Cross-border Extended Collective Licensing – a solution to online dissemination ofEurope’s audiovisual heritage?

EUscreen International Conference on Use and Creativity

15 September 2011

PhD candidate in intellectual property law, Johan Axhamn, Faculty of Law, Stockholm University

Outline

• Content stored in TV audiovisual archives

• Nordic Extended Collective Licensing Model

• Example: Extended Collective License Agreement between the Danish Broadcasting Corporation and several Danish Collective Management Organisations

• Cross-border issues?

Content stored in audiovisual archives

• Depending on the type of content, it may be protected by copyright

– Authors’ rights• Scriptwriters, photographers, directors…

– Performers’ rights• Actors, singers, musicians, artists…

– Sound- and filmproducers’ rights

– Broadcasters’ rights

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Digitization and online dissemination

• Digitization = reproduction

• Online dissemination = communication to the public / making available on demand

• Term of protection– Literary and artistic works: 70 years p.m.a– Performers and producers: 50 years from fixation (i.e. recording)– Broadcasters: 50 years after the first transmission of a broadcast

• “In copyright” = permission / prior consent from the rightholder

i. verifying copyright status of the item, taking into account several layers of rights

i. identifying and locating right holders of protected items

– Who is the rightholder?

ii. contacting right holders and obtaining permission

iii. negotiating the extent and conditions of use

iv. documentation of the steps above 5

CLEARING RIGHTS FOR DIGITIZATION AND ONLINE

DISSEMINATION OF CONTENT STORED IN

AUDIOVISIAL ARCHIVES (I)

CHARACTERISTICS OF DIGITIZATION AND ONLINE

DISSEMINATION OF CONTENT STORED IN

AUDIOVISUAL ARCHIVES (II)

• Many copyright protected items• Many right holders• Mass-use: Many items are to be digitised and

disseminated online (in a relatively short period of time).• Many works are orphan, i.e. it is difficult to identify and/or

locate the right holder

• In sum: very high transaction costs and therefore unsuitable for individual rights management

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IS (ORDINARY) COLLECTIVE RIGHTS MANAGEMENT

A SOLUTION?

• (Ordinary) collective management works well as long as all right holders are represented directly or indirectly by a Collective Management Organisation– Outsiders?

• Unrepresented authors, performers etc.• Orphan works

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ALTERNATIVES OR SUPPLEMENTS TO ORDINARY

COLLECTIVE RIGHTS MANAGEMENT TO SOLVE THE

PROBLEM WITH OUTSIDERS’ RIGHTS

• Indemnity agreements

• Compulsory license (managed collectively)

• Extended collective licensing (ECL)

• ...

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EXTENDED COLLECTIVE LICENSING (I)

• A representative Collective Management Organisation and a user conclude an agreement on the basis of free negotiations– The CMO has to be representative in its field

• The agreement is made legally binding on outsiders– “extended effect”

• The user may legally use all materials within the specific field without having to meet individual claims by outsiders or criminal sanctions– “true extended effect”

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EXTENDED COLLECTIVE LICENSING (II)

• Outsiders have a right to individual remuneration

• Outsiders have a right to prohibit use of their works– “Opt out”

• Presupposes excellent structure and culture of collective management

– e.g. high representativity… transparency... good

governance…

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Extended Collective License Agreement between the Danish Broadcasting Corporation and several Danish Collective Management Organisations

• Digitization and online dissemination of content in the Danish Broadcasting Corporation’s archive– “Danish Broadcasting Corporation’s own productions”

By a Letter of Attorney the umbrella

organisation Copydan has the power to

represent 26 Danish Collective Management

Organisations (and their members)

• Animationssammenslutningen

• Biledkunsternes Forbund

• Dansk Artist Forbund

• Dansk Filmfotograf Forbund

• Danske Filminstruktorer

• Dansk Forfattereforening

• Den Danske Forlaeggerforening

• Dansk Metal

• Dansk Musiker Forbund

• …

The Danish Broadcasting Corporation’s archive

• 473 000 hours of radio broadcasts

• 68 803 hours of television broadcasts

• 28 400 hours of made-for-tv-movies

• Online dissemination ”on demand” not covered by previous agreements

• Enormous transction costs related to clearing rights on an individual basis

Scope of ECL agreement

• Making available online on demand

• Streaming – not permanent download

• Content broadcast prior to 1 January 2007– 6 year hold-back– 10 year hold-back for dramatic works

• Subordinate to other agreements that Danish Broadcasting Corporation may have concluded

THE CROSS-BORDER (MULTI-TERRITORY) PROBLEM

• Copyright is territorial, i.e. permission to use (license) has to be cleared with right holders in every country (territory) where use occurs– Principle of lex loci protectionis

• It appears that the act of communication to the public (online dissemination) of a copyright protected work takes place in all the territories where the communication can be received.– i.e. a country of reception principle

• Traditionally, national CMOs have issued licenses only for their own territory– Multi-repertoire and mono-territory licenses

– The ECL model is based on the territoriality of copyright15

POSSIBLE SOLUTIONS TO THE MULTI-

REPERTOIRE MULTI-TERRITORY PROBLEM

• Ask of the cultural institutions to clear the rights with CMOs in every country of exploitation (i.e. destination)

• Introduce a country of transmission principle

• Promote multi-territory licensing

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Conclusions

• The ECL model is feasible in fields of use characterised by mass-use

•The ECL model presupposes existence of excellent CMO structure and culture

•Solution to the cross-border issue: most possibly a legislative EU intervention

Research carried out as part of a

EuropeanaConnect study on a licensing

framework for Europeana

• 15 November 2010 – 15 May 2011

• Visiting researcher at the Institute for Information Law (IViR) at the University of Amsterdam

• Study: Cross-border extended collective licensing: a solution to online dissemination of Europe’s cultural heritage?

– http://www.ivir.nl/publicaties/guibault/ECL_Europeana_final_report092011.pdf

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Contact information

Johan Axhamn

Faculty of Law, Stockholm University

johan.axhamn(a)juridicum.su.se

Direct: +46 8 16 17 23