Extended Collective Licence (ECL)

 

The legal technique called Extended Collective Licence (ECL) is a support mechanism for freely negotiated non-exclusive licensing agreements between an organisation representing rightholders and users in certain sectors for specific uses. Once the voluntary agreement is achieved and comes into force, the law extends the voluntarily negotiated agreement to also cover the works of other rightholders that are not members of or have not mandated the organisation. These may have the option to opt out of the agreement, or the CMO (for instance the RRO) issues the licence based on mandates granted on a non-exclusive basis.

The elements of an extended licence system are the following (see: J. Liedes, H. Wager, T. Koskinen and S. Lahtinen, Extended Collective Licence, leaflet prepared by the Ministry of Education, Finland (June 2001)):

1. The organisation and the user conclude an agreement on the basis of free negotiations.

2. The organisation has to be representative in its field.

3. The agreement is by law made binding on non-represented rightholders.

4. The user may legally use all materials without needing to meet individual claims.

5. Non-represented rightholders have a right to individual remuneration.

6. Non-represented rightholders have in many cases a right to prohibit the use of their works.

Licensing of educational institutions on the basis of an ECL is, for instance, in use in the Nordic countries. ECL schemes involve government authorisation of CMOs to negotiate licenses for a particular class of works or a particular class of uses. Once the designated CMO freely negotiates a licence for a particular class of works with a particular class of users, that license is extended by statute and/or by regulation to all of the works in that class, including works owned by persons who are not members of the CMO. The licensed users then pay royalties to the CMO, which are distributed to copyright owners. In some instances, copyright owners can “opt out” of the ECL scheme.

The principle of CMOs representing non-members can also be found in the EU Satellite and Cable Directive 93/83/EEC(http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31993L0083:EN:HTML). The Directive provides that authorisation regarding non-members is to be dealt with collectively. Article 3.2 of the Directive outlines the following criteria for collective management of rights, which is allowed under the directive.It states that:

"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."

The ECL has recently become much referred to by governments worldwide.

ECL Legislation and some projects / licence agreements

ECL in the Nordic countries

The first extended collective licensing (ECL) laws were established in Denmark, Finland, Iceland, Norway and Sweden in the 1960s.

Denmark

Legislation

When the general extended collective license provision in Article 50(2) came into force in 2008, a general possibility to conclude licence agreements with extend effect (represented as well as non-represented) was added to the law. The provision enables a user to negotiate a licence agreement with an organisation representing a substantial number of rightholders in the specific field, and if parties so decide, they can apply for the extension effect to the agreement that they have negotiated. The rightholders have the option to issue an individual prohibition on the use of their works. The licence agreement can be limited to only covering authors’ rights.

Article 50(2) enables licensing of digitization of a mass of works including orphan works. An important condition when using Article 50(2) is that the Ministry of Culture has to issue an approval. Contrary to the approvals obtained with respect to the specific ECL provisions in the Copyright Act, the approvals issued by the Ministry in relation to Article 50(2) are licence agreement-specific.

Article 50(2) reads:

“Extended collective license may also be invoked by users who, within a specified field, have made an agreement on the exploitation of works with an organisation comprising a substantial number of authors of a certain type of works which are used in Denmark within the specified field. However, this does not apply, if the author has issued a prohibition against use of his work in relation to any of the contracting parties.”

The Ministry of Culture – link to the Danish Copyright Act (in English):

http://kum.dk/uploads/tx_templavoila/Lovbekendtgorelse%20af%20ophavsretsloven%202010%20engelsk.pdf

The Ministry of Culture – link to all extended collective management approvals (in Danish only): http://kum.dk/Kulturpolitik/Ophavsret/Godkendelser/

Copydan Writing - Information to rightholders about the possibility to opting out of licence agreements based on the general ECL in article 50 (2) (in Danish only):

http://tekstognode.dk/rettighedshaver/projekter.aspx

Examples of licence agreements

All the licence agreements allowing digitisation and making available to the public that the Danish RRO, Copydan Writing, has already entered into can be categorised as small scale digitisation projects. Copydan Writing has entered into eight different licence agreements on the basis of Article 50(2). Some examples:

Danish Biographical Dictionary (DBD):

Site: http://www.denstoredanske.dk/Kunst_og_kultur/Bog-_og_biblioteksv%C3%A6sen/Bibliografi_og_biografi/Dansk_Biografisk_Leksikon

KRITIK

Site: http://www.kritik.gyldendal.dk/

Dictionary of old Norse prose:

Link: http://onp.ku.dk/english/

Mediehuset Ingeniøren A/S (The media house Engineer):

Site: http://ing.dk/avis/2014/12

Sweden

Legislation

Sweden enacted a “general” ECL regime in 2013 that allows a user to digitise published works and make them available, through the Internet or otherwise, so long as a CMO that represents a significant number of copyright owners has voluntarily negotiated an agreement with the user or a group to which the user belongs.

The Swedish ECL regime for mass digitisation, set forth in article 42 h of the Act on Copyright in Literary and Artistic Works, took effect in November 2013. An unofficial English translation of the Swedish law is available here: http://www.regeringen.se/content/1/c6/01/22/48/5956fbbf.pdf

The wording in article 42 h is as follows:

Article 42 h. Anyone is entitled to, within a specifically delimited area of exploitation, make copies of works or make available to the public works that have been made public also in cases other than those referred to in Articles 42 b – 42 g if an extended collective license applies pursuant to Article 42 a and it is a prerequisite for the exploitation that the user through the agreement with the organisation is conferred a right to exploit works of the kind referred to in the agreement despite the fact that the authors of the works are not represented by the organisation.

The provisions of the first Paragraph do not apply if the author has filed with any of the contracting parties a prohibition against the reproduction or the making available or if there are otherwise specific reasons to assume that the author objects to the exploitation. (Act 2013:691).

Norway

Legislation

The penultimate version of the Norwegian Copyright Act exists in English translation. The relevant sections 13, 16a and 36 et seq., Norwegian Copyright Act, are unaffected by the one later change that is not yet available in English:

http://www.kopinor.no/en/copyright/copyright-act

Art. 13, 16a and 36 in English translation read as follows:

Ҥ 13: The use of works in educational activities

Teachers and pupils may make fixations of their own performances of works for educational use. Such fixations shall not be used for other purposes.

The King may decide that schools and other educational institutions may make fixations of broadcasts for time-deferred use free of charge.

§ 13a: Compulsory licence for the use of works in educational use

Copies of a published work may be made for use in a public examination. The originator of the work shall be entitled to remuneration.

§ 13b: Extended collective licence for the use of works in educational activities

Copies of a published work can be made for use in own educational activities if the conditions for an extended collective licence pursuant to section 36 first paragraph are fulfilled. Fixations of broadcasts can be made on the same conditions. This does however not apply if the broadcast consists of a cinematographic work which must be perceived as also intended for uses other than presentation via television, unless only minor parts of the work are used in the broadcast.

Fixation centres which are approved by the Ministry may, for use in educational activities, make fixations as specified in the first paragraph, if the centre fulfils the conditions for an extended collective licence pursuant to section 36, first paragraph.

Copies made pursuant to the first and second paragraphs may only be used in educational activities covered by the agreement under section 36.

The King will issue regulations concerning the storage and use of fixations pursuant to the first and second paragraphs.

§ 16a

Archives, libraries and museums as described in section 16 first paragraph can make copies of published works in the collections and make such works available to the public if the conditions of the extended collective licence pursuant to section 36 first paragraph are fulfilled.

§ 36
When there is an agreement with an organization referred to in section 38 a which allows such use of a work as is specified in sections 13b, 14, 16a, 17b, 30, 32 and 34, a user who is covered by the agreement shall, in respect of rightholders who are not so covered, have the right to use in the same field and in the same manner works of the same kind as those to which the agreement (extended collective licence) applies. The provision shall only apply to use in accordance with the terms of the agreement. The provision shall not apply in relation to the rights that broadcasting organizations hold in their own broadcasts.

As regards the retransmission of works pursuant to section 34, where negotiations on an agreement as referred to in the first and second sentences of the first paragraph, or negotiations with a broadcasting organization concerning an agreement, are refused or no agreement has been entered into within six months after the commencement of negotiations, each of the parties may demand that permission and conditions for retransmission be determined in a binding manner by a commission pursuant to section 35, second paragraph. The provisions of the first paragraph shall apply correspondingly in such cases.

The “Bookshelf” service

Through the ‘Bookshelf’ service, the Norwegian National Library makes available Norwegian books published up to 2000. This has been possible due to an agreement with Kopinor, the Norwegian RRO, representing publishers, authors and other rightholders. Information in English is available at: http://www.kopinor.no/en/agreements/national-library . The actual agreement is available in English at: http://www.kopinor.no/en/agreements/national-library/documents/bookshelf-contract

Finland

Legislation

On 15 November 2013, amendments to the Finnish Copyright Act (404/1961) came into force. A new section 25(g) is intended to facilitate the re-utilisation of archives in mass use since individual agreements are often impossible to conclude afterwards or would require excessive investments; the materials and right-holders are numerous. The amendments to the Finnish Copyright Act include the possibility of digitisation and re-utilisation of archives for publishers (section 16(d) on use of archives by the National Library of Finland; e.g., Finnish newspapers are digitised for online use).

The provisions still need to be accompanied by negotiations and licensing. According to section 26 of the Copyright Act, provisions regarding extended collective licences 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 which represents, in a given field, numerous authors of works used in Finland:

“Section 26 (14.10.2005/821)

(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 which represents, in a given field, numerous authors of works used in Finland. A licensee authorised by virtue of extended collective licence may, under terms determined in the licence, use a work in the same field whose author the organisation does not represent.”

Iceland

Legislation

The Icelandic Copyright Act states in its Article 15a (1):

“Anyone having obtained permission to photocopy works or reproduce them in a similar fashion for business purposes by agreement with the organisations of copyright holders, who act in the interests of a significant portion of Icelandic authors to this end and have received formal legal recognition from the Ministry of Education, Science and Culture for this purpose, shall also be entitled to reproduce the works in the same fashion, without requiring the express consent of the author in each case, even though the author is not a member of the organisation. Each individual author can, by a written interdict, prohibit the reproduction of his works in accordance with this paragraph.”

A link to the English version of the Copyright Act is here:

http://eng.menntamalaraduneyti.is/media/MRN-pdf/he-Copyright-Act.pdf

 

ECL in other countries: some examples

Malawi

Legislation

The Copyright law in Malawipermits, under certain conditions, reproduction by educational establishments of literary, dramatic, musical and artistic works, which have already been lawfully made available to the public,

“provided that such reproduction, the number of copies made and the use thereof are limited to the needs of the regular activities of the body reproducing the work, and neither conflict with the normal uses of the work nor unreasonably prejudice the legitimate interests of the author” (Section 10(f) of the Malawi Copyright Act).

Multiple and other copies made for classroom use would generally have to be authorised through a licence which, in accordance with Section 41 et seq. of the Copyright Act, can be signed by the RRO (COSOMA in Malawi) on the basis of an ECL.

U.K.

Draft legislation

The U.K. Government has proposed to introduce the ECL into the U.K. Copyright Law. The final version of the ECL Regulations can be expected in 2014.  

The U.K. Government response to the technical consultation on draft secondary legislation for extended collective licensing (ECL) schemes (48 pages) can be accessed here. This new ECL policy was developed to help simplify licensing, with possible by-products of reduced transaction costs, improved legal offers, and enhanced confidence in the U.K.’s copyright system. ECL schemes will also allow CMOs that run de facto ECL schemes to operate on a legal footing, giving legal certainty to both licensor and licensee.

On 24 June 2014, draft secondary legislation to be known as The Copyright and Rights in Performance (Extended Collective Licensing) Regulations 2014, was laid before Parliament.

The Regulations are available here: http://www.legislation.gov.uk/ukdsi/2014/9780111116890

The ECL provision reads as follows:

“Authorisation to operate an Extended Collective Licensing Scheme

4.  (1)  The Secretary of State may, if he considers it reasonable in the circumstances to do so, authorise a relevant licensing body to operate an Extended Collective Licensing Scheme after receiving an application made in accordance with regulation 5 and completion of the procedure in regulations 6 to 8.

(2) An authorisation must specify—

(a)the types of relevant work to which it applies; and

(b)the permitted use.

(3) A relevant licensing body authorised under paragraph (1) may license all rights within the scope of the Extended Collective Licensing Scheme provided that the relevant licensing body—

(a)grants scheme licences in accordance with the terms and conditions notified to the Secretary of State under regulation 5(p);

(b)carries out its licensing activities in accordance with its code of practice;

(c)complies with the requirements of these Regulations; and

(d)complies with the conditions of its authorisation.

(4) The Secretary of State may only grant an authorisation to a relevant licensing body if the Secretary of State is satisfied that—

(a)at the time of the authorisation, the relevant licensing body licenses by way of collective licence relevant works of the type which are to be the subject of the proposed Extended Collective Licensing Scheme;

(b)the relevant licensing body’s representation in the type of relevant works which are to be the subject of the proposed Extended Collective Licensing Scheme is significant;

(c)the code of practice of the relevant licensing body is consistent with the specified criteria including the criteria concerning the protection of non-member right holders;

(d)the opt out arrangements, including those for multiple works, are adequate to protect the interests of right holders;

(e)the arrangements for publicising the scheme, for contacting non–member right holders in order to distribute the net licence fees and for distributing any net licence fees which remain undistributed are appropriate for the proposed scheme, having regard to the interests of non-member right holders; and

(f)the relevant licensing body has obtained the required consent to the proposed Extended Collective Licensing Scheme.

(5) An authorisation is personal to the relevant licensing body and the authorisation may not be transferred to any other person or body.

(6) An authorisation continues in force until the earlier of the expiration of five years from the date of the grant of the authorisation or until revocation or cancellation in accordance with regulation 14 or 15.”

For further information on the U.K. system, see U.K. Intellectual Property Office, Extending the Benefits of Collective Licensing: Consultation on the U.K.’s New Extended Collective Licensing System (2013), available at http://www.ipo.gov.uk/consult-2013-ecl.pdf (describing process for approving regulations to implement ECL regime); Enterprise and Regulatory Reform Act 2013, Part 6, Section 77, available at http://www.legislation.gov.uk/ukpga/2013/24/contents/enacted (setting out new statutory provisions establishing ECL regime in U.K.).

China

Draft legislation

In June 2014, the Chinese Legislative Affairs Office of the State Council has decided to promulgate for public comments the full texts of the Copyright Law of the People's Republic of China (Revised Draft for Examination) submitted by the National Copyright Administration to the State Council for examination and its revision notes.

From the ECL clause of the newly drafted amendment of China’s Copyright Act, a CMO can apply to manage the extended collective license only when it is able to show its recruitment of a substantial number of rightholders. The new proposed Article 63 creates an ECL scheme for musical and audio visual works for karaoke bars:

“Article 63      Where an organization for collective administration of copyright can represent the interests of relevant right owners throughout the country as authorized by the right owners, it may exercise the copyright or related rights on behalf of all the right owners when their published musical or audio & video works are disseminated to the public through self-service karaoke systems and when their works are otherwise used, except where the right owners have declared in writing that the collective administration is not authorized:

An organization for collective administration of copyright shall fairly treat all right owners in the transfer of relevant royalties.”

Literature on ECL:

Tarja Koskinen-Olsson, Collective Management in the Nordic Countries, Ed. Daniel Gervais, Collective Management of Copyright and Related Rights, Second Edition, 2010

Henry Olsson, Ministry of Justice, Committee of Inquiry on the Copyright Law, Unofficial English Translation, Chapter 4. On Extended Collective Licenses, etc., September 2010

Ye Jiang,Changing Tides of Collective Licensing in China, 21 Michigan State International Law Review (2013): The article examines the reform of collective copyright licensing in China, incl. an ECL system as affirmed by Chinese legislature.

Gervais, Daniel (June 2003). "Application of an Extended Collective Licensing Regime in Canada: Principles and Issues Relating to Implementation" (pdf). Study prepared for the Department of Canadian Heritage. University of Ottawa. p. 5.

Olsson, Henry (10 March 2010). "The Extended Collective License As Applied in the Nordic Countries". Presentation at Kopinor 25th Anniversary International Symposium May 2005. Kopinor. Retrieved 14 November 2010

Olli Vilanka, Rough Justice or Zero Tolerance? - Reassessing the Nature of Copyright in Light of Collective Licensing (Part 1),https://helda.helsinki.fi/bitstream/handle/10227/661/vilanka.pdf?sequence=3

Introduction to Collective Management of Copyright and Related Rights, Document prepared by the International Bureau of WIPO. Available at: http://www.uatm.com.ua/laws/int/Introduction%20to%20Collective%20Management%20of%20Copyright%20and%20Related%20Rights.pdf

. 12