The legal technique referred to as “Legal Presumption” implies that the CMO is presumed to represent all authors and publishers concerned, regardless of whether they have granted a mandate to the CMO, unless they have explicitly notified the CMO that they do not want to be represented by it.
An example of the use of the Legal Presumption technique is found in the German Out-of-Commerce works legislation.
For information on the German system, see: Press Release, VG Wort, New German Legislation on Orphan and Out-of-Commerce Works, available at http://www.vgwort.de/fileadmin/pdf/allgemeine_pdf/German_legislation_on_orphan_and_out-of-commerce_works.pdf
The administration of out-of-commerce works by the local RRO is based on the Legal Presumption technique, as in an ECL scheme, in the new Article 13d:
“§ 13d Out of Commerce Works
(1) It shall be presumed that a collecting society which administers the rights of reproduction ( § 16 of the Copyright Law) and making available to the public ( §19a of the Copyright Law) in out of commerce works is entitled as part of its activities also to administer these rights in works of rightholders who have not authorized it to administer their rights provided:
1. it involves out of commerce works which were published before 1 January 1966 in books, scientific journals, newspapers, magazines or other categories of works,
2. the works are to be found in the collections of publically accessible libraries, educational institutions, museums, archives and institutions concerned with film or audio heritage,
3. the copying and making available to the public do not serve commercial purposes,
4. the works are included in the Register of Out of Commerce Works (§ 13e) on the application of the collecting society and
5. the rightholder has not objected to the proposed administration of his rights by the collecting society within six weeks of the notification of the entry in the Register.
(2) Rightholders can object to the administration of their rights by the collecting society at any time.
(3) If more than one collecting society administers the rights in accordance with paragraph (1), the presumption in paragraph (1) shall only apply if the rights are administered by all collecting societies together.
(4) In so far as the collecting society receives remuneration for rightholders who have not entrusted the administration of their rights to the collecting society, the collecting society shall give an indemnity against claims by such rightholders to those liable to pay the remuneration. If it is presumed in accordance with paragraphs (1) and (2) that a collecting society is entitled to administer rights, a rightholder shall have the same rights and obligations towards the collecting society as if he had transferred his rights for administration.”
Translation (unofficial) of the provisions of the out-of-commerce law: