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

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

2 ECL incitement Licensing for mass uses Licensing for mass uses Individual licenses fail Individual licenses fail Representative organizations – though recognizing that no collective organization is able to represent all relevant rightholders Representative organizations – though recognizing that no collective organization is able to represent all relevant rightholders High efficiency accomplished – triggered by whom/what? High efficiency accomplished – triggered by whom/what? Users availability to full repertoires Users availability to full repertoires Fair terms negotiated among stakeholders Fair terms negotiated among stakeholders Opting out possible - but not attractive 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 Mass uses comprise works of third parties, non-organized, non-traceable, non- identifiable rightholders & embedded works Constant in-flow of new works Constant in-flow of new works Ever growing bulk of out-of-print material Ever growing bulk of out-of-print material Internationalization of media content Internationalization of media content The imminent question: What to do with rightholders being outsiders? 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 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 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 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) 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: 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… Paragraph 28: … to ensure the smooth operation of contractual arrangements… An exclusive collective exercise of the authorisation right 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. 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) 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. 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. 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 : Organization concluding ECL agreement is subject to the approval of a public authority. 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 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 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 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 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 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 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 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 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. 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 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 All ECLs, offering an extension effect, are provided in sectorial provisions, defining specific use areas Denmark: 8 specific ECLs Denmark: 8 specific ECLs Finland: 9 specific ECLs Finland: 9 specific ECLs Norway: 7 specific ECLs Norway: 7 specific ECLs Sweden: 6 specific ECLs (4 more proposed) 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 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 (i) applied to a well-defined area (ii) organizations are most representative and best represents the authors (ii) organizations are most representative and best represents the authors (iii) use of the ECL model is necessary (no alternate licensing model available) (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 (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 Maximising effective administration – minimising costs of (individual) transactions One-stop-shop One-stop-shop Legal certainty Legal certainty Benefits rightholders, users and public interest Benefits rightholders, users and public interest Adapted to prevailing circumstances and conditions Adapted to prevailing circumstances and conditions Differentiating remunerations Differentiating remunerations No need for a prior search No need for a prior search

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

17 Donts in ECL policies No EU regulation hampering the elastic scope of ECLs or the future development of ECLs No EU regulation hampering the elastic scope of ECLs or the future development of ECLs Dont make Member States invariably having to relate to first publication or like prerequisites – the raison dêtre and quality of an ECL is to embrace all; repertoires, areas of works and performances Dont make Member States invariably having to relate to first publication or like prerequisites – the raison dêtre 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: 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


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