Wednesday 26th September 2018

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View Commission's Position on Recital 22

EU Commission's Position

As adopted 14th September, 2016

Recital 22

Frameworks for the digitisation and dissemination of works

Cultural heritage institutions should benefit from a clear framework for the digitisation and dissemination, including across borders, of out-of-commerce works or other subject-matter. However, the particular characteristics of the collections of out-ofcommerce works mean that obtaining the prior consent of the individual rightholders may be very difficult.

This can be due, for example, to the age of the works or other subject-matter, their limited commercial value or the fact that they were never intended for commercial use.

It is therefore necessary to provide for measures to facilitate the licensing of rights in out-of-commerce works that are in the collections of cultural heritage institutions and thereby to allow the conclusion of agreements with cross-border effect in the internal market.

View Council's Position on Recital 22

EU Council's Position

As adopted 25th May, 2018

Recital 22

Frameworks for the digitisation and dissemination of works

Cultural heritage institutions should benefit from a clear framework for the digitisation and dissemination, including across borders, of works or other subject- matter that are considered out of commerce for the purposes of this Directive. However, the particular characteristics of the collections of out-of-commerce works, together with the amount of works involved in mass digitisation projects, mean that obtaining the prior consent of the individual rightholders may be very difficult.

This can be due, for example, to the age of the works or other subjectmatter, their limited commercial value or the fact that they were never intended for commercial use.

It is therefore necessary to provide for measures to facilitate the collective licensing of rights in out-of-commerce works that are permanently in the collections of cultural heritage institutions and thereby to allow the conclusion of agreements with crossborder effect in the internal market.

EU Commission's Position

As adopted 14th September, 2016

View Council's Position on Recital 22

Recital 22

Frameworks for the digitisation and dissemination of works

Cultural heritage institutions should benefit from a clear framework for the digitisation and dissemination, including across borders, of out-of-commerce works or other subject-matter. However, the particular characteristics of the collections of out-ofcommerce works mean that obtaining the prior consent of the individual rightholders may be very difficult.

This can be due, for example, to the age of the works or other subject-matter, their limited commercial value or the fact that they were never intended for commercial use.

It is therefore necessary to provide for measures to facilitate the licensing of rights in out-of-commerce works that are in the collections of cultural heritage institutions and thereby to allow the conclusion of agreements with cross-border effect in the internal market.

EU Council's Position

As adopted 25th May, 2018

View Commission's Position on Recital 22

Recital 22

Frameworks for the digitisation and dissemination of works

Cultural heritage institutions should benefit from a clear framework for the digitisation and dissemination, including across borders, of works or other subject- matter that are considered out of commerce for the purposes of this Directive. However, the particular characteristics of the collections of out-of-commerce works, together with the amount of works involved in mass digitisation projects, mean that obtaining the prior consent of the individual rightholders may be very difficult.

This can be due, for example, to the age of the works or other subjectmatter, their limited commercial value or the fact that they were never intended for commercial use.

It is therefore necessary to provide for measures to facilitate the collective licensing of rights in out-of-commerce works that are permanently in the collections of cultural heritage institutions and thereby to allow the conclusion of agreements with crossborder effect in the internal market.

EU Parliament's Position

As adopted 12th September, 2018

Update 14th September 2018: This proposal is the version adopted by the EU Parliament on 12th September 2018. Emboldened text denotes an amendment.

Recital 22

Frameworks for the digitisation and dissemination of works

Cultural heritage institutions should benefit from a clear framework for the digitisation and dissemination, including across borders, of out-of-commerce works or other subject-matter. However, the particular characteristics of the collections of out-of-commerce works mean that obtaining the prior consent of the individual rightholders may be very difficult.

This can be due, for example, to the age of the works or other subject-matter, their limited commercial value or the fact that they were never intended for commercial use or have never been in commerce.

It is therefore necessary to provide for measures to facilitate the use of out-of-commerce works that are in the collections of cultural heritage institutions and thereby to allow the conclusion of agreements with cross-border effect in the internal market.

Recital 22a (new)

Cultural heritage institutions and out-of-commerce works

Several Member States have already adopted extended collective licencing regimes, legal mandates or legal presumptions facilitating the licencing of out-of-commerce works.

However considering the variety of works and other subject-matter in the collections of cultural heritage institutions and the variance between collective management practices across Member States and sectors of cultural production, such measures may not provide a solution in all cases, for example, because there is no practice of collective management for a certain type of work or other subject matter.

In such particular instances, it is therefore necessary to allow cultural heritage institutions to make out-of-commerce works held in their permanent collection available online under an exception to copyright and related rights.

While it is essential to harmonise the scope of the new mandatory exception in order to allow cross-border uses of out-of-commerce works, Member States should nevertheless be allowed to use or continue to use extended collective licencing arrangements concluded with cultural heritage institutions at national level for categories of works that are permanently in the collections of cultural heritage institutions.

The lack of agreement on the conditions of the licence should not be interpreted as a lack of availability of licensing-based solutions. Any uses under this exception should be subject to the same opt-out and publicity requirements as uses authorised by a licensing mechanism.

In order to ensure that the exception only applies when certain conditions are fulfilled and to provide legal certainty, Member States should determine, in consultation with rightholders, collective management organisations and cultural heritage organisations, and at appropriate intervals of time, for which sectors and which types of works appropriate licence-based solutions are not available, in which case the exception should apply.