Out of Commerce works Working Group

This Working Group provides a space to exchange information and recommend approaches to successfully use the legal solution to make out of commerce works available online.

Posted on Wednesday April 20, 2022

Updated on Thursday March 9, 2023

About

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.

FAQs on Out of Commerce Works

The out of commerce works working group has developed a number of FAQs related to the transposition of the Copyright in the Digital Single Market (CDSM) Directive; key concepts in the CDSM Directive; stakeholder dialogues; the system in practice; and territoriality. The choice of questions is guided by the most pressing questions of members of the working group. They were first published in September 2022. The 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.

Implementations across European Union Member States

The Out of Commerce Works Working Group has produced a document which provides an overview of how the out of commerce works provisions have been transposed and implemented in each European Union member state. It focuses on questions such as the state of the transposition and of the stakeholder dialogues, the representative collective management organsations, or additional conditions not foreseen in the Directive.

The document is maintained and regularly updated by the Europeana Out of Commerce Works Working Group, which is part of the Copyright Community. If you have any questions or additional information, please reach out to copyright@europeana.eu.

Explore the overview of out of commerce works implementations