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

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