Presentation given by Prof. Jan Rosén, University of Stockholm at the Europeana Extended Collective Licensing workshop in Luxembourg

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

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”