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2 minutes to read Posted on Monday March 18, 2024

Updated on Monday March 18, 2024

portrait of Ariadna Matas

Ariadna Matas

Policy Advisor , Europeana Foundation

More out of commerce works available - but a long road ahead

The out of commerce works ‘legal solution’ removes the obligation for cultural heritage institutions to ‘clear copyright’, item by item, in materials that are not in commercial circulation. The positive results of such a system are starting to be visible but some challenges remain for it to be truly successful. Find out more about the state of play and about the Europeana Initiative’s engagement.

A landscape dominated by mountains and oak trees
Landschaft mit Eichen
Martin von Molitor (Künstler_in)

Five years of the CDSM Directive

In 2019, the Copyright in the Digital Single Market (CDSM) Directive obliged all European Union Member States to change their copyright legislation to adopt the out of commerce works legal solution. Member states have been doing so ever since, with some completing the so-called transposition process at an early stage, enabling the enjoyment of this legal solution by cultural heritage institutions before the deadline of June 2021.

Today, cultural heritage institutions in almost all European Union member states can benefit from the out of commerce works legal system as a legal basis to publish certain materials online.

Who is using the solution?

So far, over 1,725,000 cultural heritage items have been declared through the out of commerce works portal run by the European Union Intellectual Property Office (EUIPO). This portal provides a good understanding of the materials that are and will be made available online, given that their declaration through this portal six months prior to using them is mandatory.

Literary works are the type of material that has been declared the most (1,659,768 records in the portal), followed by works of visual arts (36,423 records in the portal), audiovisual or cinematographic works (28,866 records in the portal) and phonographic works (32 records in the portal).

These materials are in the collections of cultural heritage institutions from various countries. Slovakia, and in particular the Slovak National Library, has declared a total of 1,060,217 records, the highest number so far. It is followed by Czech Republic (600,208 records from the National Library), Germany (38,451 records from 11 different institutions, one of which is a collective management organisation, in this case responsible for submitting the data to the portal), Estonia (11,063 records from the National Library and the University of Tartu Library), Hungary (13,877 records from seven institutions), Austria (737 records from three institutions), The Netherlands (347 records from six institutions), Finland (137 records from the National Library) and Croatia (two records from the University of Zagreb).

Encouraging but insufficient

While it is encouraging to see the system being used, the results could and should be much higher. One national library alone has declared more than half of the items, making the remaining number almost insignificant compared to the millions and millions of out of commerce works that sit in the collections of cultural heritage institutions.

Two years have passed since the deadline for the transposition of the CDSM Directive (June 2021), the date in which this solution was supposed to be functional in all European Union Member States. However, only thirty-three institutions in nine countries have started relying on (or testing) the system.

There might be various reasons behind the limited number of works declared in the EUIPO portal. The delay in the transposition for many of the countries is one of them. In addition to that, most countries have not yet started organising stakeholder dialogues, which should bring clarity to various grey areas in the system. In some countries (such as Belgium and France) a Decree developing the details of the system is pending. As long as this legal uncertainty remains, using this system will not be an option for most cultural heritage institutions.

Some institutions have also experienced challenges with the EUIPO portal. In February this year, on the occasion of the EUIPO’s consultation on their five-year strategy, we sent a letter to the EUIPO Executive Director expressing concerns regarding resource allocation to the portal, alongside the Bibliothèque Nationale du Luxembourg, the Conference of European National Librarians (CENL), COMMUNIA Association for the Public Domain, the Federation of European Publishers, the International Federation of Library Associations and Institutions, the International Federation of Reproduction Rights Organisations, Knowledge Rights 21, KVAN (Association for the Archive Sector in the Netherlands) and the National Library of the Czech Republic.

Last but not least, there is probably a lack of awareness of the existence of this legal solution. Correcting this might take time, and the Europeana out of commerce working group is working to address this.

Read more about this topic

If you want to learn more about this topic, check the various resources created by the Europeana out of commerce works working group.

You can also join the Europeana Network Association Copyright Community to stay up to date with developments in this area.