The out of commerce works system
Let’s first recap what the out of commerce works system is. The 2019 Copyright in the Digital Single Market (CDSM) Directive brought forward a legal solution for the digitisation and online dissemination of materials in the collections of cultural heritage institutions that are in copyright, but not in commercial circulation. Instead of asking each rightsholder for permission, the so-called ‘out of commerce works’ system allows institutions to conclude a licence with collective management organisations (CMOs). These organisations are legally given ‘extended’ representation to issue licences that cover all items at stake, and alternatively on an exception or limitation to copyright. Rightsholders can opt out via the EUIPO portal.
It’s on the basis of this legal system that a new memorandum of understanding has been concluded, which leads to Dutch institutions having a legal option to disseminate audiovisual heritage that is not in commercial circulation, even if it is in copyright.
Summary of the new memorandum
The Audiovisual Works Memorandum of Understanding (MoU) allows heritage institutions in the Netherlands to make nearly all out-of-commerce audiovisual works produced in Europe available online, at no cost. The agreement grants heritage institutions a non-exclusive licence to make such works available on heritage websites.
Even though it is not legally binding, it expresses a commitment from umbrella organisations on all sides of the discussion, including the one that would issue the licence, and thus paves the way for all cultural heritage institutions in the country.
Organisations and scope of the MoU
The MoU was established through collaboration between the Collective Management Organisation (CMO) for independent producers StOPnl, the association for the public broadcasters NPO and NOS, and heritage institutions EYE Filmmuseum, Beeld & Geluid and KVAN.
It's important to note that the agreement does not cover music works or pre-existing works that might appear in the audiovisual material if permissions were not obtained at the time of the audiovisual work's creation.
The agreement recognises StOPnl as the representative CMO for independent producers of cinematographic works and broadcast material. However, StOPnl is not representative for broadcast material without an independent producer. The broadcasters are the rightsholders. Due to the absence of a CMO for this group of creators, the fallback exception applies - that is, as established by the out of commerce works provisions, the publication of these works is possible without a licence. The cultural heritage sector representatives agreed upon some rules with the broadcasters on this category of works. They assume that broadcast material older than 25 years is considered out-of-commerce, unless it is demonstrably still being traded through customary channels of commerce. These customary channels of commerce have not been defined in the MoU, this is left up to the expertise of the heritage institution, who knows the material best.
Conditions agreed in the MoU
As with all out of commerce works, registration with the EUIPO portal and a mandatory six-month waiting period are required prior to publication. Heritage institutions must inform relevant producers that are known through StOPnl or through the broadcasters during this registration.
Finally, the MoU states how out of commerce works materials covered by the agreement should be presented. The work may only be presented for non-commercial purposes, with technical protection, such as the use of certain players, according to current standards, and must include the names of all relevant creators, producers, broadcasters, the work in its entirety, and a mention of this agreement. They are allowed to be published on all non-commercial Dutch heritage websites, including aggregators.
Find out more
You can find out more about the MoU on this page. If you would like to learn more about the issues raised in this post, we invite you to join the Europeana Network Association copyright community and to follow the work of the out of commerce works working group. You can learn more about the topic of out of commerce works by reading these FAQs and consulting this overview of the system by member state.