in private ordering that currently exist. It also highlights the inability of these tools to impose effective limits on private ordering by use of TPMs particularly, and considers the desirability and feasibility of new regulatory approaches based on the laws of consumer protection, IP, and unfair competition. The inflexibility and other shortcomings of such traditional regulatory mechanisms leads to a discussion of the possibility of alternative, self-regulatory mechanisms emerging, including the conditions required to that end, drawing on the experience of standard essential patents and collective rights management in copyright.

The state of China’s collective rights management in the context of the United States and Japan

With the rapid expansion of China’s economy, China’s music industries have shown rapid growth, and new companies have entered the marketplace. As these companies have had little pre-existing experience with the music industry—not to mention that music industry is a relatively new concept in China—the expansion has been not only rapid but also disordered and chaotic. One component of a mature music industry are collective rights management or performing rights organizations, which are independent non-profit social organizations that collect license fees on behalf of copyright holders (songwriters, composers, music publishers) and distribute these fees as royalties to members whose works have been performed. In this “In Focus” report, we compare and contrast the state of collective rights management in China, the United States, and Japan. Recognizing that China’s representative, the Music Copyright Society of China, is new to the scene, we should not be terribly surprised that it is lagging behind the other countries. Herein, we cite various areas where improvement is necessary so that China’s collective rights management can be in part with its international peers.