DSM directive: new rules for providing
access to Out of Commerce Works

Paul Keller, DSM directive symposium, 13 June 2019

We set out to fix the 20th century black hole problem

Image Based on original artwork by Hendrik-jan Grievink

Articles 8-11: Use of out-of-commerce works and other subject matter by cultural heritage institutions

Providing access to Out of Commerce Works

The three key elements of the OOCWs provisions in the DSM directive are:

Licensing where licensing is possible

An exception for situations where licensing is not possible.

Rightholders can always opt-out

OOCW provisions flowchart







Is it a collection of OOCWs?

Is there a representative CMO for the type of works?

Does the CMO want to issue a license and can parties agree on terms?

Collection can be made available online relying on the exception

The collection cannot be made available online

Collection can be made available in accordance with the terms of the license

Intention to make the collection available needs to be published in a single public online portal. Rightholders have 6 months to object / opt-out.

What happens during implementation?

Article 10 Publicity measures

1. Member States shall ensure that information from cultural heritage institutions, collective management organisations or relevant public authorities, for the purposes of the identification of the out-of-commerce works or other subject matter, covered by a licence granted in accordance with Article 8 (1), or used under the exception or limitation provided for in Article 8(2), as well as information about the options available to rightholders as referred to in Article 8(4), and, as soon as it is available and where relevant, information on the parties to the licence, the territories covered and the uses, is made permanently, easily and effectively accessible on a public single online portal from at least six months before the works or other subject matter are distributed, communicated to the public or made available to the public in accordance with the licence or under the exception or limitation.

The portal shall be established and managed by the European Union Intellectual Property Office in accordance with Regulation (EU) No 386/2012.

A service oriented role for the Public Single Online Portal ?

The portal will play an important role in any workflows resulting in the publication of OOCWs. It needs to be user friendly and developed in close collaboration with both CHIs and CMOs. It must be a persistent resource for information about OOCWs and opt-outs registered by right-holders.

By further designing the portal as a service aimed at facilitating the mass digitization of OOCWs the portal could significantly boost the impact of the OOCW provisions of the DSM directive.

In addition to the minimal requirements identified in the directive the portal should also serve as an information hub for CHIs wanting to digitize collections of OOCWs, as an information resource for rights clearance and as a service for rightholders who want to exercise their rights under the opt-out provisions.

The Public Single Online Portal as a service (requirements)

  • Information Hub
    • Inform CHIs about CMOs offering licenses (types of repertoire and MS covered)
    • Inform CHIs about scope of exception per Member State
    • Inform Rightholder about ability to opt-out *
  • Public searchable database on the use of OOCW and opt-outs
    • Publish identifying information for OOCW used in accordance with Art 8 including parties to license, territory and uses covered by license *
    • Notify registered rightholders of intents to publish based on stored search criteria
    • Notify CHIs of existing and new opt-out requests
    • Publish searchable database with existing opt-outs by rightsholders **

* required by Art 10(1) ** required by reciatal 41

Public Single Online Portal further considerations

  • To be meaningful for visual works the portal must allow the publication of reduced size thumbnails as part of the required identifying information.
  • The portal needs to allow batch uploads via a web interface and APIs that support metadata formats commonly used within the cultural heritage sector. Ideally the portal should be developed in such a way that it can directly interface with the major collections management systems (involve vendors in design process).
  • It needs to be a high trust ressource (Ensure rightholders that opt-outs they register are meaningful and effective).
  • Member States should refrain from building their own parallel infrastructures.

Article 11 Stakeholder dialogue

Member States shall consult rightholders, collective management organisations and cultural heritage institutions in each sector before establishing specific requirements pursuant to Article 8(5), and shall encourage regular dialogue between representative users' and rightholders' organisations, including collective management organisations, and any other relevant stakeholder organisations, on a sector-specific basis, to foster the relevance and usability of the licensing mechanisms set out in Article 8(1) and to ensure that the safeguards for rightholders referred to in this Chapter are effective.

Stakeholder dialogues will be key in making this work

  • The national stakeholder dialogues will be a key element in making the OOCW provisions work.
  • They provide an opportunity to develop workable sector specific definitions of what constitutes an “Out of Commerce work” (in line with Article 8(5)).
  • More importantly the stakeholder dialogues provide a chance to establish trust between key stakeholders (CHIs, CMOs and other rightholders) on the national level.
  • Trust between stakeholders will be essential to develop sustainable ways of working together. This includes understanding where representative collective management organisations exist (and make sense) and where the exception applies. It is also important for shaping licensing practices and to define best practices for opting-out and complying with opt-outs.


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