Upphovsrättsliga avtalslicenser i ett gränsöverskridande perspektiv
Sammanfattning: In order for a user to exploit a copyright protected work, permission needs to be obtained from the author. In certain fields, large amounts of copyright protected work are exploited. To acquire individual permits is both time consuming and expensive. The Nordic countries have solved this problem by introducing a system of extended collective licenses (ECL). An ECL is an agreement between an organization that represent a substantial number of Swedish authors and a user about exploiting the works of the members. The ECL is characterized by the fact that it also extends to cover non-members, so called outsiders. The title of this paper is: “Extended collective licenses in a cross border perspective” and its purpose is to analyze how the ECL-system functions in a digitalized and borderless world. The ECL has existed in Sweden since the 1960’s. Today there are six specific ECL provisions in the Swedish Copyright Act. They are used in areas such as broadcasting, education and government. ECLs have been until today limited in their application to non-digitalized exploitations. An official government report from 2010 proposes that certain ECL provisions should be expanded to cover digitalized exploitation and that a general ECL should be introduced. The general ECL would be used in areas which have been decided by the parties. There is also an interest for ECLs in the EU. It could be a potential solution to the right clearing problems which arise when making the cultural heritage accessible to the public. To implement the ECL it has to conform to the obligations of international conventions and the EU-legislation. The ECL can possibly be regarded as a limitation. It follows from the regulations that the limitation from exclusivity needs to be compatible with the three step test; “Members shall confine exceptions and limitations on exclusive rights to certain special cases, which do not conflict with normal exploitation of the work, and do not unreasonably prejudice the legitimate interests of the right holder”. It appears that ECL provisions meet the requirements in the test. It is more uncertain regarding a future general ECL. ECLs are not considered to be a limitation in accordance to the EU Copyright Act. They are instead considered to be a way to manage rights. Outsiders should also be treated equally according to provisions in the EU and the conventions, which entails that they should receive the same remuneration as members. There are some faults, especially regarding the foreign outsiders. However, the faults are mostly attributable to the organizations. Problems arise when the ECL is applied to exploitation on the Internet. One of the problems relates to where the user clear rights when exploitation takes place across borders. Another problem is which law is applicable in infringement cases on the Internet. One of the major obstacles is due to the principle of territoriality. It entails that copyright is limited to the protected country. As a result, a user needs to clear rights in every country where the protected work is disseminated and in cases of infringement on Internet several laws can become applicable. One solution is to introduce the country of transmission-principle, which entails that a single law is applicable and the user only needs to clear rights in one country. Another solution, which can be used in infringement cases on the Internet, is ”Ubiquitous infringements”. It limits the laws to the one which has the closest connection to the infringement. The biggest challenge for a future ECL-system is its compatibility with the rules on equal treatment. The solution might be found in a harmonization of copyright management. As the case today, there will be difficulties to introduce the ECL-system to other countries, due to the three step test and rules on equal treatment. Despite the problems, I would claim that the ECL has a future in our digitalized world, at least in the Nordic countries. The advantages of the system overweigh the problems, which can eventually be resolved.
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