فصلنامه حقوق پزشکی
پیاپی 28 (بهار 1393)

Authors of literary and artistic works have different exclusive rights like reproduction right, broadcasting right and distribution right. Increasing growth of new communication technologies facilitate allowed and non-allowed uses of literary and artistic works and owners of works could not control uses of their works. In this condition, collective management system and collective management organization are best ways for protection of advantages of authors and beneficiaries. They act as a mediator between owners of works and users. Today three kinds of collective management organizations work in different countries. These organizations have different methods and mechanisms depend on the scope of their activity and the rights covered by them. Customary kind of these organizations are traditional collective management organizations. These organizations usually negotiate with their members about tariffs and conditions of using works by users, issuing license and collecting royalties. Two other kinds of these organizations are right clearance center and one stop shop. In these models, organization usually works as a mediator and owners of works set tariffs and conditions.

Collective management organization is a consistent and collective kind of management of literary and artistic property rights that benefits authors and artists in situations of complexity and extent of access to the works. These organizations are facing with the diversity in different countries with regard to the political, social and cultural national. Recent paper attempts to study descriptive -analytical the organizations in different countries, differences and similarities of civil law and common Law systems and the establishment of the organization, the role of government in the organization, relationships with the organizationchr('39')s members and users, and finally to express their appropriate suggestions. Nevertheless, it is plausible that the traditional boundaries of civil law and common Law system metamorphosed and from each other, have been affected. Therefore, contemporary organizations will be a combination of both systems.

Collective management in the field of copyright and related rights which bridge the gap between the rights and interests of the right holders and users, plays an important role in the promotion of intellectual property rights and its economic implications in the society, in particular on digital age. World Intellectual Property Organization (WIPO) which follows the goal of protection of IP rights to serve the economic development of the member states by noting the importance of role played by collective management organizations in copyright and related rights, has helped enhancement of collective management organizations in member states, especially in developing world, through establishment of an office named Copyright Collective Management Division (CCMD). This functions under the auspice of Development Cooperation Program from two decades ago. WIPO implements this mission by encouragement of establishing such organization, making necessary arrangement among them, providing legal advices, capacity building, institution building and training human recourses as well as offering technical and administrative assistance.  This article tries to examine the collective management of copyright and related rights particularly in new digital era, and further review the background and reasons of the WIPO’s attention to this subject. The article also studies the measures taken by WIPO which are aimed at the promotion of the status of this Organization.

Regardless of the nature of collective management organizations whether governmental or non-governmental, national or international, independent or dependent on the state’s institutions, or their inclusion in the form of one of the companies mentioned in Trade Act, due to the particular characteristics of such organizations such as field of activities, varieties of works and rights protected under  intellectual property regime, some conditions and characters need to be specified in such organization’s Charters. Among these conditions are the rights, subject of activities, scope of which persons can become a member, procedures of membership, verification or its cancellation, confidentiality conditions and administration of these originations. Therefore, since no sample charter for establishment of such organizations has been suggested, and due to the need of existence of a sample or model in the Iranian legal system, this article tries to identify conditions essential to the establishment of collective management organizations and make them distinct from legal persons.

The establishment of collective management organizations (CMO) has been envisaged in draft of comprehensive act for protection of literary and artistic ownership and related rights by the Ministry of Culture and Islamic Guidance of Iran. At the moment, no such organizations or similar institutions exist in Iran. Due to the lack of legislative background as well as lack of practice of such organizations, and particularly due to the importance of CMOs in commercialization of the works that are subject to copyright and related rights, it is necessary that their structures and functions are determined by law. Since CMOs manage the rights of the creators and the Ministry is the authority to provide the protection for the right holders, it is essential that the role of the Ministry of culture and Islamic guidance is clarified in connection with the establishment, structures and functions of CMOs. In this context, the experience of the states such as France because of their similarities with the Iranian legal system is of particular importance. This article tries to examine the establishment process, structures and functions of CMOs in France and analyze their implications to ministry of Culture and Islamic Guidance of Iran.

Sometimes, commercialization firms (such as publicators) do not respect the equitable share of the creators of literary and artistic works in commercialization contracts. Since the creators are considered as the weaker party of contract, adopt unfair share and do not protest unfair clause of contract regulated by another party. The national laws and regulations of several countries have emphasized on the equitable share of the owner of literary and artistic works. For implementation of the mentioned right, we need collective management organizations (CMOs) in addition to laws and regulations. Whereas Iranian legal literature has not paid attention to this important and practical issue, this article tries to fulfill the current lack of research approximately. This survey constitutes two parts. The first part allocates to the concept and criteria of equitable share and the role of CMOs with comparative approach. The second part considers the exsiting reulations and bill of intellectual property protection of Iran. Finally, it suggests clear and practical solutions to the beneficiary groups.

Law is a set of rules and regulations governing the human social relations that its main task is establishing order and justice in these relations.

Obviously, in this regard, the mere existence of rules without creating a dynamic and purposeful structure that provides the possibility of implementing rules will not be enough. So resourceful legislators always try to predict appropriate and effective sanctions to prevent infringement of laws or to punish violators. These sanctions are imposed by the public authority.

On the other hand the public order and public interest as the most fundamental concepts of public law affect protecting the right of citizens. Also literary and artistic property laws is inspired by constitution; that is the main subject of public law.
In this paper the links between literary and artistic property law and public law in the context of the above are explained.

Having considered the debate on intellectual property law from Iranian and sharia laws, we can see that the discussion about intellectual property has begun from the rights arising from written materials including books. However, the transfer of such rights has been challenged. On this basis, this article tries to examine and analyze the transfer of intellectual property rights in copyrights context from Iranian and shariachr('39')s point of view.

Ownership of economic and moral rights of work to creator is the first assumption of any intellectual work. However, this assumption does not have any fix station about works created in employment agreements, and also academic works. In some legal systems (especially in common law countries such as United States of America) first principle is the allocation of rights to the employer/university, whereas in some other (Roman law systems), this assumption vice versa is true. Many employers in United States of America defined three models including work made for hire, substantial use of employer resources and contract to allocate rights to employer. Other method that is not so famous is joint ownership. It means division of rights between creator and employer/university.