European cross-border rights clearance

Lucie Guibault and Manon Oostveen

2nd Europeana Workshop, 14 June 2013

Institute for Information Law

Contents

Regulatory instruments Cross-border regimes Compatibility Workflow of cultural heritage institutions Conclusion

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Research question

Will the work of cultural heritage institutions become easier by the introduction of the MoU, the Orphan Works Directive and the Directive on collective management and multi-territorial licensing of online musical works?

Are the cross-border provisions of the three instruments compatible with each other?

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The Instruments

Memorandum of Understanding (MoU) on out-of-commerce works

Directive 2012/28/EU on certain permitted uses of orphan works

Proposal for a directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses

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MoU

Rights clearance based on extended collective licensing

Scope: multi-territory mono-repertoire (extended effect limited to national repertoire)

No direct extra-territorial effect Possibility to limit scope of extended effect in

types of uses and territory

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Orphan Works Directive

Article 4

Mutual recognition of orphan work status

A work or phonogram which is considered an orphan work according to Article 2 in a Member State shall be considered an orphan work in all Member States. That work or phonogram may be used and accessed in accordance with this Directive in all Member States. This also applies to works and phonograms referred to in Article 2(2) in so far as the rights of the non- identified or non-located rightholders are concerned.

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Draft Directive on Multi-territorial licensing

Extra-territorial effect based on ‘passport’ system One CMO gives mandate of representation

to another CMO Likelihood of concentration of the market to a

few ‘super’ CMOs Reciprocal agreements between CMOs still

necessary

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Compatibility Issues

Form and scope of implementation of instruments still uncertain

Potential for incompatibility between regimes at national and cross-border level because of possible co-existence of ECL for books/articles and Orphan Works status

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Workflow of a CHI

No single clear and comprehensive system to clear rights

Potential problems of

Restrictions

Fragmentation

Implementation

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Solution?

Conclusion of agreements between CMOs and CHIs for cross-border use of material

Problem: not all sectors of copyright are equally organized to allow representative agreements to be concluded

Other solutions????????

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Thank you very much!

For more informationLucie Guibault

L.Guibault@uva.nlor

Manon Oostveenmanon.oostveen@student.uva.nl

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