Posted on Tuesday September 27, 2022

Updated on Tuesday October 11, 2022

Out of Commerce Works FAQs: stakeholder dialogues

Explore these FAQs to gain a better understanding of the out of commerce works system, specifically questions related to stakeholder dialogues for the Copyright in the Digital Single Market Directive.

Out of Commerce Works are materials in the collections of cultural heritage institutions, most likely protected by copyright, and no longer in commercial circulation. In mass digitisation projects, clearing rights to make these materials available online is often complex to an extent where it can become prohibitive.

In order to avoid a situation in which they are locked away from online access, the Copyright in the Digital Single Market (CDSM) Directive created a legal solution so that cultural heritage institutions (CHIs) from across the European Union could share these materials online legally without having to ask for permission on an item by item basis. The out of commerce works provisions in the CDSM Directive are an key opportunity for many cultural heritage institutions to overcome one of their most important copyright problems.

Members of the Europeana Working Group on Out of Commerce Works have developed FAQs to help readers gain a better understanding of the various characteristics of the out of commerce works system, so that you can successfully share more out of commerce works available online. The FAQs below cover questions related to stakeholder dialogues in the Copyright in the Digital Single Market (CDSM) Directive. You can also explore questions related to the CDSM Directive and its transposition; its key concepts; and the OOCWs system in practice.

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What are the stakeholder dialogues?

Article 11 and recital 42 of the CDSM Directive state that governments must, ‘consult rightholders, collective management organisations and cultural heritage institutions in each sector before establishing specific requirements (...)’ in the area of out of commerce works.

These stakeholder dialogues should be prompted by each national government, most likely after the completion of the transposition of the Directive. They should be sector-specific (various dialogues should run in parallel) and should have representation from the cultural heritage sector, collective management organisations, and rights holders.

According to the Directive, these dialogues should be used to agree on possible best practices to determine what materials are out of commerce; ensure the relevance, adequacy of terms and publicity of licences; and provide legal certainty with regard to the representativeness of collective management organisations and the categorisation of works.

You can read more about the stakeholder dialogues in the questions that follow, in this post, as well as in the IFRRO guide, the Communia guidelines and the Guide for Libraries and Library Associations by EBLIDA, IFLA, LIBER and SPARC Europe.

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What is a good setup for the stakeholder dialogues, and who should participate?

The Directive establishes that stakeholder dialogues need to be sector-specific. Breaking up stakeholder dialogues into groups also makes them more manageable. For example, there can be dialogues on written works, audio (phonograms), audiovisual works, photographs, visual artworks, databases and software. There is no indication on the regularity or the duration in time of these dialogues, or the specific outcome that should be foreseen. 

As pointed out in the question above, each dialogue should at least have representatives from cultural heritage institutions, collective management organisations (if existing) and rights holders. The cultural heritage sector could be represented by sectoral institutions or can consider appointing a person from a specific institution. The person involved should have a strong copyright knowledge and/or knowledge on the practical implications of the decisions that might be made at the stakeholder dialogues. 

The Directive does not preclude the possibility of inviting other types of organisation who can provide additional insight and enrich the discussion, for example into how the commercial exploitation of a type of work works. 

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If a government has not set up stakeholder dialogues even though the Directive has been transposed, how could cultural heritage institutions prompt these dialogues?

Setting up stakeholder dialogues is an obligation for all member states, as set forth in the CDSM Directive’s article 11. If governments do not initiate this process, cultural heritage organisations should approach their representatives to encourage the organisation of stakeholder dialogues. 

If this does not succeed, cultural heritage institutions could still seek to make progress by approaching collective management organisations and rightsholder representatives directly in situations in which it is clear that they are likely to be sufficiently representative. Through an informal dialogue with these organisations, important information can already be exchanged – including in relation to the licensing of future digitisation projects - and consensus can be sought. Such an approach, that would not preclude an agreement being made under formal, government-organised stakeholder dialogues, would help to advance work on digitisation projects and provide some legal security to cultural heritage organisations.

These FAQs have been developed by members of the Europeana Working Group on Out of Commerce Works. They were first published in September 2022. The aim of the working group is to continuously review these questions and recommendations in the answers. For any comments or suggestions, please reach out to copyright@europeana.eu

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).

Disclaimer: The International Federation of Reproduction Rights Organisations IFRRO is an active member of the Europeana Out of Commerce Works working group, has made an important contribution to the discussions, including for the development of these FAQs, and closely cooperates 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.

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