Extended Collective License – what, when, where?

Jan RosénProfessor of Private Law

Stockholm University

ECL incitement § Licensing for mass uses§ Individual licenses fail§ Representative organizations – though recognizing

that no collective organization is able to represent all relevant rightholders

§ High efficiency accomplished – triggered by whom/what?

§ Users’ availability to full repertoires§ Fair terms negotiated among stakeholders§ Opting out possible - but not attractive

Mass uses mess

§ Mass uses comprise works of third parties, non-organized, non-traceable, non-identifiable rightholders & embedded works

§ Constant in-flow of new works§ Ever growing bulk of out-of-print material§ Internationalization of media content§ The imminent question: What to do with

rightholders being ”outsiders”?

ECL features§ Users and representative collective rights

management organizations conclude agreements upon free negotiations

§ The terms of the agreement are by law made applicable to non-represented rightholders – a true extension effect of the agreement

§ User may dispose over all material of the kind set out in the agreement

§ Non-represented rightholders are (i) guaranteed equal treatment, (ii) have a right to individual remuneration and may, in most cases, (iii) prohibit the use (opt out)

EU approaches to ECL:s§ Sat/Cab Directive (93/83/EEC) Art. 3.2: A collective agreement may be extended to non-

represented rightholders (under certain conditions – simulcast with terrestrial broadcast + opt out)

§ Paragraph 28: ”… to ensure the smooth operation of contractual arrangements…”

§ An ”exclusive collective exercise of the authorisation right”

§ ”the authorisation right as such remains intact and only the exercise of this right is regulated to some extent”.

EU approaches…§ Copyright Directive (2001/29/EC)§ Paragraph 18: ”This Directive is without prejudice

to the arrangements in the member States concerning the management of rights such as extended collective licenses.”

§ Conclusion: ECLs are not considered as limitations or exceptions in the meaning of the Directive, hence no need to be enumerated in Article 5.

Different Nordic approaches?

Representative organizationFinland: organization representing, in a given field, a large

number of authors of works used in the countryDenmark/Norway: Organization must represent a substantial

part of authors in a certain category, whose works are used in the country. ”Substantial” - majority not required

Sweden: proposed – representing a large number of works used in Sweden

Conclusion: No international coverage formally or explicitly required – though broad (also international) representativeness assumed (Fi/Sw)

Approval of organization

§ Denmark, Finland, Norway: Organization concluding ECL agreement is subject to the approval of a public authority.

§ A list of qualitative criteria must be met, such as representativeness

§ Sweden: proposed – The organization that is most representative and best represents the authors of the works in the area exploited in Sweden

One or several organizations?§ Denmark: Only one organization may get approval

in a given area§ Norway: Possibility of a joint organization of

several copyright management organizations – but mainly approval of a single organization

§ Finland: CA provides for approval of joint organizations in a given field, if representativeness is accomplished hereby

Exclusivity of an organization?

§ Swedish proposal : Merely the organization that is most representative and best represents the authors in a certain category of works, used in the country, is competent to conclude an agreement with ECL effect

Conflict resolution

§ The Nordic countries employ different models for resolution of conflicts as regards terms and conditions of an ECL agreement, such as mediation, arbitration and court proceedures

§ Generally; explicit legislative provisions on a resolution order – specific authorities employed in all Nordic countries

SWEDEN - Law on mediation in certain copyright disputes

§ Disputes concerning the conclusion of ECL agreements on (i) reproduction in educational activities, (ii) informational copying, (iii) libraries communication of works to borrowers and distribution of digital copies and (iv) retransmission of broadcasts – for authors’ works, performances, sound recordings and photographic pictures.

§ If proposed mediation fails – the Government shall be notified, if parties have not agreed to submit the dispute to arbitration

Areas of ECL use in the Nordic countries

§ All ECLs, offering an extension effect, are provided in sectorial provisions, defining specific use areas

§ Denmark: 8 specific ECLs§ Finland: 9 specific ECLs§ Norway: 7 specific ECLs§ Sweden: 6 specific ECLs (4 more proposed)

Special ECL

§ Sweden: proposed special ECL – modelled by Danish law - in an area defined ad hoc by the contracting parties if

§ (i) applied to a well-defined area§ (ii) organizations are most representative and best

represents the authors§ (iii) use of the ECL model is necessary (no

alternate licensing model available)§ (iv) agreement must be in writing and demonstrate

the intention to bring about extended effect

Benefits of the ECL§ Maximising effective administration – minimising

costs of (individual) transactions§ One-stop-shop§ Legal certainty§ Benefits rightholders, users and public interest§ Adapted to prevailing circumstances and

conditions§ Differentiating remunerations§ No need for a prior search

Deficits of ECLs

§ None!

§ Well, who’s paying for communication to the public in cross-border online access?

§ (An ECL application can provide solutions also for trans-frontier arrangements!)

Don’ts in ECL policies

§ No EU regulation hampering the elastic scope of ECLs or the future development of ECLs

§ Don’t make Member States invariably having to relate to ”first publication” or like prerequisites – the raison d’être and quality of an ECL is to embrace ”all”; repertoires, areas of works and performances

An OW Directive?

§ If at all OW would be regulated in a EU Directive, it should contain the following recital:

”This Directive should be without prejudice to arrangements in the Member States concerning the management of rights such as collective licenses”