Out of Commerce works Working Group

Background

The Copyright in the Digital Single Market (CDSM) Directive created a legal solution so that cultural heritage institutions (CHIs) from across the European Union can share out of commerce works (OOCWs) online without the need to ask rights holders for permission. The aim is to solve the problem of the 20th century blackhole - the very low number of 20th century material available because of the difficulty to clear rights to publish these works online.

The OOCWs provisions in the CDSM Directive are an important opportunity for many cultural heritage institutions to overcome one of their most important copyright problems.

However, some challenges stand in the way of its success. These mainly consist of a lack of awareness of the OOCWs provisions; a general distrust on how much the OOCWs solution can help, given that this legal solution’s predecessor (the Orphan Works Directive) was difficult to rely on; insufficient knowledge on the legal and practical details to make use of the OOCWs provisions and some uncertainty due to questions that come up progressively (for example, on the use of the exception or the licence, or the availability and negotiation of licences with collective management organisations (CMOs)).

Goal

The aim of the working group is to encourage the use of the OOCWs provisions, and more specifically to raise awareness of the availability of the OOCWs provisions, to take a coordinated approach into addressing certain challenges and questions, and to build capacity and confidence in interpreting and using (the legal and practical aspects of) the OOCWs provisions.

The Working Group has developed a number of FAQs related to Out of Commerce Works, which you can explore below. They cover questions related to the transposition of the Copyright in the Digital Single Market (CDSM) Directive; key concepts in the Directive; stakeholder dialogues; and the system in practice.

The choice of questions has so far been guided by some of the most pressing questions gathered via the members of the group and through conversations of practitioners from across various countries. They were first published in September 2022.

The out of commerce works working group will 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).

The International Federation of Reproduction Rights Organisations (IFRRO) and the Federation of European Publishers (FEP) are an active members of the Europeana Out of Commerce Works working group, have made an important contributions to the discussions, including for the development of these FAQs, and closely cooperate 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.