Extended collective license

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As extended collective license (also: extended collective agreement license) ( English extended collective license , ECL) is referred to in Copyright , provided in some jurisdictions type of license . In systems with extended collective licenses it is possible for collecting societies to conclude usage agreements with users for a certain class of works, which are then also extended to those works whose rightsholders have not concluded a management agreement with the collecting society. In the copyright discussion, the extended collective licenses are discussed in particular as a model with which the clarification of rights in extensive digitization projects can be considerably simplified. The origin of the system of extended collective licenses lies in the Scandinavian countries ; however, they are now also used in other countries.

Introduction and problem outline

Role of the collective management of rights by collecting societies. In general, the protection of works under copyright law as well as a number of related property rights (also: ancillary copyrights) , which are also regulated under copyright law , are exclusive rights: In principle, only the author or owner of the ancillary copyright (hereinafter summarized: property rights holder) may use the subject matter. If a third party also wants to undertake acts of use that go beyond what is possible anyway due to the legally granted exceptions to protection ( barriers ) or the statutory restrictions on the subject of protection, he must therefore have the necessary rights granted or transferred by the owner of the property right . Since it is extremely time-consuming, both for the original proprietor of the property rights and for interested users, to negotiate a bilateral license agreement for each intended act of use - just think of a radio station that broadcasts different music titles from dawn to dusk - and also the prosecution of legal violations for is very costly for the individual, there are collecting societies in many areas . In principle, their role consists in the fact that property right holders grant them certain rights to exercise within the framework of management contracts; Afterwards, those willing to use can have the necessary rights of use granted or transferred by the collecting societies using standardized procedures. In Germany, for example, many composers entrust GEMA with the exercise of some of their rights. The legislature also incentivizes the organization in collecting societies by bundling certain remuneration claims with the collecting societies.

Limits of the classical model of perception: outsider problem. The simplification of legal relations aimed at with collecting societies naturally reaches its limit where extensive mass use of works is intended and required by law, but not all relevant owners of property rights have actually concluded management contracts with a collecting society. (Of course, this is the normal case; something else only arises in fact if the legislator designs the relevant property right from the outset in such a way that it can only be exercised by a collecting society - and generally not by the original rights holder himself.) This so-called outsider problem can can be countered in different ways: An alternative with a relatively high intensity of interference in the private autonomy of the right holder is the establishment of a legal license or even a remuneration-free barrier regulation. Another approach in dealing with outsiders is a system of collective licenses.

Basic functionality

Common features of a system with extended collective licenses are:

  • First of all, the legislature defines for which property rights, which types or categories of subject matter and which uses an "extension" to outsiders should be made possible. At the same time, it is stipulated that such licenses can only be negotiated by collecting societies that exceed a certain threshold of importance. Otherwise there would be the danger that collecting societies, which represent only a few rightsholders and negotiate license agreements, deviate too strongly from the interests of the entirety of the rightsholders concerned.
  • These regulations do not yet have any direct impact on the legal situation. They only become practically relevant when a correspondingly privileged collecting society concludes a license agreement with interested users. A collecting society is free to do this, when and with what result.
  • In negotiations between a collecting society and those interested in using it, it is precisely determined to which types or categories of protected works or services and to which uses the agreement should extend. If these features are congruent with the areas stipulated by the legislature in which it provides for extended collective licenses, the agreements then not only extend to those subject matter whose rights holders have concluded a management agreement with the collecting society, but also to those of other rights holders. In the case of acts of use, they also - like the members of the collecting society - are entitled to the negotiated remuneration.

In some national implementations it is provided that affected rights holders who have not concluded a management agreement with the collecting society (outsiders) can object to the extended licensing; other countries do not provide for such an option.

National regulations

Denmark

overview

The extended collective license model has a long tradition in Denmark - as in the other Scandinavian countries. The first extension clause was introduced as early as 1961; it should facilitate the broadcasting of published works by state radio and television companies. Today extended collective licenses play a key role in the Danish copyright system; Riis / Schovsbo even suspect that Denmark is the country worldwide in which extended collective licenses are of the greatest importance for the national copyright regime.

There are systematically two types of provisions on extended collective licenses in the Danish Copyright Act: On the one hand, there are a large number of regulations that expressly provide for the possibility of concluding extended collective licenses in specially defined areas (specific regulations). In addition, a catch-all provision has existed since 2008 that enables extended collective licenses also in areas that are not expressly named in the law. In both cases, a collecting society can only negotiate an extended collective license if it represents a “substantial part of the authors of a certain type of work used in Denmark” (Section 50 (1)). Collecting societies that conclude extended collective licenses must be recognized by the Ministry of Culture (Section 50 (4)).

Specific regulations

Extended collective licenses are expressly provided for the following areas:

  • Reproductions of published works for teaching purposes (§ 13);
  • Duplication of technical articles from newspapers, magazines and collected works by means of photocopy or similar duplication processes by public or private institutions, organizations and companies for internal use for operational purposes (Section 14);
  • digital reproductions made by public libraries on request of articles from newspapers, magazines and collected works, short excerpts from books and other published literary works as well as of illustrations and music which are reproduced in connection with the text (§ 16b);
  • Reproductions of works that have been broadcast on radio or television by means of sound or image recording by government agencies and social or non-commercial organizations for the benefit of visually and hearing impaired people (Section 17 (4));
  • Reproductions of published works of art (§ 24a);
  • the broadcast of published works by the state radio and television companies Danmarks Radio and TV 2 including regional channels on television or radio (Section 30);
  • the retransmission and making available to the public of works that were broadcast as part of their own production by the above-mentioned broadcasters before January 1, 2007 (Section 30a);
  • the simultaneous and unchanged retransmission of works that are broadcast wirelessly on radio or television via cable systems and their retransmission to the public in the same way using radio systems (Section 35 (1)).
  • the reproduction by third parties of works that are broadcast on radio or television in a manner other than in the above-mentioned cases of Section 35 (1), and the making available to the public, with the reproduction and making available in connection with the broadcast of these works take place (Section 36 (4));
  • the making available to the public (including ancillary copying) by third parties of works that have previously been made publicly available by a broadcaster, provided that the renewed making available to the public takes place in the same way and within the same period of time as the previous making available by the broadcaster (Section 36 (5) ).

The extended collective effect is not mandatory in these cases; Representative collecting societies and users are not prevented from concluding "normal" usage contracts in the areas covered.

“General” catch-all provision

According to the catch-all provision of Section 50 (2), the Ministry of Culture can also enable collecting societies that represent a sufficient number of rights holders of a certain type of work to conclude usage agreements with exploiters that have an extended collective effect. The regulation was introduced in 2008 in the course of discussions about the digitization of cultural assets in libraries, museums and archives.

Such authorizations by the Ministry of Culture are in practice limited to a certain area and on the basis of a certain contractual intention. This differs from the specific provisions where the relevant collecting societies are usually recognized in advance for the conclusion. Negotiating parties (collecting societies and users) therefore do not have to wait for a corresponding decision from the Ministry of Culture if a specific provision is available and there is no uncertainty about the ministerial decision; In addition, the legislature is sending out specific regulations to send a signal that a clarification of rights via extended collective licenses is desired in the regulated area, which increases legal security for exploiters and collecting societies. In some cases, therefore, express provisions were later created for extended collective licenses, which were initially approved by the Ministry of Culture under Section 50 (2); An example of this is the above-mentioned Sections 35 (4) and (5), which were incorporated into the Danish Copyright Act in 2014, although many of the uses covered by it had already been possible under extended collective licenses since 2009.

Contradiction

In most cases, rights holders who are only covered by a contract as outsiders can object to the use of a work within the framework of the collective agreement. Something different applies, for example, to agreements regarding the simultaneous and unchanged retransmission of works that are broadcast wirelessly on radio or television via cable systems and their retransmission to the public in the same way using radio systems (Section 35 (1)). This is consistent with the corresponding requirements of the Satellite and Cable Directive ( Directive 93/83 / EEC ).

Web links

literature

  • Daniel J. Gervais: Extended Collective Licensing: A Significant Contribution to International Copyright Law and Policy . In: Gunnar Karnell et al. (Ed.): Liber amicorum Jan Rosén . eddy.se ab, Visby 2016, ISBN 978-91-85333-66-0 , p. 311-321 .
  • Terese Foged: Danish licenses for Europe . In: European Intellectual Property Review . tape 37 , no. 1 , 2015, p. 15-24 .
  • Gunnar Karnell: Avtalslicens Konstruktionen, principiella och Praktiska frågor . In: Nordiskt immaterial rättsskydd . tape 50 , 1981, pp. 255-267 .
  • Gunnar Karnell: Extended Collective License Clauses and Agreements in Nordic Copyright Law . In: Columbia-VLA Journal of Law & the Arts . tape 10 , no. 1 , 1985, pp. 73-82 .
  • Tarja Koskinen-Olsson, Vigdís Sigurdardóttir: Collective Management in the Nordic Countries . In: Daniel J. Gervais (Ed.): Collective Management of Copyright and Related Rights . 3. Edition. Kluwer, Alphen aan den Rijn 2016, ISBN 978-90-411-5441-5 , p. 243-262 .
  • Thomas Riis, Jens Schovsbo: Extended Collective Licenses and the Nordic Experience: It's a Hybrid but is it a Volvo or a Lemon? In: Columbia Journal of Law & the Arts . tape 33 , no. 4 , 2010, p. 471-498 .
  • Thomas Riis, Jens Schovsbo: Extended collective licenses in action . In: International Review of Intellectual Property and Competition Law . tape 43 , no. 8 , 2012, p. 930-950 .
  • Alain Strowel: The European “Extended Collective Licensing” Model . In: Columbia Journal of Law & the Arts . tape 34 , no. 4 , 2011, p. 665-670 .
  • Felix Trumpke: exclusivity and collectivization: The Scandinavian model of extended collective license (Extended Collective Licensing) (=  treatises on copyright and communication law at the Max Planck Institute for innovation and competition . No. 60 ). Nomos, Baden-Baden 2016, ISBN 978-3-8487-2690-5 .
  • Vappu Verronen: Extended Collective License in Finland: A Legal Instrument for Balancing the Rights of the Author with the Interests of the User . In: Journal of the Copyright Society of the USA Band 49 , no. 4 , 2002, p. 1143-1160 .
  • Zhang Zijian: Transplantation of an Extended Collective Licensing System in China . In: China Legal Science . tape 3 , no. 6 , 2015, p. 71-100 .

Remarks

  1. ↑ For example Peter Schønning, Denmark. Introduction, in: Möhring / Schulze, sources of copyright, status: 56. EL 2005, p. 26 f .; Marianne Levin and Annette Kur, Scandinavia - with special emphasis on Sweden, in: Friedrich-Karl Beier (Ed.), Copyright Contract Law. Festgabe for Gerhard Schricker on his 60th birthday, Beck, Munich 1995, ISBN 3-406-39690-9 , pp. 725–769, here pp. 748 ff.
  2. ↑ See Guibault in Dreier / Hugenholtz, Concise European Copyright Law, 2nd ed. 2016, p. 532.
  3. ↑ See Riis / Schovsbo, Extended Collective Licenses and the Nordic Experience, 2010, op. Cit., P. 472 f .; Strowel, The European “Extended Collective Licensing” Model, 2011, op. Cit., P. 666.
  4. ↑ On the fragile exclusivity of some ancillary copyrights cf. Michael Lehmann, Exclusive Rights, Remuneration Claims and Mandatory Minimum User Rights in a Digital World , in: Ulrich Loewenheim (Ed.), Copyright in the Information Age. Festschrift for Wilhelm Nordemann , Beck, Munich 2004, ISBN 3-406-51683-1 , pp. 43–50.
  5. ↑ For a brief historical outline, cf. Daniel J. Gervais, Collective Management of Copyright: Theory and Practice in the Digital Age, in: ders. (Ed.): Collective Management of Copyright and Related Rights, 3rd edition, Kluwer, Alphen aan den Rijn 2016, ISBN 978 -90-411-5441-5 , pp. 3-30, here pp. 5-7; Catharina Maracke, The Copyright Administration Act of 1965 , in: Thomas Dreier and Reto M. Hilty (eds.), From magnetic tape to social media. Festschrift 50 Years of Copyright Law (UrhG) , Beck, Munich 2015, ISBN 978-3-406-68519-4 , pp. 41–52, here pp. 42–46.
  6. ↑ For example the case with the right of cable retransmission according to Section 20b of the German Copyright Act (UrhG), where Section 50 (1) sentence 1 of the Collecting Societies Act (VGG) for cable retransmission rights that have not been transferred to a collecting society feigns the right of administration by a collecting society . On this legislative methodology cf. for example Tobias Holzmüller and Robert Staats, collecting societies and digitization , in: Thomas Dreier and Reto M. Hilty (eds.), From magnetic tape to social media. Festschrift 50 Years of Copyright Law (UrhG) , Beck, Munich 2015, ISBN 978-3-406-68519-4 , pp. 207–220, here pp. 212 f .; Critical Schack, Copyright and Copyright Contract Law, 8th edition 2017, Rn. 482.
  7. ↑ Cf. for example Olaf Hohlefelder, Collectivization and Opt-Out - The new basic norm of copyright? Models in comparison: Google Books Settlement, §1371l UrhG, Orphan Works Directive and the authority of VG Wort , Universitätsverlag Göttingen, Göttingen 2016, ISBN 978-3-86395-223-5 (also free of charge online via Universitätsverlag Göttingen ), p. 206 .
  8. ↑ So also the terminology of the German legislator in the official heading to § 50 VGG.
  9. ↑ See Koskinen-Olsson / Sigurdardóttir, Collective Management in the Nordic Countries, 2016, op.cit., P. 249.
  10. ↑ See Riis / Schovsbo, Extended Collective Licenses and the Nordic Experience, 2010, op.cit., P. 482.
  11. ↑ See still in § 30. Cf. Foged, Danish licenses for Europe, 2015, op.cit ., P. 17.
  12. ↑ See Riis / Schovsbo, Extended collective licenses in action, 2012, op.cit ., P. 930.
  13. ↑ See Foged, Danish licenses for Europe, 2015, op.cit ., P. 18.
  14. ↑ Cf. Riis / Schovsbo, Extended collective licenses in action, 2012, op.cit ., Pp. 935 ff. Note that no recourse is made here to the nationality of the author.
  15. ↑ See Foged, Danish licenses for Europe, 2015, op. Cit., P. 18; Riis / Schovsbo, Extended collective licenses in action, 2012, op.cit ., P. 931 f. The German terminology is largely based on the German translation of the Danish Copyright Act in the version of the announcement of September 29, 1998 in Möhring / Schulze, Sources of Copyright, as of: 56th EL 2005, Denmark / II. The following is based on the Danish Copyright Act as amended by Amending Act No. 321 of April 5, 2016, cf. Civilstyrelsen / retsinformation.dk, Bekendtgørelse af lov om ophavsret , accessed on August 31, 2016.
  16. ↑ This only covers reproduction, not making it publicly available. The provision enables so-called electronic copies to be sent to library users on request, but not the free provision of digital copies in the library or even on the Internet. See also Jørgen Blomqvist, Denmark, in: Silke von Lewinski (Hrsg.), Copyright Throughout the World, status: 11/2015 (via Westlaw), § 13:22 (e).
  17. ↑ a b For the motives for these regulations, which were only added in 2014, cf. Foged, Danish licenses for Europe, 2015, op.cit ., P. 16 f.
  18. ↑ See Foged, Danish licenses for Europe, 2015, op.cit ., P. 18.
  19. ↑ See Foged, Danish licenses for Europe, 2015, op. Cit., P. 18; Jørgen Blomqvist, Denmark, in: Silke von Lewinski (Ed.), Copyright Throughout the World, Status: 11/2015 (via Westlaw), § 13:22 (t).
  20. ↑ See Riis / Schovsbo, Extended Collective Licenses and the Nordic Experience, 2010, op.cit., P. 476 f.
  21. ↑ See Foged, Danish licenses for Europe, 2015, op.cit ., P. 18.
  22. ↑ See Foged, Danish licenses for Europe, 2015, op.cit ., P. 18.
  23. ↑ Foged, Danish licenses for Europe, 2015, op.cit ., P. 16.
  24. ↑ See Foged, Danish licenses for Europe, 2015, op.cit ., P. 18.
  25. ↑ See there Art. 9; see. Dreier in Walter / von Lewinski, European Copyright Law, 2010, § 7.9.1 ff. And on the Danish implementation Foged, Danish licenses for Europe, 2015, op. Cit., P. 19; Koskinen-Olsson / Sigurdardóttir, Collective Management in the Nordic Countries, 2016, op.cit., P. 259.