This guide aims to familiarise readers with Article 8, Article 9, Article 10 and Article 11 of the DSM Directive, which deal with digitisation and making available online of out of commerce works. The guide was authored by Ariadna Matas and Paul Keller. It represents the views of Europeana and Communia on the implementation of those provisions.

For a summary of this guide please see:

TL;DR Articles 8-11: Use of out-of-commerce works

What is at issue with Articles 8, 9, 10 and 11?

🥜 In a nutshell

Articles 8, 9, 10 and 11 intend to allow Cultural Heritage Institutions (CHIs) to make Out of Commerce Works works (OOCWs) in their collections available online.

Article 8 requires that member states provide a legal solution to allow CHIs to digitise OOCWs and to make them available online. The two possible solutions are a licensing mechanism or, when there is no representative Collective Management Organization (CMO) that can issue such licenses for certain uses and types of work, an exception to copyright.

Rights holders whose works are digitised and made available under these provisions will be able to opt out, meaning to request the “removal” of their works from what has been made available through the license or the exception.

Article 9 provides that the mechanisms introduced in Article 8 allow access from all EU Member States. A European portal will be created by the European Intellectual Property Office (EUIPO), the institution also in charge of the Orphan Works Database, gather and make available information on out-of-commerce works (Article 10).

Member states need to organise a dialogue (Article 11) among rights holders, CMOs and CHIs to agree on requirements of what is considered an OOCW, and at the practical level to make licenses and the exception workable. It will be key for cultural heritage institutions to take part in these discussions.

Some context

In an attempt to address the problem of the 20th century blackhole, the EU legislator has created a framework that should allow CHIs to overcome the legal challenges around the digitisation and dissemination of their collections. Following the Orphan Works Directive from 2012, the provisions on OOCWs focus on a wider category of works: works that are not available to the public through customary channels of commerce (orphan or not).

The license-based solution, in Article 8, the so-called Extended Collective Licenses (ECL) or presumption of representation, is a solution that is already in place in some European Member States, especially in the Nordic countries, often used in the educational sector. It allows CMOs to give licenses not only on behalf of authors that have granted them permission to do so, but also of authors that haven’t. The “extension” of the license to cover works of authors that are not members of the CMO is possible because of the (presumed) representativity of the CMO.

According to the articles on OOCWs, where a sufficiently representative CMO (sufficiently representative for the type of work and for one or more rights) does not exist, an exception applies instead.

These provisions are very promising for the mass digitisation of OOCWs. Getting clarity on key aspects throughout the implementation of the text, especially by being part of the stakeholder dialogue, as well as ensuring adequate negotiations of licensing conditions will be crucial in making this system suitable to the needs of CHIs.

🛠 Breaking down Articles 8, 9, 10 and 11

Let’s have a look at the Articles in detail: