ECL provisions in relation to international conventions and EU law

Lucie Guibault, Assistant professor, Institute for Information Law

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International conventions

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International Conventions¢ Berne Convention for the Protection of Literary and

Artistic Works¢ WIPO Copyright Treaty¢ Rome Convention for the Protection of Performers,

Producers of Phonograms and Broadcasting Organisations

¢ WIPO Performances and Phonograms Treaty (WPPT)

¢ Agreement on Trade-Related Aspects of Intellectual Property Rights

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National treatment/ Minimum protection

¢ Art 5(1) BC: Authors shall enjoy, (…) in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.£ No contradiction with ECL provisions which all

include the principle of equal treatment

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Prohibition on formalities¢ Art 5(2) BC: The enjoyment and the exercise of

these rights shall not be subject to any formality.£ The possibility to “opt out” from the ECL scheme

does not affect the “enjoyment” or the “exercise”.£ The right is exercised in any event, either collectively

as statutory default rule or individually if the right

holder “opts out”.

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Possibility to introduce limitations and exceptions to the exclusive rights

¢ The three-step test£ BC art. 9(2), WCT art. 10(1) and 10(2), WPPT art. 16(2), and TRIPS

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1. An exception or limitation may be imposed in national legislation

in certain special cases,

2. that do not conflict with a normal exploitation of the work (or

other subject matter), and

3. do not unreasonably prejudice the legitimate interests of the

author/rightsholder.

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ECLs and the three step test

¢ Are ECL provisions and the related extended effect of collective agreements on outsiders’ rights limitations on the exclusive rights?

¢ Members are exercising their rights; any effect of limitation only applies to outsiders

¢ The ECL provisions and related agreements are heterogeneous.

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“An exception or limitation may be imposed in national legislation in certain special cases,”

¢ The first step demands that limitations are narrow and clearly defined£ Emphasis should be put on the scope and contents of

the ECL agreement� which have been negotiated by a representative CMO

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” that do not conflict with a normal exploitation of the work (or other subject matter)”¢ The second step aims at prohibiting limitations which come

into economic competition with the authors/right holders exploitation of their rights£ ECLs aims to solve the problem of market failure with non members:

such areas cannot reasonably constitute areas of normal exploitation £ Emphasis should be put on the scope and contents of the ECL

agreement� which have been negotiated by a representative CMO

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” do not unreasonably prejudice the legitimate interests of the author/rightsholder”

¢ The third step aims at mitigating the impact of limitations on the interests of rightsholders£ Payment of remuneration is accepted form of mitigation £ ECL includes safeguards for outsiders

� Opt-out (?)� Equal treatment� Right to individual remuneration

£ ECLs are based on free negotiations (?)

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EU law

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Limitations and exceptions at EU level

¢ Article 5 of Directive 2001/29/EC (Infosoc) includes a closed list of permissable limitations and exceptions to the exclusive rights

¢ Article 5.5 lays down the three-step test

¢ Preamble 18 of Directive 2001/29/EC: “This Directive is without prejudice to the arrangements in the Member States concerning the management of rights such as extended collective licences.”

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Article 3.2 of Directive 93/83/EEC (Sat/Cab)

¢ Article 3.2 of the Sat/Cab directive: “A member state may provide that collective agreements between a collecting society and a broadcasting organization concerning a given category of works may be extended to right holders of the same category who are not represented by the collecting society, provided that: the communication to the public by satellite simulcasts a territorial broadcast by the same broadcaster, and the unrepresented right holder shall, at any time, have the possibility of excluding the extension of the collective agreement to his works and of exercising his rights either individually or collectively.”£ Extension effect of a collective agreement within a given field£ Possibility to opt out

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Coherence of the ECL model with EU law

¢ Reasonably ECLs are outside the scope of the “closed list” of exceptions and limitations in article 5 of the Infosoc directive as long as they fulfill the general criteria for ECLs as provided in article 3.2 of the Sat/Cab directive

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Non-discrimination

¢ Article 18 TFEU: “Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.”£ Principle of equal treatment in the ECL provisions£ The CMO shall represent “a substantial part of

authors of works used in the relevant territory”� Prior wording: “a substantial number of national authors..”

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Conclusion¢ ECL agreements must comply with the three

step test£ More leeway than compulsory licenses

¢ ECLs must, to be regarded as ECLs, fulfill the general criteria in article 3.2 of the Sat/Cab directive

¢ ECLs are not in contradiction with the prohibition on formalities and the principles of national treatment and anti-discrimination