Campi di gioco e vasi di Pandora: la gestione collettiva dei diritti d’autore nel confronto UE – USA

Directive 2014/26/EU on collective management of copyright and related rights aims at creating a level playing field of competition between collective management organisations. The article compares the European system with the US system, and shows that the US system is based on a different approach. Not only the US system in based on the application of general antitrust rules, where the EU system provides for special rules, which are relevant independently from any consideration of market power, price fixing or excessive prices practices. In addition, the US level playing field created through consent decrees only apparently resembles the system of special rules introduced through the European directive. The US system strikes essentially on the objective to find a proper balance between the interest in lowering transaction costs and the opposite interest in preventing excessive prices. Although the same objective finds many references in European scholarship, the article suggests that the problem of transaction costs is not central in the system of the EU directive. This conclusion argues through the solution adopted by US courts in Pandora case. Pandora was essentially judged considering the interest in lowering transaction costs; but this judgement would be completely inconsistent with the European di-rective. Therefore, the article proposes a different approach to the European directive. Under this alternative approach, transaction costs do not play a central role. Instead, it should be considered the interest in realizing a fair market system to determine a proper compensation of copyright and related rights owners. Only after this mechanism (implemented through the directive) is furtherly investigated, it should be evaluated if it would be consistent with the general antitrust rules when (and only when) a collective management organisation exerts market power. This investigation should also consider another aspect of US implementation of antitrust rule to collective management organisations, namely the notion of “right compensation” of intellectual property owner under US general antitrust rules. This notion is not clearly expressed in US antitrust cases, and sometimes seems to be contradictory exposed. Therefore, the notion of “right compensation” according to the US system will be investigated in future articles, which will consider US cases concerning the application of the special rules contained in the consent decrees.