SWD IA on EU copyright modernisation – baseline and first option for out-of-commerce works in the collections of cultural heritage institutions

Baseline

No policy intervention. CHIs would continue to rely mainly on individual licensing, or collective licensing where possible. Collective licensing would be supported by national legal mechanisms to cover the rights of outsiders only in a limited number of MS. Licences resulting from these mechanisms would be limited to one national territory. The 2011 MoU would continue to call on MS to adopt such mechanisms for books and learned journals, and to provide a basis for further collective licences for this category of works.

Option 1

EU legislative intervention (i) requiring MS to put in place legal mechanisms to facilitate collective licensing agreements for OoC books and learned journals and to foster national stakeholder frameworks, and (ii) giving cross-border effect to such legal mechanisms

  • Type of mechanisms: MS would be required to provide for adequate mechanisms in their legal system ensuring that voluntary collective licensing agreements between CHIs (i.e. publicly accessible libraries and museums, as well as archives and film or audio heritage institutions) and CMOs for the digitisation and dissemination of OoC books and learned journals (including embedded images) in their collections can also apply to the works of outsiders.
  • Scope of the mechanisms: (i) OoC books and learned journals first published in the MS where the licence is sought, (ii) the rights of reproduction, communication to the public (including making available) and distribution, and (iii) non-commercial uses. Books and learned journals would be considered OoC as defined in the 2011 MoU. MS would have the possibility to establish further national-specific criteria for works to be eligible for the mechanisms in question, which will have to be done in consultation with concerned rightholders and users.
  • Safeguards for rightholders: these mechanisms would have to reflect a set of features established at EU level to provide for adequate safeguards for rightholders, notably outsiders, as regards: (i) sufficient representativeness of the licensor CMO of rightholders in the relevant category of works, rights and uses in the MS where the licence is sought, (ii) the possibility for outsiders to opt out of licences prior and during licence terms, (iii) equal treatment of CMO members and outsiders, and (iv) transparency/publicity obligations. MS would otherwise remain free to choose the suitable mechanism according to their legal traditions, practices or circumstances.
  • Cross-border effect: the legal possibility for the part of the licences that relates to outsiders to apply across borders in the EU would be established by EU law. Such cross-border effect would kick in after adequate information on the collections of works covered by the licence has appeared on a publicly accessible European transparency web portal for a sufficient period of time, except for works of authors that might have opted out during that period.
  • Stakeholder frameworks: MS would also be required to foster national stakeholder frameworks and dialogue at national level with a view to facilitate the practical implementation of the licensing mechanisms deriving from the obligation defined above, beyond purely legal aspects, and to achieve similar outcomes as the 2011 MoU in other sectors.

Option 2

EU legislative intervention (i) requiring MS to put in place legal mechanisms to facilitate collective licensing agreements for all types of OoC works and to foster national stakeholder frameworks, and (ii) giving cross-border effect to such legal mechanisms.

Same as Option 1, but:

Covering all types of OoC works, with a similar attachment to a single MS as in Option 1. Licences would have to be sought in the MS of first publication or, in the absence of publication, first broadcast, or – in the case of cinematographic or AV works – the MS where the headquarters or habitual residence of the producer is located. In cases where attachment to a MS (or to a third country, in which case the mechanism could not be used) cannot be established with certainty after reasonable efforts, the licence would have to be sought in the MS where the CHI is established.
A work would be considered OoC when the whole work is, in all its translations, versions and manifestations, not being communicated, made available or distributed to the public through customary channels of access, and cannot be reasonably expected to become so. MS would have the same possibility as in Option 1 to establish further national-specific criteria.