Legal relationship between collective management societies and their members :

Collective management societies of performers are generally non profit organisations (civil societies, co-operatives, even professional unions based on collective agreements in certain cases).

Performers who join a collective management society can grant it an exclusive mandate to manage their exclusive rights or to collect their rights to remuneration on their behalf.

Concerning these remuneration rights, it has to be noted that generally the law itself establishes their collective management (the collective management society collects then for all rightholders, members or not members).

In the same way, if a mechanism of compulsory collective management has been put in place, the performers, members or non-members, are validly represented by the collective management society.

In both cases the collective management society will have to distribute to members and non-members alike.

Performers can also transfer their rights to the collective management society. This transfer of property of a particular type (fiduciary type) strengthens the relationship between the performer and the organisation:

• the “transferred” right can only be exercised by this organisation, protecting the performer against external pressure for the transfer of his right under unfavourable conditions;
• the organisation administers it in the performer's interest, and the performer gets a remuneration corresponding to the exercise of this right.

In compensation for the mandate given by the performers to the collective management society or for the transfer of their rights, it is essential that the society ensures that right holders are sufficiently informed, that they are correctly represented and that they can participate in the most important management decisions.

In most cases, a General Assembly enables all members to express themselves on essential features of management:

• approval of accounts
• decision on deduction rates for management expenses
• special possible allocation of sums collected
• nomination of rightholders to the organisation's executive bodies.

Licensing of rights and royalty distribution are the main functions of collecting societies. In these fields, the realities of performers' rights management are also similar to those of collective management societies of authors' rights.

For the distribution of rights, it is very important that users inform about the uses made and of the identity of participating performers.

Therefore, one of the main obligations of users in particular or general licensing contracts, is the communication of information on the identity of the recordings or performances used.

An audiovisual producer using one or many commercial phonograms must, within the context of the contract authorizing him to realize this secondary use, indicate very clearly the identity of these recordings.

As regards the right to equitable remuneration for broadcasting and communication to the public of commercial phonograms, contracts must include the obligation for radio or television to communicate the broadcasting "play lists".

The communication of "play lists" does not resolve all problems, though. When "play lists" exist and are communicated by radios and televisions, they generally comprise the title of the recording, the name of the main performer, the name of the author, sometimes the name of the producer, but never the name of the other performers (musicians, choir members...).

The situation is simpler when it is a matter of distributing rights to actors whose performances have been broadcast on television: the credits include an exhaustive list of all performers participating in the production in question.

Therefore, the setting up  by performers' organisations of databases relating to the identity of all participating performers for a recorded title is crucial and constitutes a priority task for collective management societies.

Where playing lists are not available (public places and discotheques), polls are carried out. It may be possible to compare different sectors, or to do a mix of different systems. Managing choices are then decisive.

The same problem occurs for remuneration of private copying. Information concerning the nature of sound or audiovisual copies produced for private purposes can only be obtained by polls, the results of which must be managed by collective management organisms. Here again, choices have to be made in order to reach the most equitable result for rightholders.