Working Paper No. 04-2020

June 2020

Article 8 of the EU Directive on Copyright in the Digital Single Market addresses an issue that the cultural heritage sector has been struggling with for a long time: the exploitation of out of commerce works. Article 8(1) enables CHIs to agree non-exclusive licenses for non-commercial purposes with collective management organisations (“CMOs”) for copyright works which are out of commerce, and this extends to works for which the right holders have not mandated the CMO. Article 8(2) expands this, and enables CHIs to make out of commerce works available for non-commercial purposes without seeking the rightholder’s permission where there is no representative CMO.

This paper will address the rationale behind Article 8 of the Copyright Directive, focusing on the issue of out of commerce works for CHIs; the legal issues that are likely to arise for CHIs seeking to utilise the Directive, focusing on the legal uncertainty of terms within the Directive; and whether Art 8 signals a fundamental change within copyright law and conflicts with the Berne Convention; and the practical implementation issues, including the prior publication requirement and how rightholders opt-out, as well as issues with CMO mistrust, and a lack of CMOs in certain sectors.

The motivation and hope behind Art 8 is that it will significantly transform the manner in which CHIs can exploit the out of commerce works in their collections. This will hopefully widen public access considerably to these historically “lost” collections. There is concern, however, that there are legal and practical issues in relation to Art 8 that could result in effective implementation by CHIs being difficult. The paper will recommend that the definitions of “out of commerce works”, “customary channels of commerce”, “reasonable effort” and “non-commercial purposes” need to be clarified, for CHIs to be able to benefit from Article 8, as the current terms are vague. Copyright will also need to address the meaning of “commercial” and “non-commercial” for Art 8 to be effective, as this understanding sits at the core of the provision. It would be unfortunate for a lack of clarity of key terminology to impact upon the implementation of Art 8, when it offers legal mechanisms that CHI need to enable public access to these vast collections of cultural heritage.

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