Europeana Founda,on ·∙ EUscreenXL IPR Workshop The Hague, 13 May 2014
Bringing Audiovisual Works Online: (No) Sooner Said than Done?
Eleonora Rosa?
@eLAWnora eleonora@e-‐lawnora.com
Contents
• The peculiari,es of audiovisual works • Rights clearance
• What if you can’t locate who owns the rights? • More rights involved in single act of exploita,on (Public Consulta,on)
• When rights clearance is not required: excep,ons and limita,ons • Cross-‐border excep,ons (Leaked IA)?
• Any elephant in the room?
The peculiari?es of audiovisual works
• Different rightholders • Case C-‐277/10 Luksan
• Legal treatment of underlying works and soundtracks • Temporal law difficul,es
• The (messy) case of the UK
Rights clearance, or: there are things that are easier
What if you can’t locate who owns the rights?
The (shortcomings of the) Orphan Works Direc?ve
• Ini,al idea vs final result • Rec 3: “Crea+ng a legal framework to facilitate the digi+sa+on and dissemina+on of works” • Rec 1: “Crea+ng large online libraries facilitates electronic search and discovery tools” • Without specific TDM excep,on? Right to read is right to mine? • Leaked IA deals with TDM (some,mes but not always implies making a copy)
• Exis,ng law • (InfoSoc) excep,on for non-‐commercial scien,fic research (UK) • Excep,on for temporary copies • Ar,cle 6(2)(b) and 9(b) Database Direc,ve
• The way seems to be licensing? (Licences for Europe) • Cf Google Books ruling: neither excep,on nor licence
The case of the UK
OW Direc?ve and ERRA licensing scheme
OW Direc,ve ERRA scheme
Beneficiaries • Publicly accessible cultural ins,tu,ons • Public-‐service broadcas,ng organiza,ons Any
Categories of works (no maUer whether published or unpublished)
• Literary, cinematographic and audiovisual works and phonogram in collec,ons of publicly accessible cultural ins,tu,ons.
• No photographs and stand-‐alone images • First published or broadcast in the EU
Any, including non-‐UK and non-‐EU
PermiUed uses • Only to achieve public interest mission • Generate revenues only to recoup digi,za,on & making
available costs Any
Legal mechanism Excep,on to the rights of reproduc,on and making available Licence
Timeframe Implementa,on by 29 October 2014 Regula,ons on track for adop,on in October 2014
Is the ERRA scheme just “complementary”?
• Is the legal mechanism actually a licence? “The Secretary of State may by regula+ons provide for the grant of licences …” • OW Direc,ve • InfoSoc Direc,ve
• OW Direc,ve
• Requires MSs to adopt common approach to determining permieed uses of OWs • MSs may undertake independent ini,a,ves to address larger mass digi,za,on issues (eg out-‐of-‐commerce works) • Not the case of UK scheme
Is mutual recogni?on enough?
• OW Direc,ve basically just allows digi,zing works and placing them online
• Has effec,veness (to say the least) of EU ac,on in the area of OWs been impaired? What if other MSs did like the UK? • EU pre-‐emp,on
• OW Regula,ons on track for adop,on in October 2014
• UK is thinking of concluding agreements with non-‐EU English-‐speaking countries to create OW databases and ensure mutual recogni+on of OW status
More rights in a single act of exploita?on
• Is it a problem? • Google: yes • UK Government: no
• Time and economic (transac,on costs) problem • What if you don’t clear all rights? • The scope of some (eg making available) is uncertain • Un,l Svensson unclear whether MSs could intend scope as they pleased
• Is it good for rightholders? • Which rights have been infringed? • Where to sue? Case C-‐170/12 Pinckney and Case C-‐387/12 Hi Hotel
When rights clearance not required, yet s?ll a problem: excep?ons and limita?ons
Different scope, but what room is really leU for MSs?
• Ar,cle 5 as a flexible shopping list? • Case C-‐510/10 TV2 Danmark • Case C-‐435/12 ACI Adam
• Over the past year alone CJEU quashed several na,onal laws • Did MSs understand what InfoSoc Direc,ve required • Is CJEU pursuing harmonisa,on agenda?
The elephant in the room: territoriality
Fragmenta?on and unclear laws lead to this:
Leaked IA
How (also) to reduce territoriality
• 4 policy op,ons (none preferred …) a) Leave it to market and courts b) Som law and support for market ini,a,ves (Licences for Europe) c) Legisla,ve interven,on (5-‐10 years)
• Direc,ve that would affect InfoSoc, Database and Rental and Lending Rights Direc,ves • How to reduce territoriality
i. New legal act (internal market basis) that would clarify which contractual territorial restric,ons would be null and void because of market par,,oning. Absolute territorial restric,ons may be OK insofar as only way to allow appropriate remunera,on
ii. Define where relevant copyright act takes place for the sake of licensing, according to country of origin (establishment) or inten,on to target approaches
d) European © code that would replace na,onal ,tles by means of regula,on ex Art 118 TFEU (10-‐12 years)
Thank you for your aYen?on!
eleonora@e-‐lawnora.com @eLAWnora