Presentation given at the EUscreenXL Strategic Workshop on IPR Regulations for Audiovisual Heritage, The Hague, 13 May 2014

1. 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

2. 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?

3. 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

4. Rights
clearance, or:
there are
things that
are easier

5. What if you
can’t locate
who owns the
rights?

6. 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

7. The case of
the UK

8. 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unpublished)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

9. 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

10. 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

11. 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

12. When rights clearance
not required,
yet s?ll a problem:
excep?ons and
limita?ons

13. 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?

14. The elephant
in the room:
territoriality

15. Fragmenta?on and unclear laws
lead to this:

16. Leaked IA

17. 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)

18. Thank you for
your aYen?on!
eleonora@e-­‐lawnora.com
@eLAWnora