1. Extended Collective License – what, when, where?
Jan Rosén
Professor of Private Law
Stockholm University

2. 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

3. 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”?

4. 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)

5. 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”.

6. 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.

7. Different Nordic approaches?
Representative organization
Finland: organization representing, in a given field, a large number of authors of works used in the country
Denmark/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)

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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)

14. 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

15. 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

16. Deficits of ECLs
None!
Well, who’s paying for communication to the public in cross-border online access?
Can you really get Pan-European, Regional or worldwide coverage – one stop service?

17. 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

18. 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”