E XTENDED C OLLECTIVE L ICENSING : DIFFERENT MODELS AMONG S CANDINAVIAN COUNTRIES AND LONG TERM PRACTICES OF STATES Warsaw, March 16, 2016 Johan Axhamn, LL.M., MSc., PhD researcher in private law, Faculty of Law, Stockholm university

Individual managment Collective management based on individual mandates, sometimes supplemented by indemnity clauses Collective management supported by legislation, e.g. extended effect, presumption of representation etc. Exceptions /limitations S PECTRUM OF VEHICLES FOR ACCESS TO COPYRIGHT PROTECTED WORKS

R EASONS FOR ECL S Areas of mass use Demand for access to large repertoires, without information on use ex ante Individual management not practically possible Policy assessment that (every) use, in principle, should be legal Policy assessment that it would be (too) detrimental to right holders’ interests to introduce an exception or limitation A solution based on collective management, supported by legislation, has been deemed to strike a fair balance – middle ground – between right holders’ interests and users’ interests provides market-based remuneration to right holders provides legal certainty to users

C URRENT ECL PROVISIONS IN S WEDEN On the Making of Copies within Public Authorities, Enterprises, and Organizations, etc. (article 42b SCA) On the Making of Copies within Educational Activities (article 42c SCA) On the Possibilities for Archives and Libraries to Communicate Works to the Public, etc. (article 42d SCA) On Sound Radio or Televisions Broadcasts (article 42e SCA) On Re-transmissions of Works Contained in Sound Radio or Television Broadcasts (article 42f SCA) Re-use of works in Sound radio or Television (article 42g SCA) General/generic ECL (article 42h SCA)

T HE E XTENDED E FFECT An extended collective license as referred to in Articles 42 b–42 h applies to the exploitation of works in a specific manner, when an agreement has been concluded concerning such exploitation of works with an organization representing a substantial number of authors of works used in Sweden in the field concerned. The extended collective license confers to the user the right to exploit works of the kind referred to in the agreement despite the fact that the authors of those works are not represented by the organization. [Article 42 a, first paragraph, Swedish Copyright Act]

S AFEGUARDS FOR OUTSIDERS […] The conditions concerning the exploitation of the work that follow from the agreement apply. In respect of the remuneration deriving from the agreement and in respect of other benefits from the organization that are essentially paid for out of the remuneration, the author shall be treated in the same way as those authors who are represented by the organization. Without prejudice to what has been said now, the author has, however, always a right to remuneration for the exploitation, provided he or she forwards his or her claims within three years from the year in which the work was exploited. Claims for remuneration may be directed only towards the organization. [Article 42 a, third paragraph, Swedish Copyright Act]

S AFEGUARDS FOR OUTSIDERS The opt out The provisions […] do not apply if the author has filed a prohibition against the [use] with any of the contracting parties.

C ORE ELEMENTS OF ECL Extended effect of a collective agreement between a representative organisation and a user Possibility for outsiders to opt out Outsiders hava a right of equal treatment Outsiders have a right of individual remuneration (if they put forward, and substantiate an individual claim)

R ELATIONSHIP TO PROVISIONS ON E XCEPTIONS AND LIMITATIONS ? For EU MS, articles of directive 2001/29 includes a closed list of permitted exceptions and limitations The three-step test in article 5.5 holds that the exceptions and limitations.. shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the right holders.

E XTENDED COLLECTIVE LICENSING IS A MECHANISM FOR COLLECTIVE MANAGEMENT – I. E. A FORM OF EXERCISE – OF RIGHTS Recital 18 to directive 2001/29: “This Directive is without prejudice to the arrangements in the Member States concerning the management of rights such as extended collective licences.” Recital 24 to directive 2012/28: ”This Directive is without prejudice to the arrangements in the Member States concerning the management of rights such as extended collective licences, legal presumptions of representation or transfer, collective management or similar arrangements or a combination of them, including for mass digitisation.” Article 1(5) to directive 2012/28: “This Directive does not interfere with any arrangements concerning the management of rights at national level.”

Recital 12 to directive 2014/26 “This Directive, while applying to all collective management organisations, with the exception of Title III, which applies only to collective management organisations managing authors’ rights in musical works for online use on a multi-territorial basis, does not interfere with arrangements concerning the management of rights in the Member States such as individual management, the extended effect of an agreement between a representative collective management organisation and a user, i.e. extended collective licensing, mandatory collective management, legal presumptions of representation and transfer of rights to collective management organisations.”

S UMMING UP : E XTENDED COLLECTIVE LICENSING IN THE S CANDINAVIAN COUNTRIES As ECLs are not exceptions/limitations, they do not fall within the scope of the three step text ECLs (often) supplements exceptions/limitations in national law The legitimacy of ECL schemes often presuppose an excellent national structure and culture of collective management of rights.. the CRM directive might support such development

C ONTACT Johan Axhamn, LL.M., MSc., PhD researcher in private law, Faculty of Law, Stockholm university Related publications Exceptions, limitations and collective management of rights as vehicles for access to information Cross-Border Extended Collective Licensing: A solution to Online Dissemination of Europe’s Cultural Heritage?