Digitizing and making available Out-of-Commerce Works
University libraries are included in the great variety of Cultural Heritage Institutions (CHIs) that exist in Europe. The 2019 Copyright in the Digital Single Market (DSM) Directive has created new legislation that enables European CHIs like (university) libraries, museums and archives to digitize and make available Out-of-Commerce Works in their permanent collections (arts. 8-11 DSM). This new legislation improves the ways CHIs can share their rich cultural heritage with Europe and the world.
The provisions in the DSM Directive arrange a framework for making available Out-of-Commerce Works as well as works that have never been in commerce.
Art. 8.1 of the DSM Directive permits Collective Management Organisations (CMOs) to “conclude a non-exclusive license for non-commercial purposes” with CHIs “for the reproduction, distribution, communication to the public or making available to the public of out-of-commerce works or other subject matter that are permanently in the collection of the institution”. As part of the process, the digitized Out-of-Commerce Works that CHIs wish to place online need to be registered on a publicly accessible website run by the EUIPO for a period of six months. During this period copyright holders may opt out from having their works placed online. When no opt-outs are made, the CHI may place digital copies of the relevant collection items online on a non-commercial website.
However, article 8.2 of the DSM Directive provides a fall-back exception for works where the relevant CMO is not (sufficiently) representative for the category of rightholders and of the rights concerned. It states that the CMO, on the basis of its mandates, must be “sufficiently representative of rightholders in the relevant type of works or other subject matter and of the rights that are the subject of the licence”. Where the CMO is not sufficiently representative of the category of rightholders in the relevant category of works, the CHI cannot conclude a license, and therefore the CHI registers the works directly with EUIPO, thereby still making copyright holders aware of its intentions to make the works available online.
With more and more EU/EEA member states having implemented the DSM Directive, governments have started the stakeholder dialogue on out-of-commerce works as expressed by art. 11 DSM Directive. In a number of countries there is discussion about the representativity of CMOs for certain categories of works.
LIBER’s position regarding works never in commerce
LIBER is convinced that CMOs are not, and should not be, representative of the makers of works that have never been in commerce and/or were never intended to be in commerce. These types of works include the vast majority of unpublished works, grey literature, amateur photography and certain expressions of traditional culture. For these types of works the exception of article 8.2 DSM Directive should apply.
CMOs represent only the makers of works that are, or at one time have been, in commerce. This corresponds to the types of statements on the CMOs own websites, which express CMO representation of professional makers/creators who earn their living from their works. They have no mandate from makers whose works were never intended to be in commerce and subsequently never have been in commerce. As custodians of many different types of works and as disclosers of valuable collections to the world we are concerned that the inappropriate commercialisation of such works by CMOs will prevent CHIs from fulfilling their public duty to the full and will severely limit online access to so much of our cultural heritage and our history.
Therefore, LIBER urges governments of the member states to define representativity as outlined above. This will create a balance between the interests of rightholders and those of European Cultural Heritage Institutions who work not for any financial gain or profit, but for the publication and dissemination of their collections to the world and for all eternity.
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