The Collective Management of Copyright (EU Directive) Regulations 2016

General assembly of members of collective management organisations

7.—(1) A collective management organisation must ensure that—

(a)the general assembly of members is convened at least once a year;

(b)the general assembly of members decides on amendments to the statute and the membership terms of the collective management organisation, where those terms are not regulated by the statute;

(c)the general assembly of members decides on the appointment and dismissal of the directors, reviews their general performance and approves their remuneration and other benefits such as—

(i)monetary and non-monetary benefits;

(ii)pension awards and entitlements;

(iii)rights to other awards; and

(iv)rights to severance pay;

(but see paragraph (12));

(d)in accordance with regulations 10 (rights revenue), 11 (deductions) and 12 (distribution) and subject to paragraph (2) the general assembly of members decides on at least—

(i)the general policy on the distribution of amounts due to right holders;

(ii)the general policy on the use of non-distributable amounts;

(iii)the general investment policy with regards to rights revenue and to any income arising from the investment of rights revenue;

(iv)the general policy on deductions from rights revenue and from any income arising from the investment of rights revenue;

(v)the use of non-distributable amounts;

(vi)the risk management policy;

(vii)the approval of any acquisition, sale or hypothecation of immovable property;

(viii)the approval of—

(aa)mergers and alliances;

(bb)the setting-up of subsidiaries;

(cc)the acquisition of other entities or shares or rights in other entities;

and

(ix)the approval of taking out loans, granting loans or providing security for loans;

(e)the general assembly of members controls the activities of the collective management organisation by at least—

(i)deciding on the appointment and removal of the auditor (but see paragraph (3)); and

(ii)approving the annual transparency report referred to in regulation 21 (annual transparency report);

(f)all members of the collective management organisation have the right to participate in, and the right to vote at, the general assembly of members (but see paragraph (4));

(g)every member of a collective management organisation has a right to appoint another person as a proxy to participate in, and vote at, the general assembly of members on the member’s behalf provided that the appointment does not result in a conflict of interest; and

(h)in relation to the right in sub-paragraph (g)—

(i)each proxy is valid for a single general assembly of members;

(ii)the proxy holder enjoys the same rights in the general assembly of members as those to which the appointing member would be entitled;

(iii)the proxy holder casts votes in accordance with the instructions issued by the appointing member.

(2) The requirement in paragraph (1)(d)(vi) to (ix) may be satisfied where the general assembly of members delegates to the body exercising the supervisory function referred in regulation 8 (supervisory function) the functions referred to in those sub-paragraphs by a resolution or by a provision in the statute.

(3) The requirement in paragraph (1)(e)(i) may be satisfied where an auditor is appointed under Chapter 2 of Part 16 of the Companies Act 2006(1).

(4) The requirement in paragraph (1)(f) may be satisfied—

(a)where a collective management organisation restricts the rights of members referred to in that sub-paragraph on the basis or either or both the following criteria—

(i)duration of membership, or

(ii)amounts received or due to a member;

and

(b)where these criteria—

(i)are determined and applied in a manner which is fair and proportionate; and

(ii)are included in the statute or the membership terms of the collective management organisation and are made publicly available in accordance with regulation 20 (disclosure of information to the public).

(5) This paragraph applies where a collective management organisation by reason of its legal form does not have a general assembly of members.

(6) Where paragraph (5) applies—

(a)the collective management organisation must ensure that the functions of the general assembly of members referred to in paragraph (1)(b) to (e) are exercised by the body exercising the supervisory function referred to in regulation 8 (collective management organisation: supervisory function); and

(b)this regulation applies with the following modifications—

(i)in paragraph (1), sub-paragraphs (a), (b), (c), (d) and (e) apply as if the references to “general assembly of members” were references to “body exercising the supervisory function referred to in regulation 8”;

(ii)in paragraph (1), sub-paragraphs (f), (g) and (h) do not apply; and

(iii)paragraphs (2) and (4) do not apply.

(7) This paragraph applies where—

(a)a collective management organisation decides that the functions of the general assembly of members referred to in paragraph (1)(b) to (e) are to be exercised by an assembly of delegates elected at least every four years by the members of the collective management organisation;

(b)appropriate and effective participation of members in the collective management organisation’s decision-making process is ensured; and

(c)the representation of the different categories of members in the assembly of delegates is fair and balanced.

(8) Where paragraph (7) applies this regulation applies with the following modifications—

(a)in paragraph (1), sub-paragraphs (a), (b), (c), (d) and (e) apply as if the references to “general assembly of members” were references to “ assembly of delegates”;

(b)in paragraph (1), sub-paragraph (f) applies as if it read “all delegates elected to the assembly of delegates have the right to participate in, and vote at, the assembly of delegates;”;

(c)in paragraph (1), sub-paragraph (g) applies as if the reference to—

(i)“member of a collective management organisation” read “delegate elected to the assembly of delegates”;

(ii)“general assembly of members” read “assembly of delegates”; and

(iii)“member’s behalf” read “delegate’s behalf”;

(d)in paragraph (1), sub-paragraph (h) applies as if—

(aa)both references to “general assembly of members” were references to “assembly of delegates”; and

(bb)both references to “appointing member” were to “appointing delegate”;

(e)paragraph (2) applies as if the reference to “general assembly of members” were a reference to “assembly of delegates”; and

(f)paragraph (4) does not apply.

(9) This paragraph applies where—

(a)a collective management organisation only has members who represent right holders; and

(b)the collective management organisation decides that one or more of the functions of the general assembly of members referred to in paragraph (1)(b) to (e) are to be exercised by an assembly of those right holders.

(10) Where paragraph (9) applies and the collective management organisation has decided that all the functions of the general assembly of members are to be exercised by an assembly of right holders then this regulation applies with the following modifications—

(a)in paragraph (1), sub-paragraphs (a), (b), (c), (d) and (e) apply as if references to “general assembly of members” were references to “assembly of right holders”;

(b)in paragraph (1), sub-paragraph (f) applies as if it read “all right holders who are represented by members have the right to participate in, and the right to vote at, the assembly of right holders;”;

(c)in paragraph (1), sub-paragraph (g) applies as if the reference to—

(i)“member of a collective management organisation” read “right holder who is represented by a member”; and

(ii)“general assembly of members on the member’s behalf” read “assembly of right holders on the right holder’s behalf”;

(d)in paragraph (1), sub-paragraph (h) applies as if—

(i)both references to “general assembly of members” were references to “assembly of right holders”; and

(ii)both references to “appointing member” were to “appointing right holder”;

(e)paragraph (2) applies as if the reference to “general assembly of members” were a reference to “assembly of right holders”; and

(f)paragraph (4) does not apply.

(11) Where paragraph (9) applies and the collective management organisation has decided that some of the functions of the general assembly of members are to be exercised by an assembly of right holders then this regulation applies with the following modifications—

(a)in paragraph (1), sub-paragraph (a) applies as if after the words “general assembly of members” there were added “and the assembly of right holders”;

(b)a reference in paragraph (1) (b), (c), (d) and (e) to the general assembly of members is to be read as a reference to an assembly of right holders so far as that reference relates to a function that the collective management organisation has decided is to be exercised by an assembly of right holders;

(c)in paragraph (1), sub-paragraph (f) applies as if after “(but see paragraph (4))” there were added “and all right holders who are represented by members have the right to participate in, and vote at, the assembly of right holders”;

(d)in paragraph (1), sub-paragraph (g) applies as if after “general assembly of members on the member’s behalf” there were added “ and every right holder who is represented by a member has a right to appoint another person as a proxy to participate in, and vote at, the assembly of right holders on the right holder’s behalf”;

(e)in paragraph (1), sub-paragraph (h) applies as if—

(i)at the end of sub-paragraph (i) there were added “or for a single assembly of right holders”;

(ii)in sub-paragraph (ii)—

(aa)after the reference to “the general assembly of members” there were added “or the assembly of right holders”; and

(bb)after the reference to “appointing member” there were added “or appointing right holder”;

and

(iii)in sub-paragraph (iii) after the reference to “appointing member” there were added “or the appointing right holder”;

(f)paragraph (2) applies as if after the reference to the “general assembly of members” there were added “or the assembly of right holders”; and

(g)paragraph (4) applies only in relation to the requirement in paragraph (1)(f) concerning the rights of members in relation to the general assembly of members.

(12) Where the statute of a collective management organisation provides for a dual board the collective management organisation must ensure that the general assembly of members does not—

(a)decide on the appointment and dismissal of members of the management board, or

(b)approve their remuneration and other benefits,

to the extent those powers are delegated to the supervisory board.

(13) In paragraph (1)(c) “director” means—

(a)any member of the administrative board of the collective management organisation; or

(b)where the statute of the collective management organisation provides for a dual board, any member of the management board or supervisory board.