Advocate General Wathelet: Extended Collective Licensing is NOT the answer for mass digitisation!

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Last week we saw another Advocate General (AG) opinion published that deals with the position of cultural heritage institutions within the EU copyright framework. Hot on the heels of AG Szpunar’s opinion on e-lending, AG Wathelet weighed in on the question of whether the French system for making out-of-print books available online is aligned with the EU copyright directive. His opinion in the case C‑301/15 Soulier en Doke is that the French scheme, which assigns the digital reproduction and performance rights for out-of-print books to a collecting society that then licenses them, is incompatible with the InfoSoc directive. Such an opinion effectively undermines the idea that Extended Collective Licensing (ECL) can serve as a solution for the copyright problems created by mass digitisation of cultural heritage collections.

This opinion comes at a crucial time when the EU Commission is finalising its copyright reform proposal, which is scheduled to be published in September. As part of this proposal the Commission has promised to propose measures that will “make it easier to digitise out-of-commerce works and make them available”. While the Commission has so far been silent on the mechanism that it would propose to achieve this goal, it is generally understood that there are two different approaches on the table:

The Death of Extended Collective Licensing?

While AG Wathelet’s opinion only concerns the specific question referred to the CJEU by the French court, it has much wider-ranging consequences. Should the CJEU rule in agreement with the opinion (note that a decision is not expected until after the September publication of the Commission’s proposal), then Extended Collective Licensing is effectively dead as a solution for the copyright problems created by mass digitisation. In this sense, this opinion supports the position expressed by cultural heritage institutions that the only real solution for their issues is an update of the relevant exceptions in the InfoSoc directive.

While the immediate effect of such a ruling might be negative in the short run (it might limit access to French out-of-print books that are currently available), it could have a positive long-term impact. In the wake of the AG opinion the very real possibility of such a ruling could sway the Commission (and Member States that are reluctant to update exceptions, such as France) toward deciding on an approach based on an update of the relevant exceptions. This possibility alone makes it worth taking a closer look at AG Wathelet’s opinion.

His main argument is plain and simple: the legislation in question is not included in ‘the detailed and exhaustive list of exceptions and limitations in Article 5 of [the copyright directive]‘ [para 28]. Given that

the digital exploitation of copyright books constitutes ‘reproduction’ and ‘communication to the public’ of a work, which require individual and separate authorisation by the author, unless those acts are covered by an exception or a limitation provided for in Article 5. [para 26]

This means that the authors or subsequent rights holders have the exclusive right to authorise such reproductions and communications to the public. According to Wathelet the French law, which transfers the right to authorise these acts to a Collective Management Organisation, clearly violates this this fundamental principle of the EU copyright framework:

Authorizing Collecting Societies to issue licenses on behalf of rightsholders who are not ‘not fully exploiting [their] work[s], for example in the event that [they are] not being commercially distributed to the public’ [para 43] is the core mechanism of Extended Collective Licensing.

Wathelet makes it clear that in his opinion that Articles 2 & 3 of the InfoSoc directive preclude any law that authorises collecting societies to issue licenses on behalf of non-members. According to his analysis, a collecting society that grants licenses for the reproduction and communication to the public of works of authors that it does not represent infringes on those authors’ rights just as much as a memory institution that makes such works available without obtaining permission. Wathelet then proceeds to enlist the Orphan Works (OW) directive in his argument. According to AG:

… [the Orphan Works directive] was adopted because ‘in the case of orphan works, it is not possible to obtain such prior consent to the carrying-out of acts of reproduction or of making available to the public’. […] [The OW directive] provides that Member States are to provide for an exception or limitation to the right of reproduction and the right of making available to the public provided for respectively in Articles 2 and 3 of Directive 2001/29 to ensure that [cultural heritage institutions] are permitted […] to make them available to the public.

He goes on to point out that:

… it would be paradoxical if, pursuant to [the OW directive], the requirements imposed on the reproduction and communication to the public of an orphan work were far more stringent than those applicable to the same acts of exploitation in respect of ‘out-of-print’ books under national legislation such as that at issue in the main proceedings. In contrast to [the OW directive], which requires a diligent search for the rightholders to be conducted in good faith prior to the exploitation of a work, the national legislation at issue does not require an individual approach to be made to the author.

Given that the Orphan Works directive has so far failed to achieve its purpose of enabling the mass-scale digitisation of orphan works (primarily due to the overly onerous diligent search requirements pointed to by Wathelet), it is somewhat ironic that he uses it as an argument against a scheme that has been much more successful in achieving the same objective. This irony notwithstanding, Wathelet’s main argument remains valid:

In the existing structure of the EU copyright system, exceptions and limitations are the mechanisms for creating a balance between the exclusive rights of authors and other socially beneficial uses of their works (such as mass digitisation of out-of-commerce works maintained in the collections of Europe’s Libraries, Archives and Museums). Enabling such uses therefore requires updating the current list of exceptions and limitations and cannot be achieved by dubious legal constructions that assign difficult to obtain rights to collecting societies.

Update exceptions and limitations now!

The current EU copyright framework foresees exceptions to copyright for the purposes of building reconstruction – 5.3(m) – and the demonstration and repair of equipment – 5.3(l). If the EU can contemplate exceptions for these purposes, it is completely absurd that in an age where the importance of access to knowledge and culture is widely understood, the EU copyright framework still lacks a mechanism that allows publicly funded libraries and archives to make out-of-commerce works in their collections available online.

The European Commission is currently on the brink of proposing legislation which for the first time in fifteen years could result in an update of the exceptions and limitations in the EU. Over the last few weeks there have been increasing signals that the proposal will only contain minimal updates to the status quo. In this situation the Commission would be well advised not to ignore the arguments against Extended Collective Licensing brought forward by AG Wathelet in his opinion and propose a substantial update of the relevant exceptions and limitations to enable the mass digitisation of out-of-commerce works. The alternative would be another lost decade for online access to Europe’s rich cultural heritage.

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