1. European cross-border rights clearance
Lucie Guibault and Manon Oostveen
2nd Europeana Workshop, 14 June 2013
Institute for Information Law

2. Contents
 Regulatory instruments
 Cross-border regimes
 Compatibility
 Workflow of cultural heritage institutions
 Conclusion
Eruopean Cross-border rights clearance 2

3. 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?
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4. 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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5. European Cross-border rights clearances 5

6. 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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7. 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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8. 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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9. European Cross-border rights clearances 9

10. 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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11. European Cross-border rights clearances 11

12. European Cross-border rights clearances 12

13. Workflow of a CHI
 No single clear and comprehensive system to
clear rights
 Potential problems of
 Restrictions
 Fragmentation
 Implementation
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14. 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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15. Thank you very much!
For more information
Lucie Guibault
L.Guibault@uva.nl
or
Manon Oostveen
manon.oostveen@student.uva.nl
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