Article 7-8-9 – Out of Commerce Works

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A GOOD out-of-commerce works provision

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Provides a hybrid solution

An out-of-commerce works provisions that maximises access for Europeans and opportunity for European creators should be based on hybrid licence and exception model. Such an exception would only come into play when no licence is available. This ensures that institutions are guaranteed access to out-of-commerce works, whilst incentivising collective management organisations (CMOs) to be established and to offer workable licences.

Is based on a practical definition of out-of-commerce works

  • Never in commerce: Copyright also applies to papers, photos, recordings and other materials which were never created with the aim of being commercialised in the first place (‘never-in-commerce’ works). They should be included under what is considered out-of-commerce works. 
  • “In all its translations: Not all translations should be out-of-commerce before a work gets this status.
  • Reasonably expected to become available again: This should not be a condition in the definition, since this assumption is impossible to make, and libraries and cultural heritage institutions (CHIs) are not able to predict the future.

Includes third country national works

Clearance of rights would become a lot simpler if works by third country nationals were not excluded from the system, for instance in cases where a work contains several works.

A BAD out-of-commerce works provision

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Based only on licensing solutions

There are many cases where Member States do not have collecting societies representing all types of works, or a CMO exists but is not be deemed to be sufficiently representative of right holders for a particular category of work. That would mean that no solution is in place for those works. 

Narrow definition of OOCW

  • Never in commerce: If they are not considered under the definition, a large amount of heritage will be kept locked away from the public.
  • “In all its translations”: Not all translations should be out-of-commerce before a work is considered to have this status. Otherwise, many works may be excluded despite not being substitutable for the original – for example if a work is commercially available in its German version but not in its Slovenian one, it is unlikely that a German consumer would use a digitised version of the Slovenian text rather than buying a German-language copy.
  • Reasonably expected to become available again: There is too much legal uncertainty around such an assumption, and it will make the system a lot more complex if needs to be done before a work is considered to be out-of-commerce.

Use of OOCW dependent on existence of representative, well-governed CMOs

A CMO may be able to offer licenses to certain beneficiaries for certain uses, but may choose not to offer cultural heritage institutions licences for disseminating works or other subject matter online. This may, in particular, be the case for uses in other countries, where a CMO may choose not to grant a licence for uses in other parts of the EU.

Third country national works excluded

Excluding works by nationals of third countries from the provisions is a challenge in that a single work may have many different rightholders, notably for photos, designs, and other artistic contributions above and beyond simple text. When the work is produced in a major world language, information on the nationality of individual rights holders may simply not be available. As a result, excluding works by non-EU nationals is impractical.