Background

The Copyright in the Digital Single Market (CDSM) Directive created a legal solution so that cultural heritage institutions (CHIs) from across the European Union can share out of commerce works (OOCWs) online without the need to ask rights holders for permission. The aim is to solve the problem of the 20th century blackhole - the very low number of 20th century material available because of the difficulty to clear rights to publish these works online.

The OOCWs provisions in the CDSM Directive are an important opportunity for many cultural heritage institutions to overcome one of their most important copyright problems.

However, some challenges stand in the way of its success. These mainly consist of a lack of awareness of the OOCWs provisions; a general distrust on how much the OOCWs solution can help, given that this legal solution’s predecessor (the Orphan Works Directive) was difficult to rely on; insufficient knowledge on the legal and practical details to make use of the OOCWs provisions and some uncertainty due to questions that come up progressively (for example, on the use of the exception or the licence, or the availability and negotiation of licences with collective management organisations (CMOs)).

The out of commerce works solution explained

The out of commerce works provisions in the Copyright in the Digital Single Market (CDSM) Directive are an important opportunity for many cultural heritage institutions to overcome one of their most important copyright problems.

Thanks to this system, cultural heritage professionals do not need to ask every rightsholder for permission to clear copyright in certain types of materials. Because of the simplicity it offers, it is worth exploring this solution in mass-digitisation projects.

The ‘out of commerce works’ system is for cultural heritage professionals looking for ways to legally share collections online, for materials that are in copyright, and whose rights are difficult to clear. The institutions need to be based in the European Union or in the European Economic Area.

By out of commerce works, the legal system refers to materials that are commercially unavailable, such as films that were once distributed and no longer available, or archival material that was never available in commerce.

As a result of using the out of commerce works system you’ll be able to make copies of the materials in question, and to share them online. Depending on the specificities in your jurisdiction, you might be able to also distribute the materials, or to post them only on certain websites.

Before using the system, you’ll have to go through a few steps.

• You will have to double-check, to a reasonable extent, that the materials are indeed not in commercial circulation.
• You might also need to obtain a licence through a collective management organisation; they are entitled to grant licences for materials that are not in their repertoire, so they can give you the ‘copyright clearance’ you need.
• Finally, you will have to declare the material through a portal and wait six months before making them available online. If a rightsholder comes forward, you will have to take the materials down.

This system was adopted because of the difficulty faced by cultural heritage institutions in clearing copyright, resulting in the public missing out on valuable heritage, in particular from the 20th century. The Copyright in the Digital Single Market (CDSM) Directive created this legal solution, and all European Union member states have adapted it to their national legal systems.

Use our FAQs

Europeana's Out of Commerce works Working Group developed a number of FAQs related to the transposition of the Copyright in the Digital Single Market (CDSM) Directive; key concepts in the CDSM Directive; stakeholder dialogues; the system in practice; and territoriality. The choice of questions was guided by the most pressing questions of members of the working group. They were first published in September 2022. For any comments or suggestions, please reach out to [email protected] and discover them in full below!

-

The information in the FAQs should not be used as professional or legal advice (if you need specific advice, we recommend consulting a suitably qualified professional).

The International Federation of Reproduction Rights Organisations (IFRRO) and the Federation of European Publishers (FEP) are an active members of the Europeana Out of Commerce Works working group, have made an important contributions to the discussions, including for the development of these FAQs, and closely cooperate with Europeana on raising awareness within their respective memberships about out of commerce works. There are however divergences of opinion on some of the content, including certain advocacy and policy recommendations described in the FAQs.

Implementations across European Union Member States

The Out of Commerce Works Working Group produced a document which provides an overview of how the out of commerce works provisions have been transposed and implemented in each European Union member state. It focuses on questions such as the state of the transposition and of the stakeholder dialogues, the representative collective management organsations, or additional conditions not foreseen in the Directive.

The document is maintained and regularly updated. If you have any questions or additional information, please reach out to [email protected].