Extended Collective Licensing for the Use of Out-of-Commerce Works in Europe: A Matter of Legitimacy vis-à-vis Rights Owners

Extended Collective Licensing (ECL) schemes have been put forward in Europe as one of the solutions for the licensing of out-of-commerce works by cultural heritage institutions. ECL schemes extend the application of freely negotiated copyright licensing agreements between a user and a collective management organisation (CMO) to the works of non-members of the organisation. Not every CMO is suitable to license works under ECL provisions, however. In particular, the legitimacy of any agreement crucially relies on the “representativeness” of the CMO. This article focuses on the notion of representativeness of CMOs. On the basis of current European and national legislation, we argue that the representative character of a CMO encompasses three essential elements to be considered from the perspective of the rights owners: (1) the CMO must have a broad membership among the potential rights owners in the market it serves; (2) it must have a proper mandate from the rights owners in terms of category of works and rights covered; and (3) it must take appropriate measures to reach and inform (non-)members about the exercise of rights. ECL schemes can only be sufficiently legitimate to presume tacit approval by non-members if this assessment of the three criteria is carried out carefully.