1 Extended Collective License – what, when, where? Jan RosénProfessor of Private LawStockholm 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 rightholdersHigh efficiency accomplished – triggered by whom/what?Users’ availability to full repertoiresFair terms negotiated among stakeholdersOpting out possible - but not attractive
3 Mass uses messMass uses comprise works of third parties, non-organized, non-traceable, non-identifiable rightholders & embedded worksConstant in-flow of new worksEver growing bulk of out-of-print materialInternationalization of media contentThe imminent question: What to do with rightholders being ”outsiders”?
4 ECL featuresUsers and representative collective rights management organizations conclude agreements upon free negotiationsThe terms of the agreement are by law made applicable to non-represented rightholders – a true extension effect of the agreementUser may dispose over all material of the kind set out in the agreementNon-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 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 requiredSweden: proposed – representing a large number of works used in SwedenConclusion: 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 representativenessSweden: 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 areaNorway: Possibility of a joint organization of several copyright management organizations – but mainly approval of a single organizationFinland: 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 resolutionThe Nordic countries employ different models for resolution of conflicts as regards terms and conditions of an ECL agreement, such as mediation, arbitration and court proceeduresGenerally; 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 areasDenmark: 8 specific ECLsFinland: 9 specific ECLsNorway: 7 specific ECLsSweden: 6 specific ECLs (4 more proposed)
14 Special ECLSweden: 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 ECLMaximising effective administration – minimising costs of (individual) transactionsOne-stop-shopLegal certaintyBenefits rightholders, users and public interestAdapted to prevailing circumstances and conditionsDifferentiating remunerationsNo need for a prior search
16 Deficits of ECLsNone!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 policiesNo EU regulation hampering the elastic scope of ECLs or the future development of ECLsDon’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”