ECL of Archives and Libraries in a Cross Border Context Lucie Guibault

Institute for Information Law

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ECL in the EU framework

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Recital 18 of Directive 2001/29/EC on Copyright in Information Society

Recital 24 of Directive 2012/28/EC on certain uses of Orphan Works

Recital 12 and Article 7 of Directive 2014/26/EC on collective management of rights

Article 4 of Memorandum of Understanding on Key Principles on the Digitisation and Making Available of Out-of-Commerce Works of 2011

ECLs in different shapes and forms

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Bookshelf project (Norway)

Encyclopedia (Denmark)

Out-of-commerce books (Germany)

Relire (France)

Out-of-commerce books (Slovakia)ECL provision (UK)

Out-of-commerce books (Poland)

Characteristics of ECL

Nature of the extension mechanism Requirement of representativeness of CMOs Opt-out option Subject matter covered by the agreements Definition of user groups Scope of the licence Conditions of use

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Country of first publication

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Country of first publication

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Orphan Works Directive

Legislative intervention necessary‘(1) For the purpose of the conclusion of agreements between a collective management organisation and a user, a Member State may introduce a mechanism by which the work of a rightholder who has not transferred the management of his rights to a collective management organisation, shall be presumed to be managed by the collective management organisation which manages rights of the same category of works in that Member State, unless he has expressly advised otherwise. (2) Where such a mechanism has been established in a Member State for the making available by publicly accessible cultural heritage institutions of works first published in that Member State, the works may be made available at, or by the same categories of institutions in all Member States’.

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Advantages

This proposal leaves Member States free to: Establish an ECL or not; Fix the conditions of exercise:

Works covered (type/ cut-off date) Duration Payment

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Drawbacks

This proposal does not guarantee broad availability of works;

Actually it guarantees a patchwork coverage! Necessitates organisation of CMOs

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Need for a transparency measures

The actual repertoire The opt-outs The licensing conditions covering the use of

works first published in that country.

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