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

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 for these and other works, and (ii) giving cross-border effect to such legal mechanisms.

Option 1 would deliver solutions in all MS for books and learned journals. These could take the form of ECLs, presumptions of representations or similar systems, depending on national circumstances. Combined with the large availability of collective licensing practices and CMOs in this sector, this would mean that the possibility for CHIs to benefit from lower transaction costs to obtain comprehensive licences for OoC books and learned journals would exist largely across Europe for this category of works.

The possibility to actually use those legal frameworks would be accelerated by the stakeholder frameworks that MS would have to put in place, helping to address practical issues, like for example the absence of suitable licensing structures in certain MS, CMOs’ lack of familiarity with types of works that they do not traditionally license, the need for literary and visual works CMOs to work jointly (for embedded visual works), and other licensing aspects. Given the current estimations concerning individual rights clearance for books, savings in transaction costs that this option would entail for CHIs across the EU are expected to be meaningful.

New revenue opportunities for rightholders as described under the baseline scenario would potentially emerge in all MS for books and learned journals. Such opportunities would however not increase for rightholders in other types of works, or only in the long term as a consequence of the stakeholder frameworks which MS would have to foster.

Option 1 would increase the scope for collective licensing, as opposed to individual licensing, for the digitisation and dissemination of OoC books and learned journals by CHIs. However, the mechanism introduced by this option would remain of voluntary use and rightholders in books and learned journals would retain the possibility to prevent the dissemination of their works by a CHI.

While members of licensor CMOs would do so by the normal management of their mandates to the CMO, outsiders would rely on the opt-out possibilities that licensing mechanisms foreseen by this option would have to ensure. These would be compounded by adequate transparency/publicity measures on relevant licences and opt-out possibilities, which MS would also be obliged to ensure. Foreign rightholders would not be at a substantial disadvantage as only rights in books and learned journals first published in the country where the licence is sought could be licensed under such mechanisms. Apart from strengthening the representativeness of the respective CMO, this requirement serves as a safeguard to ensure that the mechanisms are not applied to works from third countries.

Given the widespread use of collective management for the type of works covered by this option (books and learned journals), costs for rightholders and CMOs related to the development of collective licensing schemes for the digitisation and dissemination of OoC books and learned journals by CHIs (such as costs related to opt-out and transparency mechanisms and the administration of the licence, including the distribution of remuneration to outsiders) would be limited. The transparency/publicity obligations foreseen by this option would however help keeping burden to a reasonable level for rightholders. The number of opt-outs that is reported from current experiences with extended collective licences, presumptions of representations or similar mechanisms at national level suggests that costs would overall be limited.

There would be a limited impact on copyright as a property right, as recognised by Article 17(2) of the Charter.