The proposed directive contains measures that are intended to help museums, archives and libraries to better serve their users online. A new mandatory exception for preservation copies will improve legal certainty. Articles 7-9a will make it easier for cultural heritage institutions to make available online copyrighted works from their collections that are not in commerce.
Cultural heritage institutions, such as museums, archives and libraries (CHIs) have struggled with copyright for more than two decades. While technology enables them to reach far bigger audiences and to make their collection available to the public in more meaningful ways, copyright limits what they can do. The core of the problem is that very often CHIs are not the rightsholders for the works that they host in their collections, and it is very labour intensive and costly for CHIs to clear these rights, especially when it comes to older works that are no longer commercially exploited by their rightsholders (or have never been commercially available at all). This has resulted in a situation where very little of the 20th century collection of Europe's libraries, archives and museums is available online. Cultural heritage institutions have been referring to this situation as the “20th century black hole.”
A mandatory EU-wide exception allowing CHIs to make their out-of-commerce works available online would be the ideal way to fix this situation. Europe's cultural heritage institutions need copyright rules that allow them to focus on their public mission of providing access to their collections. When it comes to copyrighted works in their collections that are no longer commercially exploited by their rightsholders (such as out of print books or out of circulation films)–or that have never been intended for commercial exploitation (such as political posters or pamphlets)–CHIs should be allowed to make these works available on their own non-commercial websites without having to obtain permission from the rightsholders.
The Commission's original proposal fell way short of this objective. Instead of proposing a robust exception, the Commission proposed a severely limited and overly-complicated licensing mechanism. Since then, both the Parliament and the Council have proposed substantial improvements to the Commission's text, most of which have been integrated into the final compromise. The compromise combines a less complicated licensing mechanism with an exception, which serves as a fall-back mechanism that operates in a situation where licensing is not available. In addition, Member States will also be able to introduce more comprehensive domestic licensing schemes. Taken together these provisions provide Europe's CHIs with a comprehensive solution to most of the copyright problems they are faced with when digitizing their collections. If adopted the Directive will be an important step forward for the cultural heritage sector, which has been struggling with these problems for more than 20 years.
The existing EU copyright framework does not provide a lot of room for cultural heritage institutions who want to make their collections available online. The two optional exceptions of the InfoSoc Directive that include cultural heritage institutions as their beneficiaries do not apply to online uses. Article 5(2)c allows cultural heritage institutions to make "specific acts of reproduction [...] which are not for direct or indirect economic or commercial advantage" and Article 5(3)n allows CHIs to make "use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals [...] of works [...] which are contained in their collections." Neither of these provisions are of any help when it comes to making collections available online. The 2011 Orphan Works Directive was intended to enable cultural heritage institutions to make available works for which no rightsholder can be identified or located, but it established such a substantial search burden that it is hardly used by the cultural heritage institutions today. To date, less than 13,000 orphan works have been registered in the EUIPO database established by the Directive. More than two decades into the digital age the EU copyright framework fails to provide cultural heritage institutions with a way to leverage the internet to share their collections.
The original Commission proposal included a section on "Use of out-of-commerce works by cultural heritage institutions." The Commission proposed an approach that was derived from the Memorandum of Understanding on Key Principles on the Digitisation and Making Available of Out-of-Commerce Works, but expanded its approach to all types of works. Article 7 of the proposal would require Members States to ensure that collective management could license cultural heritage institutions to make available out-of-commerce works (OOCW) from their collections available online. While a step in the right direction, the Commission’s proposal was perceived by cultural heritage institutions as too limited and too complicated. Under the Commission’s proposal, CHIs would face substantial search efforts before being able to obtain licenses for the use of OOCW. By relying on extended collective licensing as its mechanism, the proposal would provide a solution for a problem in sectors where representative collective management organisations exist. As this is not the case in all sectors (and varies greatly across Member States), the Commission’s proposal would at best have provided a partial solution for the problem of out-of-commerce works.
Both the Council and the Parliament proposed substantial amendments for the Commission’s proposal. The negotiation position adopted by the Member States maintained the basic approach proposed by the Commission and focused on simplifying some of the more burdensome requirements that cultural heritage institutions would need to meet before being able to obtain licenses to make available their OOCW. It also introduced a new article 9a on "Collective licensing with an extended effect." This article would allow Member States to provide for domestic extended collective licensing that could be used to digitize mixed collections (collections that include both out-of-commerce and in- commerce works). The position of the Parliament adds a fall back exception to Article 7 that would operate in a situation where extended collective licensing does not provide a solution because there are no representative collective management organisations that can grant such licenses. The mandatory exception for making these works available–taken together with the amendments proposed by the Council and the Parliament–address the most important shortcomings of the Commission's proposal identified by cultural heritage institutions.
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