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European cross-border rights clearance
Lucie Guibault and Manon Oostveen
2nd Europeana Workshop, 14 June 2013
Institute for Information Law
Contents
Regulatory instruments Cross-border regimes Compatibility Workflow of cultural heritage institutions Conclusion
Eruopean Cross-border rights clearance 2
Research question
Will the work of cultural heritage institutions become easier by the introduction of the MoU, the Orphan Works Directive and the Directive on collective management and multi-territorial licensing of online musical works?
Are the cross-border provisions of the three instruments compatible with each other?
European Cross-border rights clearances 3
The Instruments
Memorandum of Understanding (MoU) on out-of-commerce works
Directive 2012/28/EU on certain permitted uses of orphan works
Proposal for a directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses
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MoU
Rights clearance based on extended collective licensing
Scope: multi-territory mono-repertoire (extended effect limited to national repertoire)
No direct extra-territorial effect Possibility to limit scope of extended effect in
types of uses and territory
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Orphan Works Directive
Article 4
Mutual recognition of orphan work status
A work or phonogram which is considered an orphan work according to Article 2 in a Member State shall be considered an orphan work in all Member States. That work or phonogram may be used and accessed in accordance with this Directive in all Member States. This also applies to works and phonograms referred to in Article 2(2) in so far as the rights of the non- identified or non-located rightholders are concerned.
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Draft Directive on Multi-territorial licensing
Extra-territorial effect based on ‘passport’ system One CMO gives mandate of representation
to another CMO Likelihood of concentration of the market to a
few ‘super’ CMOs Reciprocal agreements between CMOs still
necessary
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Compatibility Issues
Form and scope of implementation of instruments still uncertain
Potential for incompatibility between regimes at national and cross-border level because of possible co-existence of ECL for books/articles and Orphan Works status
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European Cross-border rights clearances 11
European Cross-border rights clearances 12
Workflow of a CHI
No single clear and comprehensive system to clear rights
Potential problems of
Restrictions
Fragmentation
Implementation
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Solution?
Conclusion of agreements between CMOs and CHIs for cross-border use of material
Problem: not all sectors of copyright are equally organized to allow representative agreements to be concluded
Other solutions????????
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Thank you very much!
For more informationLucie Guibault
Manon [email protected]
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