Extended collective licensing (ECL) according to sections 51 and 51a VGG (Collecting Societies Act)

For certain usage cases, VG Bild-Kunst intends to grant extended collective licences to users. Such a licence will not only grant users the usage rights for works of authors that it represents itself, but also for works of outside parties who have administered the relevant rights to any collecting society in Germany or abroad. 

In order to grant such extended collective licences, VG Bild-Kunst provides the following information in compliance with the requirements of sections 51a(1), no. 4(2) of VGG (Collecting Societies Act):

What is extended collective licensing?

VG Bild-Kunst obtains certain usage rights from its members to administer these rights by mandates. In addition, VG Bild-Kunst administers certain usage rights of members of foreign collecting societies in Germany, with which it has partnership agreements (representative agreements).

If users – a private individual, a company or an institution – wish to use individual or specific works by authors for which the rights are administered by VG Bild-Kunst, it grants specific licences for these works to the respective user. Especially if the users do not know– at the time of the conclusion of the contract– which works they are going to use, these licences cover the entire repertoire of the authors represented by VG Bild-Kunst in one type of work, e.g. works of fine art. These licences are then called collective licences or block licences.

As per VGG, a collecting society may, under certain conditions, extend a collective licence to authors whose rights it cannot license directly, because they have not entrusted their rights to a collecting society. The latter are called “outside parties” as per VGG. The extended collective licensing aims at granting the user the broadest possible permission to use the works from the creation class category that the collective licence relates to. At the same time, this implies that the clarification of rights with every single outside party would be unreasonable for the user, and therefore involves disproportionate effort and high costs. In addition, the extended collective licences may only be associated to usages in Germany.

What are the effects of extended collective licensing for outside parties?

If VG Bild-Kunst grants an extended collective licence, the outside party no longer has to give its expressive consent to the granting of rights for the use of their works. However, the outside party may object to the granting of rights at any time.

In relation to the collecting society, outside parties have the same rights and obligations as authors whose rights are administered by the collecting society. Thus, the collecting society must ensure that all authors for whose works it has granted an extended collective licence be treated equally: 

•     On the one hand, this means that the licensing conditions for works by outside parties must be the same as for the works of authors whose rights are administered by the collecting society. In particular, this means, that it may not price the usages of works by outside parties higher or lower than those of the authors it represents.

•    On the other hand, the collecting society may not distinguish between outside parties and non-outside parties when distributing the receipts by users as remuneration for the granting of rights. This means that the distribution plan of a collecting society that transparently stipulates the rules for the distribution of these receipts, must guarantee the same rules for all authors. If the distribution plan stipulates that the author must participate in the distribution, this obligation also extends to outside parties. In addition, any deductions that a collecting society may make under the distribution plan – primarily to cover its costs or also for social or cultural purposes – may be made to outside parties in the same amount as to members of the collecting society whose rights it represents.

Can VG Bild-Kunst grant extended collective licences?

Pursuant to section 51a (1) no. 4a VGG, a collecting society must inform that it is in a position to grant extended collective licences. VG Bild-Kunst hereby complies with this obligation (as of 26 September 2022):

•    Pursuant to section 51b (1) VGG, VG Bild-Kunst is representative for the granting of rights for the usage cases described in more detail below, which will be the subject of a collective licence. Due to the mandates concluded with its members and on the basis of the representative agreements concluded with its sister societies, VG Bild-Kunst administers these rights for a sufficiently large number of authors.

•    The collection of rights for all outside parties is unreasonable for the users of VG Bild-Kunst. Obtaining permission from every single outside party in each individual case would be difficult and impractical to such an extent that the required granting of the licence would be unlikely.

•    The intended granting of a licence by VG Bild-Kunst is limited to usages in Germany.

•    Pursuant to section 51a (1), no. 4 VGG, outside parties have at least three months to object to the grant of a licence with regard to their works. The intended granting of a licence for the usage cases described in more detail below will therefore not take place before 19 December 2022. 

In which situations is licensing needed?

In the following usage cases, VG Bild-Kunst intends to grant extended collective licences for domestic and foreign outside parties:

Social media image licence

• This relates to the right of public reproduction (section 15 (2) German Copyright Act (UrhG)), in particular the right of making works available to the public (section 19a UrhG), to service providers for sharing online content (i.e. “social media platforms”) for visual works (works of fine art, photography, illustration and design) which non-commercial users of the service have uploaded and which they have not produced themselves.

The extended collective licence includes the following groups of right holders: Authors and their legal successors as well as picture agencies.

(Release date: 26 Sep 2022)

Flat-share agreements between ARD state broadcasting corporations and ZDF

• This relates to the broadcasting right (sections 20, 20a UrhG), the reproduction right (section 16 UrhG) and the right of making works available to the public (section 19a UrhG) for broadcasting usage for works of fine art to public broadcasting stations of the German federal states (Landesrundfunkanstalten) which are part of ARD, as well as ZDF.

The extended collective licence includes the following groups of right holders: Authors and their legal successors.

(Release date: 26 Sep 2022)

Cover usage online library directories

• This relates to the right of making works available to the public (section 19a UrhG), including the necessary reproduction right (section 16 UrhG), to the libraries belonging to Deutscher Bibliotheksverband (German Library Association) for works of fine art and photographic works used on book covers for retrieval via the libraries’ electronic directories.

The extended collective licence includes the following groups of right holders: Authors and their legal successors.

(Release date: 26 Sep 2022)

Right of objection for outside parties (section 51 (2) VGG)

Any outside party affected by extended collective licensing has the right to object to the granting of rights to the collecting society at any time. Authors and their legal successors as well as the holders of derived exclusive usage rights are entitled to object. There are two types of objections with different legal consequences:

•    “Ex ante objection”: Either an outside party declares their general objection to any grant of usage rights, regardless of whether VG Bild-Kunst intends to conclude a specific extended collective licence or has already informed about it. Or the outside party declares their objection within three months after VG Bild-Kunst has published a corresponding information on its website. In both cases, VG Bild-Kunst cannot grant an effective licence for the works of this outside party from the outset. Any uses of the work(s) are not covered by the extended collective licence. 

•    “Ex post objection”: If the objection is made after more than three months have elapsed since the information was published on the website of VG Bild-Kunst, the granting of rights in the case of concluded contracts shall lapse within a reasonable period of time, and is effective for the future. Usages up to this point remain lawful. For future usages, the user must either refrain from using the respective works or seek to acquire rights directly from outside parties. The outside party has a claim against VG Bild-Kunst for their share of the remuneration paid for the lawful uses, the amount and conditions of which are determined by the distribution plan of VG Bild-Kunst. This claim no longer exists for future uses of the work. The outside party or outside parties must then make their own efforts to seek licensing via the platform or to have the use of these works blocked on the platform.

The objection must be declared to VG Bild-Kunst and is not bound to any form. It can be mailed to the postal address (VG Bild-Kunst, Weberstr. 61, 53113 Bonn) or sent via email (widerspruch@bildkunst.de).

I am neither a member of VG Bild-Kunst nor of any other partner collecting society of VG Bild-Kunst and wish to object.

In order for an objection to be recognized as such and for VG Bild-Kunst to be able to communicate it meaningfully to the corresponding right holders, we ask to observe the following when sending an objection:

•    The statement of the objecting party should indicate which extended collective licence of VG Bild-Kunst they are objecting to. Should this piece of information be missing or if statements are unclear or open to interpretation, VG Bild-Kunst assumes that the objection refers to all extended collective licences that are planned or put into effect.

•    A clear indication in the subject line facilitates processing, e.g. “Objection to extended collective licence”.

•    In order to be able to clearly identify the objecting party, we require the date of birth and, optionally, the place of birth. Without this information, we will also register the objection. However, the person objecting bears the risk that the objection will not be taken into account by the rights user due to the fact that he or she cannot be identified. We cannot process any address or other data given for the purpose of unique identification. These indications are also not helpful since they can change over time.

•    For purposes of proof, it may be useful to declare the objection to VG Bild-Kunst by post as a registered letter with return receipt.

Note on the processing of data:

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