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

This option would not have any direct impact on rights clearance and transaction costs and would entirely depend on the solutions available at national level. CHIs in MS whose legal frameworks already allow for licences also covering the rights of outsiders for the digitisation and dissemination of OoC works would already benefit from the possibility of substantially lower transaction costs.

In the absence of EU intervention, licences concluded via these mechanisms covering outsiders, be them specific to certain types of works or not, would be valid for a single MS territory (at least as regards the rights of outsiders). Opportunities would be larger for literary works than in other sectors also because suitable licensing structures are widespread in this area and much less in others, like for film and audio-visual works.

Irrespective of the broader category of works, possibilities to obtain suitable collective licences could be limited for works that CMOs do not traditionally license, for example because they have never been intended for commercial use, due for example to lack of familiarity of CMOs with them and their rightholders.

Other MS might decide in the future to adapt their legal frameworks. Such evolution is however entirely dependent on the will of individual MS, and would probably not take place in a systematic manner, particularly beyond books and learned journals (where the 2011 MoU has generated momentum). Resulting licences would still be limited territorially.

Possibilities for rightholders, including outsiders, to receive new or extra revenue from collective licences for OoC works which already exist in MS can take the form of payments generated by the initial licences with CHIs, and from subsequent licensing opportunities stemming from the exposure of works that are otherwise not easily visible. Under the baseline scenario, these opportunities would not increase and be subject to the same limitations as regards MS territories and categories of works as discussed under “CHIs”.

In those MS and for those categories of works for which mechanisms exist through which licences between CMOs and CHIs can also cover the rights of outsiders and suitable licensing structures are in place, rightholders should still retain the freedom to decide on the exploitation of their works through the opt-out possibilities that such schemes normally foresee.

Existing licensing mechanisms in some MS for the digitisation and dissemination of OoC works may result in costs for rightholders in relation to the exercise of their opt-out possibility. Licensor CMOs can also incur specific costs related to the use of the existing mechanisms, for example related to publicity/transparency, the handling of opt-outs and the distribution of remuneration to outsiders.

There will be no impact on copyright as a property right, as recognised by Article 17(2) of the Charter, nor any substantial impact on the arts and scientific research, relevant for the freedom of the arts and sciences (Article 13), and on education, protected under Article 14.