Digitisation and dissemination of out-of-commerce works held by cultural heritage institutions, including across borders, in ‘mass digitisation’ projects, is adversely affected by difficulties in clearing rights. The digitisation and dissemination of in-copyright OoC works as part of ‘mass digitisation’ efforts is however faced by distinct difficulties and high transaction costs for clearing the relevant rights. This problem contrasts with the inherently low current commercial value of the works at stake.
Difficulties in rights clearance and transaction costs affecting mass digitisation are mainly related to the nature of the works involved:
- The size of OoC collections that CHIs wish to digitise and further disseminate is often large, multiplying the resources that are required for rights clearance.
- Works are often old and have been, by definition, out of circulation. This means rightholders (or those who can clear the rights on their behalf) may be difficult to find and that the chain of title can be considerably long, complex and subject to uncertainty.
- The type of many of the works that are important from a heritage perspective – for example newsreels, photos, unpublished materials, or works that have never been intended for commercial circulation, such as political leaflets or trench journals – means that rights may have never been managed in any way.
Time-demanding rights clearance means high transaction costs for CHIs: attempts to quantify such costs in a general way are difficult as each collection and process is different. Collective licensing, whereby single contracts are concluded with a CMO for entire collections of works, can be an evident answer to the transaction costs problem. Yet, collective management of rights is not available for all types of works and CMOs may only grant licences for the rights mandated to them by the rightholders that they represent. This situation undermines the usefulness of collective licensing in many of the cases at hand, leaving, again, individual rights clearance as the only solution for many works.
Some MS have addressed the latter problem by establishing in national law, for example through extended collective licensing (ECL) or presumptions of representation, that licences issued by a CMO can apply to works of outsiders, under certain conditions, including the possibility for individual rightholders to ‘opt out’ their works from these licences. Under such legislation, CMOs can issue licences that cover entire collections, including works of outsiders, in full legal certainty.
CHIs regularly report that difficulties in clearing rights can be, and often are, a defining barrier for proceeding with a project at all, or in selecting the works that will be included in one. This causes projects to be skewed toward public domain and pre-20th century works, or newer collections or OoC collections remaining simply unavailable beyond CHI’s premises and not accessible across borders.