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  • From: Tarmo Toikkanen <tarmo.toikkanen AT aalto.fi>
  • To: Fátima São Simão <fatimasss AT gmail.com>, Timothy Vollmer <tvol AT creativecommons.org>
  • Cc: cc-europe <cc-europe AT lists.ibiblio.org>
  • Subject: Re: [CC-Europe] looking for info on extended collective licensing schemes in Europe
  • Date: Mon, 7 Sep 2015 10:31:09 +0300

Some notes from Finland:

The Finnish copyright agencies often make contracts with artists and require exclusive rights. A recent review made clear, that such exclusive rights (which will prevent CC licensing) are not required by Finnish law or are even required for the agencies to perform their work.

As this has become clear, and an increasingly problematic for artists to build their online presences, things are changing. Recently the music artists' agency in Finland (Teosto) has allowed individual artists (after a written request) to self-license some of their works for non-profit use and limited for-profit use.

It seems in many European countries collective license schemes are in place, but the contracts the agencies make with artists are too restrictive (requiring exclusive rights to all past and future works).

Many legal cases have concluded that preventing the artist from managing their works may be considered to be misuse of a dominant market power. The general gist seems to be that requiring exclusive rights should have exceptional and well-founded grounds. An agency should not pose restrictions on its author customers that are not absolutely necessary. Some examples:

EU:
Ireland:

Irish Competition Authority, Decision No. 326 of 18 May 1994, Notification No. CA/2/91E – Performing Right Society and individual creators/publishers (Assignment of Copyright), para. 81; Decision No. 445 of 15 December 1995, Notification No. C/2/95 – Irish Music Rights Organisation/Writers, Notification No. CA/3/95 – Irish Music Rights Organisation/Publishers (Non Corporate); Notification No. CA/4/95 – Irish Music Rights Organisation/Publishers (Limited Company), para. 37.

Poland:

UOKiK, Decision of 16 July 2004, Case RWA‐21/2004, Annual Report 2006, p. 20. 860
and
CCCP, Decision of 9 January 2006, Case XVII Ama 84/04, Annual Report 2006, p. 20.

US:
In the US, the ASCAP consent decree explicitly prevents ASCAP from claiming exclusive rights
from right‐holders. ( Para. IV. A. of the ASCAP Consent Decree, supra n. 737)



On 04/09/15 02:01, Fátima São Simão wrote:
Hi Tim,

I've been researching about this recently and came across a couple of very interesting articles on the subject:

- Economics of Copyright Collecting Societies and Digital Rights: Is There a Case for a Centralised Digital Copyright Exchange? (about a similar initiative going on in the UK): http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2216165

- Competition Policy, Patent Pools and Copyright Collectives: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2024560

You can find more here: http://www.serci.org/rerci.html

I hope this helps.

Best,
Fátima



On 2 September 2015 at 23:17, Timothy Vollmer <tvol AT creativecommons.org> wrote:
Hi all:

Looking for some information from you the operation of extended collective licensing in Europe. Can you help? 

The U.S. Copyright Office is soliciting comments on a plan to introduce extended collecting licensing for certain mass digitization activities. Several library associations and NGOs (including CC and CC USA) are planning on responding to the request for information. The Copyright Office has apparently concluded that the introduction of extended collective licensing in U.S. law would help "to facilitate the work of those who wish to digitize and provide full access to certain collections of books, photographs, or other materials for nonprofit educational or research purposes."

Many of us think that those conducting mass digitization in the U.S. already have a solid basis for digitizing works under fair use--supported by recent case law. It's less clear that "providing full access to certain collections" would be covered under fair use, although the tempering of the use to "nonprofit educational or research purposes" seems leans in the direction of activities covered under fair use anyway. 

The Copyright Office said it wants to hear about the experience of ECL schemes "in place or being discussed in other countries." So we are asking around--specifically in Europe because we know there are some ECL frameworks already in place. 

We've already heard from the Dutch (thanks Lucie and Paul!). As I understand it neither the InfoSoc nor the Orphan Works Directive provide an adequate legal framework with which to adequately entertain mass digitization and acts of making available in this context. The takeaway is that without being able to rely on an exception, then the only reasonable option is to explore extended collective licensing. 

Is this your experience? What is your experience with the ECLs? Are they effective for making available some types of collections over others? How are CC licensed works handled within the scheme, if at all? 

Thanks so much,

timothy

cc: Diane Peters, Meredith Jacob

 


--
Timothy Vollmer
Public Policy Manager, Creative Commons
Get Creative Commons Updates http://bit.ly/commonsnews

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-- 
Tarmo Toikkanen
researcher, tarmo.toikkanen AT aalto.fi
Learning Environments research group, http://legroup.aalto.fi
Creative Commons Finland, http://creativecommons.fi
Aalto University, http://aalto.fi



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