Sample Bilateral Agreement - Type B

RECITALS

1. Society A and Society B are Reproduction Rights Organisations (RROs) as defined in Article 3 of the Statutes of the International Federation of Reproduction Rights Organisations (IFRRO) and are RRO members of that organisation.

2. Society A through its principals/member organisations represents the reprographic reproduction rights of individual rightsholders resident in or citizens of or incorporated in Territory A and collects fees, negotiates licensing terms and/or grants licences for the reprographic reproduction of rights, works and publications in that territory.

3. Society B through its principals/member organisations represents the reprographic reproduction rights of rightsholders resident in or citizens of or incorporated in Territory B and collects fees, negotiates licensing terms and/or grants licences for the reprographic reproduction of rights, works and publications in that territory.

4. In the context of this agreement, National Treatment means that the rightsholders of Society A are treated by Society B in the country of Society B as the rightsholders in that country are treated by Society B

5. In the context of this agreement, National Treatment means that the rightsholders of Society B are treated by Society A in the country of Society A as the rightsholders in that country are treated by Society A.

6. Society A and Society B support the principle of National Treatment and consider the collective administration of reprographic reproduction to be the only workable clearance and licensing procedure for users in their respective territories of operation.

7. Society A and Society B are striving to establish procedures for the licensing of reprographic reproduction and for distributing to rightsholders the fees collected from the licensing of reprographic reproduction and in their respective territories of operation.

8. The systems and legal structures employed by Society A and Society B in the collective administration of reprographic reproduction vary and these variations present practical difficulties.

9. Society A and Society B have entered this Agreement in spirit of co-operation and goodwill and in the interests of securing and maintaining strong and effective copyright laws of benefit to all rightsholders.

AGREEMENT

1. LICENCE/AUTHORITY TO COLLECT

On behalf of the rightsholders it represent, Society A hereby grants to Society B the non-exclusive right to enter into licensing agreements with users and to collect fees for the reprographic reproduction in Territory B of the rights, works and publications as described in Schedule A to this Agreement on the same basis and on the same conditions as Society B licenses and collects fees for reprographic reproduction of the rights, works and publications of the rightsholders it represents.

If, in the event of continued non-use by Society B of any rights transferred by this Agreement, then Society A, by twelve months' notice in writing to Society B, may withdraw those rights from the operation of this Agreement.

 

2. LICENCE/AUTHORITY TO COLLECT

On behalf of the rightsholders it represents, Society B hereby grants to Society A the non-exclusive right to enter into licensing agreements with users and to collect fees for the reprographic reproduction in Territory A of the rights, works and publications as described in Schedule B to this Agreement on the same basis and on the same conditions as Society A licenses and collects fees for the reprographic reproduction of such rights, works and publications of rightsholders it represents.

If, in the event of continued non-use by Society A of any rights transferred by this Agreement, then Society B, by twelve months' notice in writing to Society A, may withdraw those rights from the operation of this Agreement.

 

3. EXERCISE OF RIGHTS

In consideration of the above grant, each RRO hereby undertakes within the limits of the grant of rights, works and publications from the other RRO and of its own articles of association or rules and of the governing law of its territory of operation to:

1. exercise the rights of the rightsholders represented by the other RRO in the same ways and to the same extent as it exercises the rights of rightsholders it represents;

2. apply to the rights, works and publications of the rightsholders represented by the other RRO the same tariffs, methods and means of collection and allocation of fees as those applied to the rights, works and publications of its rightsholders providing it does not contravene any governing law;

3. make available for exploitation, and to use all reasonable endeavours to exploit the rights, works and publications granted pursuant to Clauses 1 and 2 hereof in accordance both with each RRO's normal procedures and sound commercial practice;

4. use all reasonable endeavours to collect fees from users at regular intervals;

5. use all reasonable endeavours to promote public awareness of the need, where appropriate, to obtain licences for the reprographic reproduction of works;

6. co-operate with the other RRO in co-ordinating efforts to raise the level of and to increase the effectiveness of copyright protection in their respective territories of operation.

 

4. NO ASSIGNMENT

Other than for the limited purposes of the management of collection or for central licensing, no assignment or transfer of all or any part of the rights and privileges granted to one RRO under this Agreement is permitted without the express written authorisation of the other RRO.

 

5. WARRANTY AND INDEMNITY

1. Each RRO warrants and represents to the other RRO that it has the full right and power to enter into this Agreement and to grant to the other RRO all those rights and powers which are hereby granted.

2. Society A indemnifies and agrees to keep indemnified Society B against all actions, judgments, costs and expenses legal and otherwise which may arise as a consequence of or arise out of any rightsholder in Society A's territory of operation taking action, proceeding or make demand against Society B for the payment of compensation for reprographic reproduction in Society B's territory of operation.

3. Society B indemnifies and agrees to keep indemnified Society A against all actions, judgments, costs and expenses legal and otherwise which may arise as a consequence of or arise out of any rightsholders in Society B's territory of operation taking action, proceeding or making demand against Society A for the payment of compensation for reprographic reproduction in Society A's territory of operation.

4. This Agreement does not relieve either RRO of any obligation under the law of their respective territories of operation to meet claims for compensation from individual rightsholders whose rights, works and publications have been copied by reprographic reproduction whether or not the individual rightsholder is a member or affiliate of the other RRO (or its principals/member organisations). The RRO against which such a claim has been made will provide all relevant information to the other RRO and consult with the other RRO on the settlement to be made with the individual rightsholder.

5. Subject to clause (5.4), whenever a claim for compensation is made by an individual rightsholder represented by one RRO, against the other RRO for reprographic reproduction by a licensed user, which claim under law, the RRO (or its principals/member organisations) is obliged to meet, this RRO may claim redress against the other RRO for money paid on such claim (including legal and other costs) connected therewith That RRO will provide the other RRO with complete information as to the payment made as well as costs.

6. Paragraph (5.5) shall also apply when either RRO is obliged on the basis of a licensing agreement to meet a claim for redress from anyone required under law to pay compensation to a rightsholder who is represented by the other RRO. Where either RRO includes such provisions in its licensing agreement it shall inform the other RRO.

 

6. COVENANTS

During the term of this Agreement both parties covenant and agree:

1. subject to the confidentiality restrictions set out in Schedule C, supply the other RRO with copies of statutes, by-laws, contractual forms or other documents setting out the conditions under which the RRO represents the individual rightsholder,

2. to notify the other RRO in writing from time to time of any changes in its mandate from rightsholders which has bearing on the administration of this Agreement;

3. subject to the confidentiality restrictions set out in Schedule C, upon request from the other RRO, make available all documents records and information which may be of assistance to the other RRO in exercising its obligations under this Agreement including but not limited to information about the types of user licensed the method of licensing, licensing agreements and the statistical investigations of reprographic reproduction which the RRO undertakes;

4. to advise the other RRO of changes to any governing law or other circumstances in its territory of operation which may be relevant to the administration of this Agreement and in the event of any relevant changes to governing law, to co- operate with the other RRO in amending this Agreement to accommodate those changes.

5. subject to the confidentiality restrictions set out in Schedule C, allow the other RRO to consult its records in order that the other RRO may monitor the administration of its rights, works and publications.

PROVIDED THAT the RRO requiring the information under this Clause 6, arranges for the translation (if required) of any documents supplied in accordance with this clause.

 

7. MEMBERS

Each RRO agrees that:

1. its member or affiliate rightsholders will be represented by the other RRO for the purposes of this Agreement without any formalities or authorisations being required of those members or affiliates;

2. the rightsholders whose works form the subject matter of this Agreement do not include rightsholders represented by virtue only of agreements that the RRO holds with RROs not party to this Agreement

3. any dispute between the parties to this Agreement in relation to the representation of a rightsholder by either RRO shall be settled in a spirit of compromise and in the best interests of the rightsholder concerned.

 

8. FUNDS

Each RRO agrees that:

1. Fees collected by Society B for reprographic reproduction of works and publications as set out in Clause 1 of this agreement will be retained by Society B.

2. Fees collected by Society A for reprographic reproduction of works and publication as set out in Clause 2 of this agreement will be retained by Society A.

 

9. ACCOUNTS

Each RRO will provide the other RRO each year with a statement of the fees collected on behalf of the rightsholders in the other RRO's territory of operation and retained by the RRO since the previous year.

 

10. DEDUCTION OF ADMINISTRATIVE EXPENSES

Each RRO shall be entitled to deduct from the fees it collects an amount necessary to cover its effective administration expenses. Each RRO shall always endeavour in this respect to keep such deductions within reasonable limits having regard to local conditions within its territory of operation.

 

11. OTHER DEDUCTIONS

As negotiated by the parties and specified in Schedule D, each RRO shall be entitled, within reasonable limits, to deduct a proportion of the fees it collects which shall be allocated by it for specified social and cultural purposes. Any deduction in accordance with this clause must be made before the distribution amount by the RRO is determined. Each RRO shall always endeavour in this respect to keep such deductions within reasonable limits having regard to local conditions within its of operation.

 

12. DISPUTE SETTLING MECHANISM

Each RRO has entered into this Agreement in good faith and in the spirit of co-operation and will use its best endeavours to resolve by conciliation or mediation any disputes that may arise in relation to the interpretation of this Agreement. Any dispute as to the interpretation or application of this agreement not thus settled shall be resolved by arbitration. The arbitration tribunal shall apply the law of the country in which the reprographic reproduction to which the dispute is related, has taken or will take place. If the dispute is independent of a particular act of reprographic reproduction as mentioned, it shall be subject to the law of the territory of operation of the RRO against whom the claim giving rise to the dispute, is directed. The arbitration shall take place in the territory the law of which is to be applied. The arbitration tribunal shall be composed in accordance with the rules applying in that territory and the arbitration shall be conducted in accordance with the law and custom of that territory, except that no appeal shall lie against the decision of the tribunal on the grounds of fact or law.
When according to the above a dispute or several disputes which are dealt with simultaneously, would involve arbitration in both territories, the arbitration shall take place in the territory of the party against whom the claim which originally gave rise to the dispute, is directed, and the composition of the arbitration tribunal and the procedure shall be according to the rules applied in that territory, except that no appeal shall lie against the decision of the tribunal on the grounds of fact or law.
The member or members of the tribunal shall be knowledgeable in relevant copyright matters.

 

13. TERM

This Agreement shall take effect on signature and shall be for an initial period ending on the [Insert Date] and shall continue from year to year, unless the Agreement is terminated by either RRO by a notice delivered at least six (6) months prior to the date of expiry of the then current period. However, any licence with users shall include the rights, works and publications of the other RRO for the entire period of such licence or for [three/five] years from the date of expiry of this Agreement, whichever period is the shorter. The obligations of the parties under this Agreement shall continue in respect of such licences.

 

14. NOTICES

Notices under this Agreement shall be in writing and shall be sufficiently served if sent prepaid by recorded delivery or by facsimile transmission to the address specified below or to such other address as may be notified by each RRO from time to time. Any notice sent prepaid by recorded delivery shall be deemed served on the commencement of business on the tenth business day next following the sending of the Notice.

Address of Society A:          
Address of Society B:

 

15. WHOLE AGREEMENT

This Agreement and the Schedules hereto embody all the terms agreed between the parties relating to the transfer of Reproduction Rights. The terms and conditions of this Agreement may only be varied by documents in writing, in terms agreed between the parties and any such documents shall be signed by both parties hereto.

IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day and date first hereinbefore mentioned.

 

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