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The ECL model in a multi-territorial / cross-border setting
Johan Axhamn, IViR visiting researcher

“Typical” characteristics of digitization and online dissemination
of the collections of the national cultural institutions

¢ Many copyright protected items
¢ Many right holders, including outsiders
¢ Mass-use: Many items are to be digitised and
disseminated online (in a relatively short period of time).
¢ Many works are orphan, i.e. it is difficult to find or locate
the right holder

¢ Very high or infinite transaction costs and therefore
suitable for an ECL solution at national level
£ Presupposes good structure and culture of CMOs

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ECL?
¢ ECL provisions and agreements in the Nordic
countries
£ The extension effect is supported by law

£ Legal safeguards for outsiders

¢ ”ECLs” not supported by legislation
£ Traditionally referred to as indemnity

agreements

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Cross-border solution


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The cross-border (multi-territory) problem
¢ Copyright is territorial, i.e. permission to use (license) has to be cleared
with right holders in every country (territory) where use occurs
¢ The current legal situation is that the act of making available to the
public of a copyright protected work takes place in all the territories
where it can be received.
£ i.e. a country of destination/access rather than country of
transmission (i.e. the country in which the service originates)
principle

¢ Traditionally, national CMOs have issued licenses only for their own
territory
£ Multi-repertoire and mono-territory licenses


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.. but there is demand and political pressure on making
the collections of cultural institutions available all over
Europe (through Europeana)
¢ i.e. demand for multi-
territory licenses


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Possible solutions to the multi-repertoire multi-
territory problem
¢ Encourage the cultural institutions to clear the
rights with CMOs in every country of destination
¢ Promote multi-territory licensing

¢ Introduce a country of transmission principle

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Encourage the cultural institutions to clear the rights
with CMOs in every country of destination

¢ “Do nothing”
¢ Pro/con: The territoriality of copyright is kept
intact within the EU
¢ Con: Very high transaction costs for cultural
institutions to negotiate licenses with CMOs in
each and every member state, even if ECL
provisions are introduced at national level

Promote multi-territory licensing
¢ Encourage the CMOs to develop the current system of reciprocal
agreements
£ A model similar to the “IFPI Simulcasting agreement”

˜ The traditional multi-repertoire mono-territory aspect of the
reciprocal agreements is supplemented by a mandate
enabling the national CMOs to license multi repertoires for
multiple (i.e. also each others) territories.
˜ The user does not have to obtain the license from his

national CMO.

¢ Pro/con: Based on free negotiations between the CMOs.
¢ Pro/con: The territoriality of copyright is kept intact within the EU

Introduce a country of transmission principle
¢ Similar to the “country of uplink” principle in the Sat/Cab
directive
£ The copyright-relevant act only occurs in the country

where the library is residing

¢ The national cultural institution would only have to clear rights
with CMOs in its country of residence

¢ Reasonably, the provision has to be limited to content that is
only of national cultural importance (in line with the aims of
Europeana)
£ Is “country of first publication” an adequate notion?

¢ Pro: Easy rights-clearance and legal certainty for libraries.

Proposed ECL for cultural institutions in SE
¢ “Certain cultural institutions may, if the
prerequisites of an ECL are fulfilled, reproduce
copies of works in their own collections and
communicate them to the public.”

¢ Necessarily broad – leaves great flexibility but also
responsibility to the market parties

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Commission staff working document (2007)

¢ “The extension of the country of origin principle
raises a number of concerns, such as the
difficulties of locating the relevant act of
transmission in the digital environment, the risk
of devaluation of copyright if a single tariff and
license were to be applied to the whole Internal
Market.”


Green paper – copyright and related rights in the
Information society (1995)
¢ “Here as elsewhere the basic principle should be that the
applicable law is that of the Member State in which the
service originates. But in the intellectual property sphere
that principle can be applied only if there is a far-
reaching harmonization of the relevant rights at the
same time.”

¢ “A Community rule on the applicable law would seem to
be indispensable. Such a rule could be along the lines of
the mechanism in the Satellite and Cable Directive: the
act of communication could be defined in a similar way,
on the basis of transmission rather than reception.”


Conclusion
¢ Possible solution
£ Combine an ECL provision at national
level with a principle of country of
transmission
˜ For cross-border dissemination of national cultural heritage

£ Introduce common EU principles on good

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Development of ECL agreements
¢ Historically in the Nordic countries
£ Organisations à Collective agreements

à ECL provisions in law

¢ In this context
£ ECL provisions in law à Organisations
à ECL agreements

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The ECL model in a multi-territorial / cross-border settingJohan

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The ECL model in a multi-territorial / cross-border settingJohan