On 7 June 2021 - the deadline for EU Member States to implement the EU’s Copyright in the Digital Single Market (“DSM”) Directive - IFRRO, Europeana, EVA and FEP together organised an event to mark the launch of the European Union Intellectual Property Office (EUIPO) out-of-commerce works (OOCW) Portal.
Articles 8-11 of the Directive aim to make it easier for Cultural Heritage Institutions (CHIs) to obtain licences from Collective Management Organisations (CMOs) for certain uses of OOCW that are permanently in the collections of CHIs.
The OOCW Portal provides access to information about OOCW that could be used under the new mechanisms introduced by the Directive (i.e., a licence or a ‘fall-back’ exception where no “sufficiently representative” CMO exists). This information must be available 6 months before works are made available under the licence or exception. The Portal also makes it easier for rightholders to opt-out of the new mechanisms (although it is not in itself an opt-out instrument).
As underlined by Europeana, another key element of the success of the new OOCW provisions will be collaboration across stakeholders, namely CHIs, CMOs and rightholders, in the application of the provisions and negotiation of licences.
The event included an overview of the DSM Directive provisions by the European Commission and a demonstration of how the Portal works by the EUIPO (see further details here). While the Portal currently includes minimum features, such as user registration, record creation, upload, notification and search functions, as well as facilitating opt-out (both nationally and EU wide) improvements are foreseen in a second phase.
The event also provided an opportunity for the key stakeholders - CMOs, authors, publishers, and CHIs - to express their views. The importance of properly assessing if a work is OOC was emphasised, as well as concerns about possible challenges regarding publicity at national level, and also as regards opt-out and moral rights.
Several speakers remarked on the good cooperation between the different stakeholders and recognised the importance of stakeholder dialogue for national implementation of the rules.
- A recording of the event is available here.
- A short summary of the event can be found here.
- IFRRO’s Guide on the Licensing of Out of Commerce Works (here) provides an in-depth explanation of the new rules, as well as suggestions for implementation at national level, including how to constructively approach the stakeholder dialogue foreseen under Article 11.