ArticlesVolume 41, No. 3 (2018)

Facilitating Transactions and Lawful Availability of Works of Authorship: Online Access to the Cultural Heritage and Extended Collective Licenses

Rán Tryggvadóttir

Rán Tryggvadóttir, Ph.D.

Abstract

The importance of providing access to the cultural heritage1 is widely accepted.  Digital technology has supplied powerful new tools to reproduce and disseminate works and at the same time has transformed the demands and expectations of end-users.2  Nevertheless, there are several issues that cultural heritage institutions (“CHIs”) must resolve in order to maintain their role of preserving and disseminating cultural heritage in the digital age.  Although some of those issues are budgetary rather than legal,3 copyright is obviously a key consideration in the digital use of in-copyright works by CHIs.  The largest copyright challenge for CHIs is the process of identification of right holders of copyright and clearance of rights, i.e. obtaining authorization or licenses for use of in-copyright works.

Stakeholders do not agree how best to facilitate CHIs in their important cultural role.  Some advocate the establishment of legal exceptions whereas others favor licenses.  My starting assumption is that, given the impact of online use, licensing is a more appropriate and flexible tool than exceptions.  However, obtaining individual licenses for the use of in-copyright works held by CHIs is complicated, time-consuming, and costly, in particular for cross-border online use.4  Thus individual licensing is not a practical solution for CHIs except for the use of a few well-defined works.  Even collective licensing does not fully solve the licensing issue because no collective management organization (“CMO”) has mandates from all right holders in a given field.5  Hence, I propose that the solution is to be found through collective licenses with legislative support, such as the system of extended collective licenses (“ECL”).6

In this essay I will start by giving a brief account of the main strands which constitute an extended collective license in the Nordic countries, where it was first developed.7  I will describe two examples where ECLs have been used to facilitate access to the cultural heritage, in Norway and Finland respectively.  I will also discuss the compatibility of the system with international norms, in particular the Berne Convention,8 and finish with some reflections on challenges and benefits of the system of ECLs in facilitating access to cultural heritage.

© 2018 Tryggvadóttir.  This is an open access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction, provided the original author and source are credited.

  1. The term “cultural heritage” does not have a clear definition.  When talking about “cultural heritage” here, I am simply referring to works contained in cultural heritage institutions such as libraries and museums.
  2. Estelle Derclaye, Conclusion, in Copyright and Cultural Heritage; Preservation and Access to Works in a Digital World 233, 233 (Estelle Derclaye ed., 2010); Nadine Klass & Hajo Rupp, Europeana, Arrow and Orphan Works: Bringing Europe’s Cultural Heritage Online, in EU Copyright Law: A Commentary 946, 950 (Irini Stamatoudi & Paul Torremans eds., 2014).
  3. Rep. on the Implementation of Comm’n Recommendation, EC, 2011/711/EU, 2013-2015, at 7 (June 2016); Maurizio Borghi & Stavroula Karapapa, Copyright and Mass Digitization 104 (2013); Derclaye, supra note 2, at 233-34.
  4. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Creative Content Online in the Single Market, at 23, COM (2007) 836 final (Jan. 3, 2008); Assessing the economic impacts of adapting certain limitations and exceptions to copyright and related rights in the EU: Analysis of specific policy options, at 17 (May 2014), https://perma.cc/PLN4-QCQ3; Cross-border extended collective licensing:  A solution to online dissemination of Europe’s cultural heritage?, at 70 (August 2011); Thomas Dreier et al., Museen, Bibliotheken und Archive in der Europäischen Union; Plädoyer für die Schaffung des notwendigen urheberrechtlichen Freiraums, 2012  ZUM 273, 280; Lucie Guibault, Cultural Heritage Online? Settle It in the Country of Origin of the Work 2015, (3), JIPITEC, 173-91, 173.
  5. Commission staff working document:  Impact Assessment on the modernisation of EU copyright rules, at 67-68, SWD (2016) 301 final (Sept. 14, 2016); Mihály Ficsor, Collective Rights Management from the Viewpoint of International Treaties, with Special Attention to the EU ‘Acquis’, in Collective Management of Copyright and Related Rights 66-67 (Wolters Kluwer ed., 3d edn. 2016) .
  6. See Rán Tryggvadóttir, Copyright and cross-border online use of works by libraries in Europe: the case for extended collective licences 21-23, 199, 365-67 (2017) (Ph.D. dissertation, KULeuven) (on file with KULeuven).
  7. Here the term “Nordic countries” refers to Denmark, Finland, Iceland, Norway and Sweden.
  8. Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Paris on July 24, 1971 and amended in 1979, S. Treaty Doc. No. 99-27 (1986).