TOWARDS BETTER ACCESS TO EUROPEAN CULTURAL HERITAGE IN THE DIGITAL ENVIRONMENT
Out-of-commerce works are works that are still protected by copyright but are not available commercially, such as literary works, audio-visual works, phonograms, photographs and unique works of art.
To help the exchange of information about out-of-commerce works, a single publicly accessible online portal has been established by the European Union Intellectual Property Office (EUIPO).
European cultural heritage institutions, such as libraries, archives and museums, hold millions of out-of-commerce works in their collections. Even if they are often old and have been out of circulation for a long time, they still hold great cultural, scientific, educational and historical value.
The Out-of-Commerce Works Portal has been set up to help ensure that all the information about the use of out-of-commerce works and details about the rights holders’ opt-outs is adequately publicised and available in a single publicly accessible online portal.
With time, any work can end up being considered out-of-commerce. Furthermore, some works, such as posters, leaflets or trench journals, may be out-of-commerce from the beginning as they were never intended for commercial circulation.
Millions of out-of-commerce works are part of the collections currently held by European libraries, archives, museums or other cultural heritage institutions. They still hold great value for research and education purposes or are simply entertaining. For many years the EU and national governments have supported initiatives towards better online access to Europe’s rich cultural heritage. However, cultural heritage institutions’ mass digitisation projects have often not been possible due to legal difficulties in rights clearance and transaction costs.
Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market, introduces a legal framework to support cultural heritage institutions in the digitisation and dissemination, including across borders, of out-of-commerce works.
Key features of the out-of-commerce works system
- The Directive provides for a licensing mechanism that will make it easier for cultural heritage institutions to obtain the necessary licences from collective management organisations representing the relevant rights holders.
- This mechanism is complemented by a new mandatory exception or limitation to copyright that will apply in specific cases when there is no representative collective management organisation to negotiate with the institution. The exception will allow cultural heritage institutions to make out-of-commerce works available for non-commercial purposes.
- In order to protect the interests of rights holders, such as authors and publishers, the Directive sets out an opt-out mechanism that will enable them to withdraw their works from the out-of-commerce system at any time if they do not want their works to be used this way.
- Under Article 10 of the Directive, the EUIPO is responsible for the establishment and management of a single publicly accessible online portal providing information about out-of-commerce works and about the opt-out mechanisms available to rights holders.
It is expected that the new rules on out-of-commerce works will unlock great opportunities for the digitisation and dissemination of cultural heritage across the EU.
More information about the system for out-of-commerce works is provided on the European Commission’s website.
This system will complement the measures already in place for the use of orphan works at European Level, including the Orphan Works Database.
Single publicly accessible online portal of out-of-commerce works
The Out-of-Commerce Works Portal is the main publicity measure of the new system.
- The main purpose of the portal is to provide access to information about the ongoing and future use of out-of-commerce works on the basis of the Directive (EU) 2019/790.
- The portal gathers information about out-of-commerce works that cultural heritage institutions want to disseminate, such as literary works, audiovisual works, photographs, videogames, software, phonograms and unique works of art, including never in commerce works, such as posters, leaflets, trench journals or amateur audiovisual works, as well as unpublished works.
- According to the licence or under the exception, cultural heritage institutions have to publish this information on the portal at least 6 months prior to making use of such works (e.g. prior to distributing or making them available online).
- The portal also provides details about the use being made of out-of-commerce works (i.e. information about the licence or the exception).
- Another important feature of the portal is to provide information about the opt-out mechanisms available to rights holders. This information will make it easier for rights holders to withdraw their work(s) from the system.
The Out-of-Commerce Works Portal is publicly accessible.
The portal also offers other functions depending on the type of the user:
- The portal enables cultural heritage institutions, collective management organisations and/or public authorities to create and manage records of out-of-commerce works, before and after making them available online.
- In parallel, it makes it possible for the rights holders of those works to identify them and to initiate an opt-out request so that these works are excluded from the licensing mechanism or from the application of the exception or limitation to copyright. The portal helps start the opt-out request either in general or in specific cases, including after the conclusion of a licence or after the beginning of the use concerned.
- Public users are able to search for works considered as out-of-commerce, find the cultural heritage institutions that make these works available online, and enrol in the system of alerts to be informed about new works being entered on the portal.
User guides and support
You will find user guides for the portal in the links below. These will be helpful as an introduction to the portal’s features for each type of user, or as a technical guide while using the portal.
- User guide for cultural heritage institutions/collective management org./public authority user;
- User guide for rights holders/public user;
- User guide for national contact point user.
If you have any questions or need technical support please contact us at firstname.lastname@example.org.
Information folder, available in all EU languages
In the list below you will find an information folder for the Out-Of-Commerce Works Portal, available in all EU languages.
Example of implementation
Below is an example of a digitisation project of out-of-commerce works held in the permanent collection of a cultural heritage institution. It takes as an example a museum of photography in Spain that wishes to digitise its collection of photographs.
- After having determined that the photographs are out-of-commerce works (this step takes place outside the portal and is based on national implementing legislation), the museum will be in a position to go to a representative collective management organisation in Spain to obtain a licence that covers the use of the out-of-commerce photographs in their collection.
- If there is no licensing solution available in Spain (i.e. no representative collective management organisation sufficiently representative of rights holders in the relevant type of works), the so-called fall back exception will enable the museum to digitise the photographs and make them available for non-commercial purposes.
- Before making use of the photographs, the Spanish museum will record information about the works in the Out-of-Commerce Works Portal.
- The portal will help users identify which out-of-commerce works are being digitised by the Spanish museum as well as in other EU cultural heritage institutions. The portal will also make it possible for the rights holders of the photographs who wish to exclude their works from use to initiate the opt-out mechanism. This publicising function of the portal is particularly important when the use takes place across different EU Member States.
- It means that on the basis of the information available on the portal, the author of a photograph covered by the collective licence or used by the Spanish museum under an exception, could decide to opt its work out of such mechanisms at any time, including after the conclusion of the licence or after the beginning of the use concerned.