Out of Commerce Works FAQs: the system in practice

Whenever a sufficiently representative collective management organisation for the type of materials and rights in question exists, cultural heritage institutions should seek to obtain a licence from the collective management organisation in order to make the out of commerce works available online. It is therefore very likely that many cultural heritage institutions will have to enter into negotiations with collective management organisations for the dissemination of certain collections. In addition, the Directive clarifies that ‘a lack of agreement on the conditions of the licence should not be interpreted as a lack of availability of licensing solutions’, that is, the fact that the licence negotiations are not successful does not remove the obligation from having to obtain a licence. It is therefore essential for cultural heritage institutions that the licence negotiations lead to a positive outcome.

In order to do that, it is important to:

• Enter the negotiations with a constructive mindset, leaving aside the belief that the conclusion of the licence might be unfair. 

• Presume that the collective management organisation understands and is willing to support the cultural heritage institution’s mission and will not enter negotiations in bad faith. 

• Determine, ahead of the meeting, the concrete outcome expected, including the best-case and worst-case scenarios. Have clarity on whether you seek a licence for a very specific collection, or to initiate a negotiation for many collections and therefore understand the possible fees.

• If the focus of the licence is on a specific collection, be familiar with its size, the type of materials that it is made of, the commercial ‘stakes’ that rights holders might have, how the materials are generally distributed and how long the commercial lifespan of the items generally is.

• Familiarise the collective management organisation with the nature of the collection. 

The Directive specifies that when concluding licences for out of commerce works, CHIs and collective management organisations “should remain free to agree on the territorial scope of licences, including the option of covering all Member States, the licence fee and the uses allowed”. For cultural heritage institutions, it is also important to make sure that the text of the licence provides clarity on the following aspects:

• The materials covered, that is, the identification of the collections, and for example an acknowledgement that public domain materials are outside of its scope.

• The type of exploitation authorised, which should at least foresee what is allowed by the Directive and the national law. In principle this includes reproduction, distribution, communication to the public or making available to the public via non-commercial websites. You could envisage having a clear identification of the websites through which the materials can be shared, e.g. the institutional website, a national aggregator and Europeana.

• The duration of the licence.

• A clarification that the licence is non-exclusive.

• The territorial scope of the licence. 

• The fees to which the exploitation of the materials are subject. Different approaches to agreeing fees are possible, including for example a fee per usage of the work, a lump sum for as long as the materials are out of commerce and in copyright, or a yearly indexed fee, for example. If regular payments are a burden on a cultural heritage institution, it is possible to instead aim at a one-time payment. The fee should be adapted to the nature of the works (e.g. whether they are more “recently” published or not).

You can read more about the conclusion of licences for out of commerce works in the IFRRO guide.

According to the Directive, the licences ‘are to be sought from a collective management organisation that is representative for the Member State where the cultural heritage institution is established’. This is also the case in situations where the cultural heritage institution plans to make available online works from other countries. In this case, they can approach the national collective management organisation who can in turn liaise with a collective management organisation in the other Member State. Some collective management organisations are currently considering how to make this process easy and simple. 

The Directive establishes that all rights holders should be able to exclude their works from being used in the context of the out of commerce works system, and that this should be possible ‘at any time, easily and effectively’. Rights holders should be able to opt out ‘in general or in specific cases’ and that includes ‘after the conclusion of a licence or after the beginning of the use concerned’.

It is mandatory to share information about the dataset that the cultural heritage institution wants to make available to the public at least six months before that happens via the EUIPO out of commerce works portal. The cultural heritage institution can share information about the data via the EUIPO portal anytime, including before a licence has been concluded with a collective management organisation. 

Sharing this information via the portal serves as a publicity measure so that rights holders have the opportunity to become aware of the intention of the cultural heritage institution and opt-out of the intended use if they wish to. 

Information about the functioning of the portal, including user guides, are available in this page. 

When sharing out of commerce works online after having obtained a licence or under the terms of the exception, the cultural heritage institution might want to share rights information alongside the item for users to understand if and to what extent they can use the materials. This becomes even more important when sharing the collections through aggregators like Europeana, where the use of a standardised rights statement is mandatory.

Given that out of commerce works are protected by copyright, a suitable amongst the existing rights statements by the Rights Statements Consortium is the In Copyright rights statement. If the rightsholder is unknown, the In Copyright - Rights-Holder(s) Unlocatable or Unidentifiable statement could also be suitable, although it should be noted that it is currently not supported when aggregating data with Europeana. Even though the Rights Statements Consortium developed a specific statement for orphan works, there are no public plans by the Rights Statements Consortium to develop an equivalent statement for out of commerce works at the moment. 

While according to the Directive the cultural heritage institution can share the item online but cannot authorise any further reuse, it should be noted that users of digital cultural heritage might be able to benefit from exceptions to copyright through which they can use this material, for example for citation purposes, research or teaching.