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Draft proposal for a directive on copyright in DSM – cultural heritage institutions

For the purposes of Directive, works and other subject-matter should be considered to be permanently in the collection of a cultural heritage institutions when copies are owned or permanently held by the cultural heritage institution, for example as a result of a transfer of ownership or licence agreements.

Cultural heritage institutions should benefit from a clear framework for the digitisation and dissemination, including across borders, of out-of-commerce works or other subject-matter. However, the particular characteristics of the collections of out-of-commerce works mean that obtaining the prior consent of the individual right holders may not be possible. This can be due, for example, to the age of the works or other subject-matter, their limited commercial value or the fact that they were never intended for commercial use.

At the same time, it would not be justified to introduce an exception or limitation as in the case of orphan works. It is therefore necessary to provide for measures to facilitate the licencing of rights in out-of-commerce works that are in the collections of cultural heritage institutions and thereby to allow the conclusion of agreements with cross-border effect in the internal market.

Member States should, within the framework provided for in this Directive, retain flexibility in choosing the specific type of mechanism allowing for licences for out-of-commerce works to extend to the rights of right holders that are not represented by the collective management organisations, in accordance to their legal traditions, practices or circumstances. Such mechanisms can include extended collective licencing and presumptions of representation.

For the purpose of those licensing mechanisms, a rigorous and well-functioning collective management system is important. This includes in particular rules of good governance, transparency and reporting, as well as the regular diligent and accurate distribution and payment of amounts due to individual right holders, as provided for by Directive 2014/26/EU.

Pursuant to that Directive, where the amounts cannot be timely distributed to the relevant rights holders, because they cannot after reasonable and diligent search, be identified or located by the collective management organisations, they should be kept separately in their accounts. Additional appropriate safeguards should be available for all right holders, who should be given the opportunity to exclude the application of such mechanisms to their works or other subject-matter. Conditions attached to those mechanisms should not affect their practical relevance for cultural heritage institutions.

Given the variety of works and other subject-matter in the collections of cultural heritage institutions, it is important that mechanisms are available and can be used in practice for different types or works and other subject-matter, including photographs, sound recordings and audiovisual works.

In order to reflect the specificities of different categories of works and other subject-matter as regards modes of publication and distribution, it is appropriate that Member States are allowed to establish criteria at national level, in consultation with right holders and users, for works or other subject-matter to qualify as out-of-commerce in that country.