THE EBU PROPOSAL ON ECL + APPLICABLE LAWHEIJO RUIJSENAARSHEAD OF INTELLECTUAL PROPERTYEUROPEAN BROADCASTING UNION
The dilemma of broadcasters’ archivesl EBU Members: 28 million hours of European radio and TV contentl Problem is (orphan) rights, rather than orphan works: n PSB productions include many different works and performances; one “uncleared” segment blocks use of the whole production n Huge administrative costs: e.g. 72 million GBP to clear BBC archive n Diligent search for PSB’s archives would only exacerbate, not solvel Need for specific solution recognised in InfoSoc report
The EBU proposal Ø ECL system, i.e. a “special/generic” model (CL agreement is decisive), should be available in each EU Member State; Ø For optional use only, i.e. national level to decide for which category of works and which use(s) it should be applied; Ø To be used only where need for collective licensing exists; Ø In connection with the ‘‘country-of-(licence-)origin’’ principle (i.e. one applicable law, also for online use).
EU Copyright :General need for simplifying rights clearance New media and multiplatform use (and audience reactions thereto) → urgent need for flexibility in rights clearance; Orphan works issue symptomatic of the more fundamental problem → administrative costs cannot be invested in new creations; important for (all) users and right holders alike; Simplified regime for rights clearance allows for more legal (affordable and easy-to-use) online offers → best way to tackle piracy.
The Danish ECL experience l ECLs are applied to: • Educational use (Art. 13 and Art. 18) • Internal use in business enterprises, etc. (Art. 14) • Public libraries (Art. 16b) • Visually- and hearing-handicapped persons (Art. 17) • Reproduction of works of art (Art. 24a) • Broadcasting of published works (Art. 30) • Broadcasters’ archives (Art. 30a) • Simultaneous retransmission (Art. 35) • [Mandatory collective licence concerning public performance of phonograms (Art. 68)] Plus: A generic ECL provision (Art. 50) for anything else!
The Danish provision on broadcasters’ archives l Works as part of broadcasters’ own [+ commissioned] productions can be rebroadcast and made available, provided the requirements of Art. 50 regarding extended collective licences are fulfilled; l This includes the making of copies needed for the reproduction; l It covers works which are part of the broadcasters’ productions broadcast before 1 January 2007; l The author may prohibit the broadcaster from including his work; l (Applies mutatis mutandis to performances).
The (subsequent) collective agreements in Denmark 2007: Framework agreement concerning on-demand use and use of clips in new productions 2008: Special agreement concerning re-runs of archive productions on DR’s two specialised TV channels (Children and Culture/History) Both: All right holders are represented jointly by a collective rights management organisation (CopyDan Arkiv, comprising several organisations)
What makes ECL so attractive? The Nordic ECL model has existed It is a Applied only ‘‘future- in cases proof’’ where ECL It requires a generally consensus allows for between the
Cross-border effect: Some preliminary questions Since when (and where) is mere reception of an authorized communication a separately restricted act under copyright? Does any of the Nordic provisions on ECLs explicitly prohibit the representation of foreign right-holders?How could Art. 9(2) Sat-Cab Directive be implemented anywhere if the ’deemed to represent’’ would not include foreign right-holders? Is the main concern not so much the delocalization of the user, but rather the tariff-setting?
Cross-border effect: Combine ECL with country-of-(licence-)originAdapt the satellite + Reciprocity agreementsbroadcasting model (1993 among national and foreignEU Directive) collective rights = Same online use can be• = 1 applicable law management societies agreed on all territories.(usually that of the ECL (such as currently appliedagreement) for music)
Some figures to comparel EU broadcasting sector: ≥ 30 billion Euros to the EU copyright economy; EBU Members: ≥ 10 billion Euros per year in original audiovisual productions; Largest bulk of that money goes to European right-holders.l How much does iTunes contribute to EU right-holders? E.g. European performers claim to see almost no income from music online services. BBC issues 300.000 contracts to individual contributors per year, but re-clearance of rights to those contracts requires 250.000 work hours and 5 Million Euros p.a.; Any music online service provider can cover 80% of worlds repertoire (probably 95% of most popular music) via 5 contracts only (with 4 major labels and one pan- European collective licence). Why focus of EU copyright reform (again) on music services only???
Conclusions l National ECLs to be introduced now (Green Paper too late; PSI Directive wrong instrument); l As simple as possible, special/generic model (= not limited to orphan works only, and not limited to the making-available right only); l Details to be decided by national laws/stakeholders (and allow continuation of any existing ECLs); l In countries where ECL is introduced for broadcasters’ archives: Scope + conditions to be determined by national law.