Digital Single Market Directive – Articles 8-11: Checklist for Determining When The Exception for Mass Digitisation of Out-of-Commerce Works Can Be Used

Articles 8-11 of the Digital Single Market Directive introduce a ‘hybrid exception’ to copyright. The exception allows libraries and other cultural heritage institutions to digitise and place their published and unpublished out-of-commerce (OOC) works online — once these works have been ‘advertised’ for at least six months on the EU Intellectual Property Office’s website, in order to check their commercial availability

The exception only applies when no collecting society — also known as a Collective Management Organisation (CMO) — exists which is sufficiently representative of creators in the sector of the works intended for digitisation. Even if CMOs do exist and are representative of creators in the sector, they must also have the rights to allow cultural heritage organisations to make OOC works available across the open web. If they do not, the exception can still be used.

In summary the exception can be used if:

• There is no CMO representing the type of work intended for digitisation; or
• The CMO is not viewed by government as being representative of the type of work intended for digitisation; or
• They are representative of the works but are unable to offer a library a licence which allows them to put their OOC works on the open web.

Please note: if the collecting society can legally offer a licence to a library for this purpose but decides not to do so, the exception cannot be used.

LIBER’s Copyright & Legal Matters Working Group — along with colleagues at IFLA and EBLIDA — anticipate that one of the most important aspects of the new exception for mass digitisation is to establish when it can be used, and when it cannot. In other words, it will be vitally important to discuss in stakeholder dialogue with government which types of works, for what period of time, and in what languages a collecting society is deemed representative.

Generally collecting societies tend to represent commercially published works, and are therefore potentially less representative of materials not produced for profit such as grey literature / ephemera, and works which were never published.

To aid this discussion, we have produced a checklist which categorises in-copyright materials into the types of works your institution may want to digitise. We recommend that you go through this checklist in stakeholder dialogue establishing whether or not a CMO is representative enough to offer a licence for the purposes envisaged by Articles 8-11 for each and every work-type.

Under the 2014 Directive on Collective Management of Copyright and Related Rights, libraries and other cultural heritage organisations also have the right to be supplied with information as to what type of works collecting societies represent and what licences they can or cannot offer in regards to those licences.

We believe that establishing when the exception or a licence has to be used needs to be established quickly, transparently and clearly and advise that this is addressed as soon as possible in stakeholder dialogue regarding Articles 8-11.