Presentation by Lucie Guibault, Assistant professor, Institute for Information Law at the Europeana Connect ECL workshop in Luxembourg

1. ECL provisions in relation to international conventions
and EU law
Lucie Guibault, Assistant professor, Institute for
Information Law

2. International conventions
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3. International Conventions
¢ Berne Convention for the Protection of Literary and
Artistic Works
¢ WIPO Copyright Treaty
¢ Rome Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting
Organisations
¢ WIPO Performances and Phonograms Treaty
(WPPT)
¢ Agreement on Trade-Related Aspects of Intellectual
Property Rights
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4. National treatment/ Minimum protection
¢ Art 5(1) BC: Authors shall enjoy, (…) in countries of
the Union other than the country of origin, the rights
which their respective laws do now or may hereafter
grant to their nationals, as well as the rights specially
granted by this Convention.
£ No contradiction with ECL provisions which all
include the principle of equal treatment
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5. Prohibition on formalities
¢ Art 5(2) BC: The enjoyment and the exercise of
these rights shall not be subject to any formality.
£ The possibility to “opt out” from the ECL scheme
does not affect the “enjoyment” or the “exercise”.
£ The right is exercised in any event, either collectively
as statutory default rule or individually if the right
holder “opts out”.
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6. Possibility to introduce limitations and
exceptions to the exclusive rights
¢ The three-step test
£ BC art. 9(2), WCT art. 10(1) and 10(2), WPPT art. 16(2), and TRIPS
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1. An exception or limitation may be imposed in national legislation
in certain special cases,
2. that do not conflict with a normal exploitation of the work (or
other subject matter), and
3. do not unreasonably prejudice the legitimate interests of the
author/rightsholder.
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7. ECLs and the three step test
¢ Are ECL provisions and the related extended effect of
collective agreements on outsiders’ rights limitations on the
exclusive rights?
¢ Members are exercising their rights; any effect of limitation
only applies to outsiders
¢ The ECL provisions and related agreements are
heterogeneous.
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8. “An exception or limitation may be
imposed in national legislation in certain
special cases,”
¢ The first step demands that limitations are narrow and
clearly defined
£ Emphasis should be put on the scope and contents of
the ECL agreement
˜ which have been negotiated by a representative CMO
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9. ” that do not conflict with a normal exploitation of
the work (or other subject matter)”
¢ The second step aims at prohibiting limitations which come
into economic competition with the authors/right holders
exploitation of their rights
£ ECLs aims to solve the problem of market failure with non members:
such areas cannot reasonably constitute areas of normal exploitation
£ Emphasis should be put on the scope and contents of the ECL
agreement
˜ which have been negotiated by a representative CMO
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10. ” do not unreasonably prejudice the legitimate
interests of the author/rightsholder”
¢ The third step aims at mitigating the impact of
limitations on the interests of rightsholders
£ Payment of remuneration is accepted form of mitigation
£ ECL includes safeguards for outsiders
˜ Opt-out (?)
˜ Equal treatment
˜ Right to individual remuneration
£ ECLs are based on free negotiations (?)
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11. EU law
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12. Limitations and exceptions at EU level
¢ Article 5 of Directive 2001/29/EC (Infosoc) includes a
closed list of permissable limitations and exceptions
to the exclusive rights
¢ Article 5.5 lays down the three-step test
¢ Preamble 18 of Directive 2001/29/EC: “This Directive
is without prejudice to the arrangements in the
Member States concerning the management of
rights such as extended collective licences.”
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13. Article 3.2 of Directive 93/83/EEC (Sat/Cab)
¢ Article 3.2 of the Sat/Cab directive: “A member state may
provide that collective agreements between a collecting
society and a broadcasting organization concerning a given
category of works may be extended to right holders of the
same category who are not represented by the collecting
society, provided that: the communication to the public by
satellite simulcasts a territorial broadcast by the same broadcaster,
and the unrepresented right holder 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.”
£ Extension effect of a collective agreement within a given field
£ Possibility to opt out
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14. Coherence of the ECL model with EU law
¢ Reasonably ECLs are outside the scope of the
“closed list” of exceptions and limitations in
article 5 of the Infosoc directive as long as they
fulfill the general criteria for ECLs as provided
in article 3.2 of the Sat/Cab directive
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15. Non-discrimination
¢ Article 18 TFEU: “Within the scope of application of the
Treaties, and without prejudice to any special provisions
contained therein, any discrimination on grounds of
nationality shall be prohibited.”
£ Principle of equal treatment in the ECL provisions
£ The CMO shall represent “a substantial part of
authors of works used in the relevant territory”
˜ Prior wording: “a substantial number of national authors..”
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16. Conclusion
¢ ECL agreements must comply with the three
step test
£ More leeway than compulsory licenses
¢ ECLs must, to be regarded as ECLs, fulfill the
general criteria in article 3.2 of the Sat/Cab
directive
¢ ECLs are not in contradiction with the
prohibition on formalities and the principles of
national treatment and anti-discrimination
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