Facilitate effective collective licensing of rights, including where possible, through extended collective licensing systems

A – Issue at stake

  • In the absence of clear legal exceptions permitting reproduction of copyrighted works in their collections for mass-digitization purposes, museums usually have no other choice, in order to avoid risks, than to negotiate licenses with rights holders. Apart from the artists themselves, CMOs or like entities – as assignees of the author’s copyrights – are usually the main licensors of art works in copyright, on the basis of voluntary collective licenses.
  • While this situation is not ideal for any category of works under copyright in museums’ collections (see Proposal 1 for the suggested global solution), three categories of in-copyright works are especially problematic from a management standpoint: orphan works and, to a lesser extent, out-of-print/out-of-commerce works.  Indeed, for those works, museums cannot afford the long-term and costly research of the rights holders in order to obtain a permission to digitize and to use the digitized copy.1 A CMO is rarely inclined to carry out such a search because the rights holder may not be found and if found, may not mandate the CMO to license his work. Unpublished works pose an additional obstacle, since publication is one of the most important moral rights (usually referred as the right of disclosure). Therefore, in some jurisdictions limitations and exceptions that would normally allow museums to use a work are not applicable in case of unpublished works.
  • As such, the extended collective licensing (“ECL”) model appears to be a convenient vehicle to ease digitization of works in collections that are out-of-print, out-of-commerce, orphan or unpublished.2 ECL allows an authorised CMO to extend an existing collective license to cover not only its members, but also non-member rights holders of the same sector, except those who opt out. In practice, it means that a CMO may grant a license to use a work even if all rights holders in the work have not assigned their rights to it.3
  • So far, however, the ECL model has not been endorsed clearly in the laws of a majority of EU member States; yet, art. 12 of the EU Copyright Directive of 2019/790 of 17 April 2019 sets a framework to encourage the development of ECL.4  Besides, non-EU countries are not familiar with ECLs.5 Having said that, Switzerland is about to adopt a new liberal ECL model that even allows the use of unpublished works.6

B – Clarifications

  • Legislators should work towards creating and/or encouraging the development of ECLs.
  • Museums should take the initiative to design and promote ECLs for selected categories of works and uses by drafting templates.7 Such templates should notably take into account the following elements:
    • Scope of covered works (out-of-commerce/in-commerce works, complex works containing non represented works, born-digital works, unpublished works) and the licensed uses (non-commercial/commercial);
    • Forms of access of end-users (remote access, general public versus certain categories such as affiliates or members of the rights holders authorising the CMO‘s ECL, related security and dispute resolution issues);
    • Royalty distribution requirements (approved tariffs, pay-per-use, dealing with small amounts; fair allocation; effective payment, etc.);
    • Criteria for CMOs eligibility and control.
  • For out of commerce or collaborative works with both known/unknown authors: out-of-commerce artworks in possession of museums should be promoted by museums, public culture authorities and CMOs who are aware of the high rate of “ghost” works in museum collections. Notably, a working group of museums and experts on the author and its works could draft and suggest a referential for an ECL license as well as a promoter (CMO or ad hoc structure) for this ECL.
  • For unpublished works : to find out if ECL is possible, the starting stage should be the creation of an online repository of unpublished works accessible to museums (namely those possessing works of same author, if known). Experts on the author could then decide if and how to allow access to and use of the work(s) in the absence of clear instructions by the latter.