The FAQs below cover questions related to the transposition of the Copyright in the Digital Single Market (CDSM) Directive. They have been developed by members of the Europeana Working Group on Out of Commerce Works.

Can a cultural heritage institution rely on the out of commerce works solution for materials from outside of the European Union?

While the Directive refers to out of commerce works as being materials that are not in commerce and that are part of the permanent collections of a cultural heritage institution, sets of materials for which there is ‘evidence available to presume that they predominantly consist’ of materials of countries from outside of the European Union are excluded.

More specifically, the Directive excludes:

• Out of commerce works, other than cinematographic or audiovisual works, first published or first broadcast outside of the European Union;
• Out of commerce cinematographic or audiovisual works, of which the producers have their headquarters or habitual residence outside of the European Union; and
• Out of commerce works of non European Union nationals. In the book sector, it will cover many books published in the EU, solutions should be found with CMOs.

This exclusion does not apply if the out of commerce work is used under the licence and the collective management organisation in the country in which the cultural heritage institution is located can sufficiently represent that third country, for example because a representation agreement has been concluded. As a result of the logic described in the Directive, it should be understood that the exception would not apply in this case.

The exclusion applies to ‘sets predominantly consisting of materials from’ outside of the European Union. Sets that contain works from outside of the European Union, but where the majority of the materials are from within the European Union, can be used under the out of commerce works provision. However, in certain circumstances, materials are individually used and not as part of a set. In this case, and even though the Directive does not address this question in particular, the logic of the Directive would seem to point at excluding materials from third countries when evidence of that is available.