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CHAPTER IV RIGHTS AND OBLIGATIONS OF A CMO
Article 23
A CMO shall provide collective management services for members in accordance with laws, regulations, its articles of organization, and resolutions of the general meeting of its members.
A CMO, when providing collective management services under the preceding paragraph, shall collect management fees at the stipulated rate or in the stipulated amount.
The rate or amount of management fees in the preceding paragraph shall be stipulated based on the funding required to maintain normal operation of the CMO.
Article 24
A CMO shall adopt royalty rates and dates for implementation of the rates for each type of exploitation of the economic rights under its management. A CMO shall take the following factors into account when setting royalty rates:
1.The result of consultations with the users, and the users' suggestions.
2.The economic benefit to be obtained by users through exploitation of the works.
3.The numbers of economic rights under its management.
4.The type and quantity of the exploitation.
5.Other factors that the specialized agency in charge of copyright matters designates for consideration.
In adopting the royalty rates of the preceding paragraph, when a blanket license agreement is employed, users shall be provided with a choice of the following fee calculation models:
1.A specific monetary amount or ratio.
2.Another fee calculation model negotiated and agreed upon between the user and the CMO.
A CMO shall lower at its discretion the royalty rates of paragraph 1 when the user exploits a work for cultural, educational, or other purposes in the public interest; when the exploitation is non-profit in nature, the CMO shall further lower at its discretion the royalty rates.
The specialized agency in charge of copyright matters may conduct investigations into the actual circumstances of use of the works under the management of any CMO.
The specialized agency in charge of copyright matters shall guide the CMO to use innovative technology methods to improve its management efficiency and reduce the cost of exploitation, and to refine the fee calculation model, so as to enhance the rights and interests of copyright owners and the convenience of users.
The royalty rates of paragraph 1 shall be publicly announced for the purpose of review by the general public, and shall be reported to the specialized agency in charge of copyright matters for recordation. The royalty rates may not be implemented at any time prior to 30 full days after the date of announcement. The same provisions shall apply in the case of any change to the royalty rates.
A CMO shall state the reasons for adoption of the royalty rates at the time of their public announcement pursuant to the preceding paragraph.
When a CMO has not adopted a royalty rate for a specific type of exploitation in accordance with the provisions of paragraph 1, a user may request the CMO in writing or in an electronic format file to adopt a royalty rate; prior to the adoption of such a royalty rate, the provisions of Chapter 7 of the Copyright Act shall not apply to any instance of exploitation for which adoption of a royalty rate has been requested.
Article 25
A copyright user who objects to a royalty rate set by a CMO may apply to the specialized agency in charge of copyright matters for a review; at the time of application it shall also submit written reasons and other related materials.
When the specialized agency in charge of copyright matters receives an application pursuant to the preceding paragraph, it shall publish the application on its website. Other users with the same circumstances of exploitation may also submit written reasons and related materials and make a request of the specialized agency in charge of copyright matters for participation in the application for review.
After receiving an application for review pursuant to paragraph 1, the specialized agency in charge of copyright matters may order the CMO to provide the factors under each subparagraph of the preceding article that it used in consideration of the royalty rates, its conditions for licensing, and other relevant documents. The CMO may not refuse such an order.
When the specialized agency in charge of copyright matters performs its review, it may change the criteria, ratios, or amounts for calculation of royalties originally adopted by the CMO, and shall seek the opinion of the Copyright Review and Mediation Committee.
When there are matters requiring supplementation or correction with respect to an application under paragraph 1 that are not performed within the period designated by the specialized agency in charge of copyright matters, or in the absence of reasons for application, the specialized agency in charge of copyright matters may reject the application.
When there is sufficient reason for an application for review under paragraph 1, the specialized agency in charge of copyright matters shall make a determination of the given royalty rate, which shall be effective from the date of application for review, provided that in the case of applications made prior to the date of implementation of a given royalty rate, the newly determined rate shall take effect from the date of implementation.
A royalty rate that has been determined pursuant to the preceding paragraph may not be changed by the CMO within three years from its date of implementation, and during the same period, users also may not make any further application for review of matters on which such a determination has been made, provided that these provisions will not apply in the case of a material change in circumstances.
The specialized agency in charge of copyright matters may prohibit the implementation of a royalty rate which is under application for review pursuant to paragraph 1 when the rate is in violation of the law, or when there is no legal basis for collection of that royalty rate.
The review determinations under paragraph 6 and the preceding paragraph shall be published on the website of the specialized agency in charge of copyright matters.
If a royalty rate is determined through a review by the specialized agency in charge of copyright matters, then for any license agreement that was signed between a user and a CMO prior to the determination, the user may, during the effective term of the agreement, request a change by the CMO in the amount of the royalty.
When implementation of a CMO's royalty rate has been prohibited by the specialized agency in charge of copyright matters, the CMO shall return the royalties already collected.
The review decision of an application under paragraph 1 shall be made by the specialized agency in charge of copyright matters within four months from the date the documents are fully submitted.
The members of the Copyright Review and Mediation Committee under paragraph 4 shall include government authorities, scholars, experts, rights holders and users.
Article 26
For royalty rates between the time of application for review and the review determination, the user may make a provisional payment, based on the type of exploitation, at the royalty rate originally set prior to the change in rate or at the originally stipulated royalty amount; if there is no originally set royalty rate or originally stipulated royalty amount, the user may apply to the specialized agency in charge of copyright matters to approve an amount for provisional payment.
Prior to its approval of the provisional payment of the preceding paragraph, the specialized agency in charge of copyright matters may seek the opinion of the Copyright Review and Mediation Committee.
The amount of provisional payment approved pursuant to paragraph 1 shall be published on the website of the specialized agency in charge of copyright matters, and during the period of review of the royalty rate, the provisional payment shall apply to all users engaging in exploitation under the same circumstances.
When a user makes a provisional payment to a CMO pursuant to paragraph 1, and where the payment is clearly indicated as a provisional payment, the user's exploitation will not be subject to the provisions of Chapter 6 and Chapter 7 of the Copyright Act.
When a user has made provisional payments pursuant to paragraph 1, then except where otherwise stipulated between the two parties, the payments shall be adjusted based on the royalty rate determined through the review process; when an application for royalty rate review is rejected, the payments shall be adjusted based on the CMO's publicly announced royalty rate.
When the implementation of a royalty rate for which a review application has been made by a user is prohibited pursuant to paragraph 8 of the preceding article, the CMO shall return the provisional payments already collected.
Article 27
A CMO shall publish information related to the works under its scope of management on the Internet for public access, including a list of the economic rights holders under its management, and the names of the works managed, the authors, the percentages of the economic rights held, the numbers of works, or other information sufficient to allow the works under its management to be identified, and shall also provide information within a reasonable scope in response to applications by members of the public.
When a CMO negotiates a blanket license agreement with a user, it shall inform the user of the information under the preceding paragraph.
Article 28
The following items shall be expressly set out in a individual license agreement:
1.The name of the economic rights holder, and title of the work.
2.The economic rights to be licensed for exploitation.
3.The territory, term, and method of licensed exploitation.
4.The method of calculation and the amount of royalties.
5.Method of royalty payment.
6.Liability for breach.
7.The date of agreement.
Article 29
In addition to setting out the matters required in subparagraphs 2 through 7 of the preceding article, a blanket license agreement shall also state that the licensee is licensed, within a specified period, to use all the economic rights managed by the CMO an unlimited number of times..
Article 30
The specialized agency in charge of copyright matters may designate relevant CMOs to adopt a joint royalty rate with respect to a specified type of exploitation.
The designated CMOs under the preceding paragraph shall engage in consultation in order to adopt the joint royalty rate and methods of distribution of royalties, to be collected from users by one of the CMOs.
If agreement cannot be reached by consultation pursuant to the preceding paragraph, any of the CMOs may apply to the specialized agency in charge of copyright matters for a determination.
The provisions of Article 24 through Article 26 shall apply to the joint royalty rate of paragraph 2.
In determining the joint royalty rate under paragraph 3, the opinions of users and of the Copyright Review and Mediation Committee shall be sought, and the disposition containing the determination shall be published on the website of the specialized agency in charge of copyright matters.
A joint royalty rate that has been determined pursuant to the preceding paragraph may not be changed by the CMOs within three years from its date of implementation, and during the same period, users also may not make any application for review of the rate, provided that these provisions will not apply in the case of a material change in circumstances.
The provisions of paragraph 2 through the preceding paragraph shall be implemented two years after promulgation of the 12 January 2010 amendments to this Act.
When, prior to the date of implementation under the preceding paragraph, CMOs that have been designated pursuant to paragraph 1 have already undertaken consultation and adopted a joint royalty rate with respect to a specific type of exploitation, they may apply the provisions of Article 24 through Article 26.
Article 31
When a member withdraws from a CMO, the CMO shall terminate the management agreement and cease to manage that member's economic rights.
A copyright user who has already entered into a license agreement with the CMO prior to a member's withdrawal may continue to exploit the works of the member who has withdrawn until the agreement expires and need not pay further royalties to that member, provided that where the license agreement contains stipulations prohibiting continued exploitation, those stipulations shall apply.
In the absence of the circumstances under the proviso of the preceding paragraph, the member who has withdrawn may apply to the CMO to request distribution of royalties, provided that the member who has withdrawn may not so request distribution of royalties when it has joined another CMO and may receive distribution of royalties in the new CMO for the exploitation by users set out in the preceding paragraph.
When stipulations exist between the CMO and the user as in the proviso of paragraph 2, the CMO shall immediately notify the user when the member withdraws from the CMO.
Article 32
A CMO shall not refuse a request from a non-member economic rights holder for management of the rights holder's economic rights that falls within the scope of categories of works and rights managed by the CMO.
Article 33
The provisions of Article 11, Article 14, Article 20, paragraphs 1, 2, and 5, Article 23, paragraphs 1 and 2, and Article 31 shall apply mutatis mutandis to matters between non-member economic rights holders and a CMO.
Article 34
Within the scope of rights managed by it, a CMO shall provide licenses with the same terms and conditions to users engaging in exploitation under the same circumstances.
If a user is refused a license by the CMO, or no licensing agreement can be reached, the user shall be deemed to have obtained a license if, prior to exploitation, the user has made payment of or lodged with a court the royalty rate or the amount demanded by the CMO.
When a user has made payment to the CMO or lodged payment with a court pursuant to the preceding paragraph, it may at the same time lodge a declaration with the CMO, reserving the right of later opposition.
Article 35
A CMO shall warrant its authorization to manage the rights whose exploitation it is licensing under its individual license agreements or blanket license agreements. When a user is clearly aware at the time of execution of an agreement that the CMO has no such authorization to perform management, the CMO is not liable to make such a warranty unless otherwise stipulated in the agreement.
Article 36
A CMO shall exercise the due care of a good administrator when providing collective management services.
Article 37
A copyright user shall periodically provide the CMO concerned with a record of use as the basis for calculating royalties to be distributed. When the license agreement stipulates otherwise, however, its provisions shall govern.
A CMO may, at its own cost, request a user at any time to provide a record of use.
If a user fails to provide a record of use or provides one that is materially incorrect or untrue, the CMO may terminate the license agreements executed with the user.
Article 38
The CMO shall maintain a segregated account with a financial institution for deposit of the royalties it collects. Except for the deduction of management fees under paragraph 2 or as otherwise provided by other laws, royalties may not be used in any way other than distributing them.
Based on its royalty collection and distribution rules, a CMO shall make periodic distribution of the balance of the royalties collected, after the deduction of management fees, to economic rights holders.
The "periodic distribution" referred to in the preceding paragraph shall take place at least once each year.
When a CMO distributes royalties, its board of directors shall, in accordance with its royalty collection and distribution rules, compile a table of royalty distributions that contains the following information, and submit it to the supervisors for auditing and confirmation after auditing and attestation by a certified public accountant:
1.The names of the economic rights holders and the economic rights held thereby.
2.The amount of each royalty payment and the total amount of royalties received.
3.The amount of management fees deductible from each royalty or the total amount thereof.
4.The distributable balance after deduction of the total management fees under subparagraph 2 above from the total amount of royalty received under subparagraph 2.
5.The method of calculating the amount to be distributed to each individual.
6.The amount to be distributed to each individual.
A CMO shall distribute royalties in accordance with the table of royalty distributions audited and confirmed by its supervisors, and keep said table of royalty distributions at its principal office. It also shall provide the economic rights holders with the table of royalty distributions for their works or make it available for them to review.
The competent authority will adopt regulations governing certified public accountant auditing and attestation procedures, working papers, reports, and other compliance matters under paragraph 4 and Article 21, paragraph 2.
Article 39
When providing collective management services, a CMO may initiate litigious or non-litigious actions in its own name on behalf of economic rights holders. The CMO, however, may initiate criminal proceedings only when it has an exclusive license or has received [the economic rights] by way of trust transfer.
The "litigious actions" mentioned in the preceding paragraph shall mean the institution of civil and administrative suits and complaints or private prosecutions in criminal cases. "Non-litigious actions" shall mean administrative appeal and other actions.