Document Type

Working Paper

Publication Date

2017

Center/Program

Kernochan Center for Law, Media and the Arts

Center/Program

European Legal Studies Center

Abstract

National legislation establishing extended collective licenses (ECLs) “authoriz[es] a collective organization to license all works within a category, such as literary works, for particular, limited uses, regardless of whether copyright owners belong to the organization or not. The collective then negotiates agreements with user groups, and the terms of those agreements are binding upon all copyright owners by operation of law.” Albeit authorized under national laws, collective coverage of non-members’ works may pose issues of compatibility with international norms. For example, if non-members must opt-out in order to preserve the individual management of their rights, is the opt-out a “formality” prohibited by art. 5(2) of the Berne Convention? Without an opt-out, does the collective’s exercise of nonmember rights operate like an exception or limitation whose contours the Berne Convention, the TRIPS Accord, and the WIPO Copyright Treaty “three-step test” constrain? This essay will analyze the extent to which international norms apply to ECLs and then will propose a treaty-compatible approach to opting-out. ECL systems are a pragmatic response to the growing demand for bulk use of works of authorship, particularly in the digital environment. They can enhance access for users and remuneration to authors, and often may furnish the best means of achieving these ends. Provided, however, that authors' consent is properly presumed, or that the covered uses are defined to avoid conflict with normal exploitations, including emerging exploitations. An opt-out can enable the CMO to license uses that might otherwise encroach on normal exploitations, but for that reason, the more the ECL treads on transactionally-licensable exploitations, the higher the burden to justify the extension effect to non members through a rigorously-administered opt-out program that effectively notifies and clearly explains the consequences to non CMO member authors of their right to opt-out.

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