Numerous collections and archives in Switzerland hold copies of works, often in physical form, sometimes as digital copies, and the organization responsible for the collection would like to make this cultural heritage accessible to the public.
In the past, such opening of archives was prevented by the fact that the authors of texts and the authorized distribution organizations for audiovisual works are no longer known or can no longer be found.
For this situation, the new Art. 43a CopA provides that a collective management organization such as ProLitteris may grant a generally valid license. It has a specific scope of application, in terms of subject matter and time. In its 2017 dispatch, the Federal Council mentioned a poster collection. Let us work through a practical example.
1. If the collection consists of fewer than 100 copies of works, it is reasonable to research the rights and obtain individual consent. This clarification may be limited to following a checklist formulated in the Common Tariff 13 of ProLitteris. According to the tariff, the license costs per object are CHF 5, 10 or 100 per year depending on size, for each use (online, offline etc.). There is a favorable bundle: the low-priced flat fee covers all types of use for 10 years, with a 75% discount.
2. If the collection consists of more than 100 copies of works, but the research is disproportionate or hopeless, ProLitteris can offer an extended collective license. In this case, the collection may include orphan and non-orphan works side by side. The license costs for up to 1000 copies of works usually correspond to Common Tariff 13 for orphan works, that is, for 10 years and all types of use for 1000 objects CHF 1000 per year for standard formats, and in the extreme example of 1000 large formats (posters) CHF 20000 per year. A surcharge of 20% applies if the user of the works is not the holder of the collection, but for example a commercial company or a private individual.
3. The extended collective license goes one step further if there are more than 1000 copies of works: large archives and collections with many thousands of objects. For this opening of archives, ProLitteris offers an additional discount. The extended collective licenses of ProLitteris for memory institutions to date are based on the following royalty model (subject to deviations):
- The price for the first 1000 copies of works corresponds to the tariff for orphan works, that is, for a 10-year license and objects in standard size CHF 1 per copy of a work per year.
- For the next 9000 copies of works, the concept reduces the price per object to CHF 0.10. In this way, the intention of the legislator to enable large openings of archives as well is implemented.
- For very large collections with more than 10000 copies of works, an additional discount for additional quantities is conceivable, a) if a substantial part of the collection is not (or no longer) protected by copyright, or b) if most rights may be used free of charge under a statutory limitation, c) if the rights have already been obtained individually for this purpose, or d) if it is an insignificant use without any relevance for the normal exploitation by the rightsholders. In such constellations, the insurance effect of the collective license becomes apparent: for the licensed uses, you no longer have to deal with legal distinctions and interpretations. Outside these special cases, the license costs for all objects are identical from a number of 1000 onwards.
On this basis, ProLitteris is developing a standard offer for the opening of archives and collections. We reserve the right to deviate from this in contracts and to remain flexible so that individual cases can be taken into account. The collective management organizations have a statutory margin of discretion to agree on reasonable and economically viable solutions. Appropriate royalties prevent opt-out declarations by rightsholders; such declarations have been extremely rare to date. The proceeds from orphan works and extended collective licenses have so far been low and not a «business», because ProLitteris distributes the royalties in full to the authors and publishing houses.
Are you interested in an extended collective license or would you like to use orphan works? Do you have input on the royalty model? Please contact us via info@prolitteris.ch or in the chat on the ProLitteris website.