Comment of the European Copyright Society on the Implementation of the Extended Collective Licensing Rules (Arts. 8 and 12) of the Directive (EU) 2019/790 on Copyright in the Digital Single Market

Author:The European Copyright Society
Pages:101-109
 
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Comment of the European Copyright Society
2020
101
2
Comment of the European Copyright Society
on the Implementation of the Extended Collective Licensing
Rules (Arts. 8 and 12) of the Directive (EU) 2019/790 on
Copyright in the Digital Single Market
by The European Copyright Society
© 2020 European Copyright S ociety
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obta ined at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Europe an Copyright Societ y, Comment of the ECS on Arts. 8 and 12 DSM-D, 11 (2020) JIPIT EC 101
par a 1.
A. EXECUTIVE SUMMARY
1
The European Copyright Society (ECS) was founded in
January 2012 with the aim of creating a platform for
critical and independent scholarly thinking on European
Copyright Law. Its members are renowned scholars and
academics from various countries of the European Union,
seeking to promote their views of the overall public interest.
The Society is not funded, nor has been instructed, by any
particular stakeholders. This ECS Comment concerns the
implementation of Articles 8 and 12 of the Directive on
Copyright in the Digital Single Market (DSM Directive or
DSMD)1 into national law.
2 Articles 8 and 12 of the DSM Directive provide the
rst explicit legal basis for extended collective
licences (ECL) in the EU copyright acquis. Article 8
is a mandatory rule on the use of out-of-commerce
works and other subject matter by cultural heritage
institutions, whereas Article 12 is an optional rule
that applies to all kinds of works or other subject
matter and all forms of use. Although Article 12 is
optional, it harmonises national rules on ECLs and
leaves some, but limited, freedom to the Member
1 Directive (EU) 2019/790 of the European Parliament and
of the Council of 17 April 2019 on Copyright and Related
Rights in the Digital Single Market and Amending Directives
96/9/EC and 2001/29/EC, Ofcial Journal of the European
Communities 2019 L 130, 92.
States. Accordingly, national rules on ECL must
comply with the safeguards in Article 12(3) and the
stipulations in Article 12(2).
3
An ECL must be managed by a copyright
management organisation (CMO) that complies with
the conditions set out in Directive 2014/26/EU on
collective management of copyright etc. The CMO
must be sufciently representative of rightholders
in the relevant type of works or other subject matter
and of the rights that are the subject of the licence.
The ECS suggests that the representativeness
requirement should not be construed too rigidly,
for instance as a requirement that a majority of
rightholders in the relevant eld must be members
of the mandated CMO. The representativeness
requirement should be a exible tool that safeguards
the interests of rightholders and enables effective
collective licensing.
4
The Directive is silent on further conditions for
providing the CMO with the legal mandate to enter
into collective agreements with extended effect.
Hence, it is to be presumed that Member States are
at liberty with regard to such conditions. The ECS
recommends that an administrative authorisation
scheme covering CMOs mandated to manage ECLs
and the individual collective agreements with
extended effect is implemented in each Member
State. An authorisation scheme will provide for the
highest degree of predictability and transparency
for the process of determining which agreements
will trigger the extension effect. Furthermore, an

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