Charles River Associates (2014)
Contents
Source Details
| Charles River Associates (2014) | |
| Title: | Economic Analysis of the Territoriality of the Making Available Right in the EU |
| Author(s): | Charles River Associates |
| Year: | 2014 |
| Citation: | Charles River Associates, Economic Analysis of the Territoriality of the Making Available Right in the EU (2014). |
| Link(s): | Definitive , Open Access |
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| Cross Country Study?: | Yes |
| Comparative Study?: | No |
| Literature review?: | No |
| Government or policy study?: | Yes |
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Abstract
In the European Union, the protection of copyright and related rights is territorial in the sense that these rights are provided by national laws and their geographical scope is limited to the territory of the state granting them. As a result, enforcement of rights occurs on a country-by-country-basis. With respect to online on-demand uses of their creative works, authors of music and audiovisual works as well as holders of related rights enjoy an exclusive right of making their works available online to the public “in such a way that members of the public can access them from a place and at a time individually chosen by them”. In practice, online on-demand services also often involve a relevant act of reproduction of copyright protected works which entails the clearance of a second type of right, namely the reproduction right.
Some stakeholders have suggested that the current copyright regime makes the clearance of rights for cross-border online uses an unnecessarily complex as well as resource-consuming process. Multinational service providers indeed often have to negotiate required rights separately for several territories since licensing content on a territory-by-territory basis (territorial licensing) appears to be a common practice in Europe. This arguably raises barriers to cross-border online access and prevents the online sphere from realising the full economic potential associated with the borderless nature of the internet.
In this report, we take territorial licensing as consisting of rightholders exercising the territorial nature of copyright by limiting the geographical scope of the rights granted to licensee to a proper subset of EU Member States within a particular transaction. In line with this definition, the territorial nature of copyright is in itself not a sufficient condition for territorial licensing to take place. Indeed, the decisions of licensors to restrict the geographical scope of licences (i.e. to license on a territory-by-territory basis), are based on private motivations and depend on the wider institutional context, not only on the territorial nature of copyright. This report analyses the private motivations underlying the choice of territorial licensing in the current institutional framework in order, in a nutshell, to answer the following question: would a limitation to the practice of territorial licensing improve social welfare? The report focuses on two kinds of copyright-protected works, recorded music and audiovisual works.
