Il licensing collettivo

Collective licenses are considered by the DSM directive in arti-cles 8-12. The directive provides for an extended collective licens-ing system (ECL system). The introduction of such a system is mandatory for the Member States in respect of the use of out of commerce works by cultural heritage institutions. Member States may also provide for such a system in defined areas of uses, where obtaining authorizations from rightholders on an individual basis is impractical. According to the ECL system, licensing agreements concluded by collective management organizations (CMOs) are ex-tended to the rights of rightholders who are not represented by the CMO: provided the organizations is sufficiently representative of rightholders in the relevant type of works, an equal treatment is guaranteed to all rightholders, and rightholders may at any time ex-clude their works from the licensing mechanism (opt-out clause). The ECL system has been originally introduced in the Nordic countries, and is traditionally considered as an instrument to lower transaction costs of licensing: when users are interested in the ex-ploitation of a vast repertoire of rights, individual licensing is ex-tremely onerous, and at the same time is inconceivable that every rightholder has mandated a CMO. An ECL fosters a wide and ex-tensive use of creative works, as licensees can reasonably be confi-dent they will not be responsible for acts of counterfeiting. The article suggests a different approach. According to this ap-proach, the ECL system appears essentially as an instrument to ne-gotiate and set a price for the value of cultural heritage. In such a system collective negotiations coexist with individual negotiations and two distinct markets are formed: a (non competitive) market of collective negotiations, where a price for a cultural heritage is set; and a (competitive) market of individual negotiations, where prices are set according to the market value of individual investments in creation and promotion of cultural works. The suggested “cultural heritage” approach makes the ECL sys-tem consistent with the Berne and WIPO conventions, at least to the extent that an opt out is guaranteed. Besides, this approach explains the reasons for legislative choices which would be inconsistent with the traditional “transaction costs” approach: namely the choice to allow only CMOs, and not independent management entities, to grant ECL. The cultural heritage approach is also consistent with the cross-border effects of ECL of out of commerce works, and with the principle that such licenses are granted only by organizations es-tablished in the Member State of the cultural heritage institution. At the same time, the “cultural heritage” approach suggested in the article offers valid solutions to interpret some (disputed) rules of the directive: such as the meaning of the “sufficiently representa-tive” requirement and the limit of the “well defined” area of use li-censed according to art. 12. A CMO should be deemed as suffi-ciently representative when it has sufficient market power to set the price of the cultural heritage in the absence of significant competi-tion of individual licenses offering. An area of use should be deemed as well-defined to the extent that the included uses show the same demand elasticity.