Extended Collective Licensing Models and Practices World Intellectual Property Organization (WIPO) Ministry of Culture and National Heritage Warsaw, March 16 and 17, 2016 Jukka Liedes Finnish Copyright Society

Extended Collective Licence (ECL) Context mass uses large repertoires large numbers of rightholders large number of use transactions and/or users The ECL provides legal certainty (for users) streamlines licensing makes copyright functioning Orphans Two possibilities to make the use of orphan works permissible limitation of the exclusive right of authorisation licensing the use (through the extension effect) 2

The Problem of Outsiders The representativeness is never complete: Mass uses involve large repertoires and large number of rightholders Most mass uses concern also works of rightholders who have not given a mandate to a CMO No collective management organisation represents all rightholders in a given field An agreement between a CMO and the user bind only the contracting parties Use of works of third parties would be technically unlawful 3

ECL - History The 1950’s STIM, the Swedish composers’ society was licensing the broadcasting of music by the Swedish Broadcasting Company The Swedish Broadcasting Company had, since 1930’s, been asking for a non-voluntary licence to use music, in order to achieve legal certainty Prof. Svante Bergström devised in the 1950’s the ”avtalslicens”, ”contractual licence”, with the extension effect The ”avtalslicens” was included in the national legislations of the Nordic Countries in 1960/1961 for musical and literary works 4

The Problem of Outsiders the Non-represented Possible solutions: Collective management of rights – indemnity clauses Compulsory licensing, statutory licences Legal presumption of representation Collective management of rights (as the sole solution, “mandatory”) Extended Collective Licences 5

Problem of outsiders - Solutions Based on Extension Legal presumption of representation organisation is deemed to be mandated to manage the rights of the outsiders Mandatory collective management a given right may be exercised only through a collecting society The Extended Collective Licence terms of the agreement are made applicable to non-represented rightholders 6

ECL in the EU Legislation Satellite and Cable Directive (1993), Art. 3 (Acquisition of broadcasting rights) 1.Member States shall ensure that the authorization referred to in Article 2 may be acquired only be agreement. 2. A Member State may provide that a collective agreement between a collecting society and a broadcasting organization concerning a given category of works may be extended to rightholders of the same category who are not represented by the collecting society, provided that: - the communication to the public by satellite simulcasts a terrestrial broadcast by the same broadcaster, and -the unrepresented rightholder shall, at any time, have the possibility of excluding the extension of the collective agreement to his works and of exercising his rights either individually or collectively. 3. Paragraph 2 shall not apply to cinematographic works, including works created by a process analogous to cinematography. 7

ECL in the EU Legislation Information Society Directive (2001), Preamble (18) This Directive is without prejudice to the arrangements in the member states concerning the management of rights such as extended collective licences. –The very purpose of preamble 18 was to allow ECL’s in cases in Art 5, to maintain the flexibiliity of the system –“A dynamic phenomenon cannot be regulated by a static regulation.” Orphan works Directive (2012), Preamble (24) 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. 8

ECL in the EU Legislation Collective management Directive (2014), Preamble (12) 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. 9

Operation of the ECL The collective rights management organisation and the user conclude an agreement on the basis of free negotiations The organisation has to be a representative one The terms of the agreement are by law made applicable on non- represented rightholders It is lawful for the user to use all materials covered by the agreement, without need to meet individual claims by outsiders and criminal sanctions Non-represented rightholders have a right to individual remuneration Non-represented rightholders have, in most cases, a right to prohibit the use of their works, opt-out 10

Systemic Provisions – Finland Extended collective licence (607/2015) Section 26 (1) The provisions of this Act regarding extended collective licences shall apply when the use of a work has been agreed upon between the user and the organisation which is approved by the Ministry of Education and Culture and which represents, in a given field, numerous authors of works used in Finland. An approved organisation is deemed to represent other authors of works in the same field under the licence. A licensee authorised by virtue of extended collective licence may, under terms determined in the licence, use all works by authors in the same field, (2), (3), (4) and (5), contain conditions for approving an ECL organisation, appeal, reversal, and stipulations concerning distribution, and right to individual remuneration 11

Novelty in the Provisions of Finland Extension plus presumption of representation Extended collective licence (607/2015) Section 26 (1) The provisions of this Act regarding extended collective licences shall apply when the use of a work has been agreed upon between the user and the organisation which is approved by the Ministry of Education and Culture and which represents, in a given field, numerous authors of works used in Finland. An approved organisation is deemed to represent other authors of works in the same field under the licence. A licensee authorised by virtue of extended collective licence may, under terms determined in the licence, use all works by authors in the same field (2), (3), (4) and (5), conditions for approving an ECL organisation, appeal, reversal, and stipulations concerning distribution, right to individual remuneration 12

Criteria and Supporting Elements of the ECL Criteria and supporting elements in the Nordic Countries: Requirement of representativeness Approval of the organisations (in a number of countries) Treatment of the non-represented authors –equal treatment –enjoy the same collective benefits as the represented –right to individual remuneration –possibility to opt out 13

Requirement of Representativeness Finland ”… which represents, in a given field, numerous authors of works used in Finland” Denmark “… an organisation comprising a substantial number of authors of a certain type of works which are used in Denmark within the specified field” Sweden (and Norway) a similar chance was introduced. 14

Conditions for approval Extended collective licence (607/2015) Section 26 (2) The Ministry of Education and Culture shall approve the organisation on application for a fixed period, for a maximum of five years. The organisation to be approved must have the financial and operational prerequisites and capacity to manage the affairs in accordance with the approval decision. The organisation shall annually submit an account to the Ministry of Education and Culture of the actions it has carried out pursuant to the approval decision. 15

When several organisations are needed Extended collective licence (607/2015) Section 26 (2, contd) The organisation, or organisations, where the representation of the authors can be achieved only through the approval of several organisations, must represent a substantial proportion of the authors of works of different fields whose works are used under a given provision on extended collective licence. When several organisations are approved to grant licence for a given use of works, the terms of the approval decisions shall ensure, where needed, that the licences are granted simultaneously and on compatible terms. The approval decision may also lay down terms guiding practical licensing in general for the organisation. 16

Examples of Sectorial Provisions Photocopying ( /821) Section 13 ( /821) A published work may be reproduced by photocopying or by corresponding means by virtue of extended collective licence as provided in section 26. Retransmission of a radio or television transmission ( /821) Section 25h ( /446) (1) A work included in a radio or television transmission may be retransmitted without altering the transmission by virtue of extended collective licence, as provided in section 26, for reception by the public simultaneously with the original transmission. ( /821) 17

Conditions of the ECL Agreements Conditions on the use can be designed to correspond the needs concerning the use and the possible concerns of the rightholders –The conditions of the agreement may be differentiated concerning different uses Agreement(s) may differentiate the remuneration to be paid for different kinds and categories of works. –The licence may also, concerning some uses or some kinds of works, be granted without remuneration. Agreement may contain different conditions concerning different parts of the repertoire –and even include conditions prohibiting the use of certain types of works. The parties may design the conditions concerning reporting of the use taking into account all circumstances prevailing. –The required reporting of use may be precise work-by-work reporting or e.g. of a statistical nature 18

Areas of Use of the ECL in Finland Photocopying (Section 13) Use for internal communication (Section 13 a.1) Use of works for educational activities and scientific research (Section 14.1) Use of works by archives, libraries and museums (Section 16 d) Use of works of fine art in collections (Section 25 a.2) Original radio and television transmissions (Section 25 f.1) Ephemeral recordings (Section 25 f.3) A new transmission or making available of an archived television programme or newspaper materials (Section 25 g.1 and 2) Retransmission of a radio or television transmission (Section 25 h.1) Net-PVR services (Section 25 l.1) Discussion and consideration continues on a general ECL 19

Areas of use - Denmark Copying in the educational activities (§ 13) Photocopying in business enterprises, institutions etc (§ 14) Online distribution of articles by libraries (§ 16 b) Use for the benefit of persons with visual and hearing impairments (§ 17.4) Use of works of fine art (§ 24) Original radio and television transmissions (§ 30) Use by the broadcasting organisations of works in their archives (§ 30 a) Retransmission of broadcasts (§ 35) In addition to these specific provisions Denmark introduced in 2008 a general ECL (§ 50.2). 20

Areas of Use - Norway Use of works for educational activities (§ 13b) Use of works in institutions, business enterprices etc. (§ 14) Use of works in archives, libraries and museums (§ 16a) Reproduction for the benefit of persons with functional disabilities (§ 17b) Broadcasting (§ 30) Use of works in broadcasters’ archives (§ 32) Retransmission of broadcasts (§ 34) In Norway, a general ECL was included in the system in 2015 by adding provisions in Section §

Areas of Use - Sweden Reproduction in public authorities’, business enterprises’ and organisations’ activities (42 b §) Reproduction in the educational system (42 c §) Making available and distribution of works in archives and libraries (42 d §) Radio and television transmissions (42 e §) Retransmission of broadcast works (42 f §) Use of television programmes produced or commissioned by the radio or television organisation (42 g) A general ECL, a possibility to use the mechanism also in other cases than enumerated in the sectorial provisions, was added in 2013 in the Swedish Copyright Act (Section 42 h). 22

Benefits of the ECL Legal certainty Protection of users Flexibility Effectiveness Makes copyright functioning Permits avoidance of limitations 23

END To be continued when we come to the Cross-border Issues 24