Information on ECL

In 2021, the German legislator introduced new regulations for the granting of so-called “collective licenses with extended effect” by collecting societies in connection with the “Directive on Copyright in the Digital Single Market” and its implementation at national level.

An extended collective license is a special form of licensing by a collecting society: Under certain conditions, VG Bild-Kunst can extend a license for the use of its members’ works to the works of authors who have not transferred the relevant rights to a collecting society in Germany or abroad.

This form of collective licensing simplifies legal clarification for users: They no longer have to obtain individual consents for legally secure use. Instead, a single license agreement for a specific situation is sufficient to obtain all rights from the respective collecting society for a specific type of work (e. g. works of art). At the same time, the interests of non-members (“outsiders”) are protected, as they can declare their objection at any time in order to exclude their works from the license.

I. Collective licenses with extended effect (Sections 51, 51a VGG)

VG Bild-Kunst grants so-called “extended collective licenses” (ECL) and thus uses an instrument introduced in 2021 for collecting societies. With ECLs, not only the rights held by VG Bild-Kunst are combined in one license, but also the rights of third parties. However, these parties can object to the inclusion of their rights.

VG Bild-Kunst has its members contractually grant it certain exploitation rights in order to license these to third parties – so-called “users”. It distributes the proceeds to its members. Foreign sister societies transfer the rights from their members to VG Bild-Kunst, which significantly increases VG Bild-Kunst’s repertoire.

VG Bild-Kunst mainly licenses works of fine art, but in some cases also all works of the standing image. If users do not yet know which works they want to use in the future, VG Bild-Kunst offers collective licenses: Any use of VG Bild-Kunst’s repertoire is permitted for the time being, and billing takes place later.

In the case of extended collective licenses (ECL), VG Bild-Kunst is legally permitted to extend blanket licenses to the rights of authors who are neither members of VG Bild-Kunst nor of a foreign sister society (outsiders).

The legislator is thus pursuing the goal of enabling users to obtain the most comprehensive licensing possible. The ECL reverses the rule-exception relationship: Normally, authors must first transfer their rights to VG Bild-Kunst so that it can license them. With the ECL, however, the rights are automatically deemed to have been transferred until an objection is raised.

In relation to VG Bild-Kunst, outsiders have the same rights and obligations as members: Their works are priced neither higher nor lower than the works of members. In addition, they receive distributions like members according to the same rules as for members. However, if the distribution plan stipulates that participation is required in order to receive a distribution, this obligation also applies to outsiders. Deductions for administrative costs, social support and cultural support are also the same.

II. Extended collective license for unavailable works (Section 52 VGG)

Only domestic cultural heritage institutions can apply to VG Bild-Kunst for non-commercial publications in order to obtain an extended collective license for unavailable works. The legislator is thus opening up a way for these institutions to legally use works for which there is often no contact person.

German law provides for a special extended collective license for unavailable works. The term “unavailable works” refers to works that are not offered to the general public in a complete version through any usual distribution channel. For works of visual art, this specifically means that the corresponding rights of use are not legally available to the public, i. e. neither via VG Bild-Kunst nor via the authors themselves, for example because they are deceased and their heirs are unknown.

Licensees of this type of license can only be domestic cultural heritage institutions for their own non-commercial publications. The respective institution must clarify whether a work of visual art is available (licensable) or not. In the first step, this is done by request to VG Bild-Kunst. If VG Bild-Kunst does not have the work in its repertoire, the cultural institution must carry out a search for the rights holders. 

If the search for rights holders is unsuccessful, the following applies:

VG Bild-Kunst is permitted to grant an extended collective license for unavailable works, but it must register the works concerned on the online portal of the Office of the European Union for Intellectual Property (EUIPO) and publish them. This requires information on the works concerned and their authors. The EUIPO has published templates for this purpose, the current version of which we are happy to provide on request.

The authors of the works concerned – so-called “outsiders” – have six months from publication to object to the licensing of their works in advance via the portal. Subsequent objections only have an effect for the future and do not affect previous uses.

The license can initially be granted for all registered works for which no objection is declared within the deadline. VG Bild-Kunst uses its published tariffs for this purpose.

Domestic cultural heritage institutions therefore proceed as follows if they wish to use the image of a work of fine art:

1. License request to VG Bild-Kunst
2. If negative: search for rights holders.
3. If negative: request for extended collective license from VG Bild-Kunst.
4. Completion of the EUIPO form and submission to VG Bild-Kunst, which has this published in the relevant register.
5. Wait six months from publication, during this time clarify license conditions with VG Bild-Kunst (can of course be done earlier).
6. Use of the work, provided no objection has been raised.

The necessary rights to the photograph of the work of fine art must be acquired separately. However, these rights should generally be available, either from a picture agency or from the photographer him/herself.

III. Extended collective licenses of VG Bild-Kunst

Collecting societies are legally obliged to provide information that they are able to grant extended collective licenses (ECL) and which ECL they offer.

VG Bild-Kunst currently offers the following ECLs:

1. Social media image license:

The ECL covers the right of communication to the public (Section 15 (2) of the German Copyright Act (UrhG)) to service providers for the sharing of online content (so-called “social media platforms”) for works of the still image (works of fine art, photography, illustration and design) that non-commercial users of the service have uploaded and that they have not created themselves.

The following groups of rights holders are included in the ECL: Authors, their legal successors and picture agencies.

(Publication date: 26.09.2022)

2. Flat-rate contracts between ARD regional broadcasters and ZDF:

The ECL comprises the broadcasting right (Sections 20, 20a UrhG), the reproduction right (Section 16 UrhG) and the right of making available to the public (Section 19a UrhG) for the broadcasting use of works of visual art to the public broadcasters of the federal states that are members of ARD and ZDF.

The following groups of rights holders are included in the ECL: Authors and their legal successors.

(Publication date: 26.09.2022)

3. Cover uses Online library directories:

The ECL includes the right of making available to the public (Section 19a UrhG) including the necessary reproduction right (Section 16 UrhG) to libraries belonging to the German Library Association for works of fine art used on book jackets/covers as well as photographic works for retrieval via the libraries’ electronic directories.

The following groups of rights holders are included in the ECL: Authors and their legal successors.

(Publication date: 26.09.2022)

4. VG Bild-Kunst meets the legal requirements for offering the aforementioned extended collective licenses:

• With regard to the circumstances described above, VG Bild-Kunst is representative pursuant to Section 51b (1) VGG: This is because it administers these rights for a sufficiently large number of authors on the basis of the administration agreements concluded with its members and the representation agreements concluded with its sister societies.
• With regard to the circumstances described above, obtaining the rights for all third parties is unreasonable for the users of VG Bild-Kunst. Obtaining permission from every outsider in each individual case would be cumbersome and impractical to such an extent that it would be unlikely that the required license would be granted.
• The ECL of VG Bild-Kunst described above are limited to domestic uses.
• Pursuant to Section 51a (1) no. 4 VGG, third parties have at least three months prior to ECL licensing to object to the granting of rights to their works. As the first information about the planned ECL (described above) was provided on September 26, 2022, the three-month period has long since expired.
  
  

IV. Objection to extended collective license of VG Bild-Kunst

Third parties have the statutory right to object to the inclusion of their rights in an extended collective license of a collecting society. How this works is explained below.

1. Who cannot lodge an objection?

Members of VG Bild-Kunst or members of a foreign art or image collecting society cannot object to an extended collective license if they have already contractually granted their rights to the societies. Members have to terminate or partially terminate their collective management agreements instead.

2. Who can lodge an objection?

Authors, their legal successors and all those who hold derived exclusive rights of use are entitled to object to the extent that they

• have not concluded a rights administration agreement with VG Bild-Kunst or one of its foreign sister societies in the art or image sector and
• hold rights to works of fine art or the still image.

The objection must be declared to VG Bild-Kunst and is not bound to any form. It can be sent to the postal address, for example:

• The statement should indicate against which extended collective license of VG Bild-Kunst the objection is directed. If this information is missing or if the explanations are unclear or open to interpretation, VG Bild-Kunst assumes that the objection is directed against all extended collective licenses that are planned or in force.
  
• A clear reference in the subject line facilitates processing, for example “Objection to ECL” or “Objection to extended collective license”.
  
• In order to be able to clearly identify the objecting party, we require the date of birth and optionally the place of birth. If this data is not provided, we will also register the objection, but the objecting party bears the risk that the objection will not be heeded by the rights user due to identification problems. We cannot process the provision of an address or other data for the purpose of unique identification. They are also not useful because they can change over time.
  
• For evidence purposes, it may be useful to declare the objection to VG Bild-Kunst by post by registered letter with acknowledgement of receipt.
  

3. A distinction must be made between the following two cases regarding the effect of an objection:

a) Preliminary objection

Declaration of a general objection to any granting of rights of use irrespective of whether VG Bild-Kunst intends to conclude a specific collective license with extended effect or has already been informed of this.

b) Objection to a specific ECL within three months after VG Bild-Kunst has published corresponding information on its website.

In both cases, VG Bild-Kunst cannot grant an effective license for the works of the third party or third parties from the outset - any use of the work is not covered by the collective license with extended effect.

c) Contradiction thereafter

If the objection is made more than three months after the information has been published on the VG Bild-Kunst website, the granting of rights for concluded contracts shall lapse within a reasonable period with effect for the future. Uses made up to this point in time remain lawful; for the future, users must either refrain from using the works concerned or seek to acquire rights directly from the third party. The third party has a claim against VG Bild-Kunst for the lawful uses made in accordance with the respective provisions of the distribution plan to be taken into account in the distribution of income. This claim no longer exists for future uses of the work.

d) Note on data processing

By declaring their objection to VG Bild-Kunst, the objecting party automatically consents to VG Bild-Kunst storing their data (name, date and place of birth if applicable, subject of the objection) and passing it on to third parties (e. g. rights users who conclude an extended collective license; supervisory authority) who have a legitimate interest in gaining knowledge of the objecting party. If the objecting party requests the deletion of his or her data, this is automatically deemed to be a withdrawal of the objection.