Kollektiv förvaltning av musikaliska verk i Sverige- i ett konkurrensrättsligt perspektiv

Sammanfattning: In Sweden, the exclusive rights to musical works such as presented in § 2 Act (1960:729) on Copyright in Literary and Artistic Works (URL) are managed by the collecting society Sveriges Tonsättares Internationella Musikbyrå (STIM). STIM monitor the right holder’s works and licenses them to users in return for economic compensation. Collecting societies such as STIM have long been considered to constitute de facto monopolies in relation to both right holders and users. This has meant that the competition law has exercised control over the collecting societies. The prohibition against abuse of a dominant position has set boundaries for the collecting societies’ behavior against right holders and users. The purpose of this paper is to analyze STIM’s relationship to the prohibition of abuse of a dominant position. To fulfill the purpose two questions have been asked. The first question is whether STIM has a dominant position in relation to right holders and users. The second question is which conduct can be considered as an abuse of such a position. This paper consists of two parts: one descriptive part and one part where an effort is made to answer the questions at issue. The descriptive part of the paper provides a basic background to STIM’s relationship with right holders and users. Afterward, the control exerted on the collecting societies is explained. In the part where I try to answer the questions at issue, STIM’s market shares in the relevant market are analyzed. Furthermore, relevant case law is analyzed in an attempt to crystallize conduct that may constitute an abuse of a dominant position. The conclusions of this work are the following. In relation to right holders STIM probably constitutes a de facto monopoly at the moment. However, there are no obstacles for right holders to choose whichever collecting society within the European Union for the management of their rights. It is therefore possible that STIM will no longer hold a dominant position in the future. In competition with the big collecting societies in Europe it will be hard for STIM to win in this regard. Cultural and linguistic reasons might however lead to a withholding of the dominant position. In relation to users, two separate developments are seen. When licensing in a physical environment STIM should constitute a de facto monopoly even in the future. Case law from the Court of Justice of the European Union allows collecting societies in Europe to refuse to license outside their territory. By contrast a decision from the European Commission has forced competition between European collecting societies in a digital environment. STIM’s position in the relevant market therefore depends on how well they fare in this competition. In such competition it is likely that STIM no longer will constitute a de facto monopoly. For the case in which conduct may constitute an abuse of a dominant position, it has been found that it is difficult to know in advance what conditions may constitute an abuse in the absence of guiding case law. However, it matters whether collecting societies constitute a de facto monopoly or not. As a de facto monopoly, STIM are obliged to contract and have a duty to design its terms on a basis that is objective and neutral. The collecting society’s copyright features have also been of importance. Their function is to ensure that right holders receive fair compensation for the exploitation of their works. To fulfill this function they have been allowed to have conditions that would otherwise contradict competition law. Also, the nature of copyrights as creations of author's imagination has been significant. This nature has led to difficulties when determining the economic value of a copyright, which means that it has proven difficult to determine when a license fee is too high.