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SWD IA on the EU copyright modernization – Out-of-commerce works

Would it be necessary in your country to enact legislation to ensure that the results of the 2011 MoU (i.e. the agreements concluded between libraries and collecting societies) have a cross-border effect so that out of commerce works can be accessed across the EU?

Would it be necessary to develop mechanisms, beyond those already agreed for other types of content (e.g. for audio- or audio-visual collections, broadcasters’ archives)?

The first question on mass digitisation concerned the possible need to enact legislation to give cross-border effect to the 2011 Memorandum of Understanding (MoU) on out-of-commerce works. The second question was more general and related to the possible need to develop new mechanisms to ensure the digitisation and making available of other types of content.

End users/consumers

End users/consumers and their organisations refer to two main reasons when acknowledging the importance of mass digitisation: firstly, the need to ensure the preservation of works for future generations, in particular for educational and cultural resources; secondly, the legitimate interest of the public in having online access to the collections of cultural heritage institutions across Europe.

Users consider than an exception is necessary to allow cultural heritage institutions to make their collections available online. Some respondents suggest extending the scope of the existing exception for the consultation of works for the purpose of research and private study. Others consider that the mass digitisation could be facilitated by reducing the terms of copyright protection. Another possible solution mentioned in the replies (but not as the favoured solution) is the use of compulsory licences.

End users generally consider that mechanisms facilitating mass digitisation should be adopted for all type of works beyond the print sector, including audio and audio-visual works. Several replies point to the need to make available broadcasters’ archives, especially material produced with the contribution of public funds.

Institutional users

Most institutional users consider that the MoU on out-of-commerce works and the Orphan Works Directive are insufficient to address the copyright issues arising from mass digitisation projects. In particular, they consider that the requirement of diligence searches makes the Orphan Works Directive unsuitable for mass digitisation projects.

Some academic libraries express concerns about the possibility of finding a balance, without arbitration by public authorities, between licensing conditions imposed by rightholders for digitising collections and the limited financial resources available for mass digitisation.

Institutional users generally consider that legislation allowing cross-border use of the digitised works is necessary, but many of them indicate that this objective would be better achieved by an exception allowing for mass digitisation of out-of-commerce works. They suggest that such an exception should cover all types of works.

Alternatively, they suggest considering solutions based on the collective management of rights, such as extended collective licensing, which are in place in some Member States. Institutional users generally consider that mechanisms facilitating mass digitisation and online access to collections should not be limited to certain types of content.


Quite a large number of authors and their organisations consider that the mechanisms in place at national level are sufficient and that no legislative intervention is needed.

On the other hand, other authors and authors’ organisations suggest that a mutual recognition system would be necessary to give a cross-border effect to the licences issued at national level under collective rights management systems. Others argue that legislation enabling mass digitisation applicable throughout the EU would be preferable, with an unwaivable remuneration for right holders.

Certain authors express a clear opposition to solutions based on mandatory collective management with opt-out mechanisms. They consider that the consent of each author needs to be obtained for mass digitisation projects and that the remuneration has to be individually negotiated.

A few respondents consider that the mechanisms in place in their countries (e.g. extended collective licensing) already provide a satisfactory solution for broadcasters’ archives.

Performing arts organisations favour an MoU for the digitisation and making available of out-of-commerce works in the performing arts sector (e.g. sound or video recordings of theatre productions and concerts). Other authors insist on the need to foresee an unwaivable remuneration for rightholders, whatever solution is chosen.

Collective management organisations (CMOs)

Several CMOs refer to the national frameworks in place, in particular the extending collective licensing system in Denmark, the law on out-of-commerce books in France establishing a system of collective management and the recent law based on legal presumption of representation of rights in Germany.

While certain CMOs indicate clearly that they would welcome solutions for the recognition of national laws and licensing mechanisms across borders, others simply highlight that the MoU calls on the Commission to propose solutions for cross-border availability.

Certain CMOs in the audio-visual sector express their willingness to implement the principles agreed in the context of Licences for Europe and to continue the dialogue on broadcasters’ archives.

CMOs representing visual artists express a preference for legislative solutions allowing mass digitisation with a fair remuneration. Other CMOs prefer to deal with digitisation questions through voluntary agreements between the interested parties.


Many publishers in the print sector consider that there is no need for further legislation at EU level if the MoU on out-of-commerce works is effectively implemented in all Member States.

Representatives of the newspaper publishers consider that providing mechanisms to facilitate the mass digitisation of newspaper content would threaten publishers’ business models and their ability to respond to digital challenges.

Public service broadcasters explain that rights clearance on an individual basis for making available the content of their archives is practically impossible. The main difficulties are related to the large amount of audio and audio-visual material and the large number of contracts and rightholders.

Therefore they favour the introduction of an EU framework which would encourage the adoption of legislative solutions based on collective licensing (for example on the extended collective licences model) in Member States to facilitate the digitisation of their archives.

Commercial broadcasters do not report any problems with the clearing of archives for new uses. They consider that there is no need for collective management to ensure the digitisation of audio-visual collections or broadcasters’ archives.

A large number of film producers consider that the approach used for the print sector (i.e. voluntary collective management backed by extended collective management or presumptions of representation) is not appropriate for audio-visual works, where individual rights licensing should be preferred.

The use of extended collective licensing or presumption of representation in this context should be consistent with the three-step test and offer sufficient guarantees to rightholders.

Music publishers explain that mass digitisation is not an issue for music and that rightholders can licence their work directly. They say that digitisation is common in the music industry and the chances of music being both in analogue form and out-of-commerce are remote.

Member States

In general, Member States favour contractual mechanisms and discussions between CMOs and cultural heritage institutions to address the challenges of mass digitisation.


Certain academics suggest that mass digitisation should be allowed under the preservation exception, which should include digitisation and format shifting but not acts of making available (which would remain covered by Orphan Works Directive and the MoU on out-of-commerce works).

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