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The relationship between collective management of copyright and competition law is based on a fragile balance. Can the irruption of the Internet call it into question?
Competition law avoids a head-on collision. Rather than analyzing the collective exercise of copyrights as the result or the means of an anti-competitive agreement between right holders, case law qualifies collecting societies as enterprises. It considers them as autonomous operators whose activity is crucial for the proper functioning of the copyright market. If the implementation of this applicability criterion neutralizes the specificities of collective management, it also consecrates its economic legitimacy. By putting the effectiveness of copyright to the test, the Internet seems to confirm the validity of this analysis.
Based on the centralization and concentration of means, collective management tends to bring together a maximum number of right holders in order to offer access to a complete repertoire of works. Such a gathering inevitably gives national societies a market power which in fact translates into a monopoly. Faced with this situation, Community competition policy is hesitant. For a long time, it was geared to supervising national monopolies, but it has changed radically with the development of the Internet and the needs it creates. It now pursues, in a random manner, the objective of creating competition on the collective management markets, threatening the effectiveness of the existing model.
