Facilitating Wider Access to Europe’s Cultural Heritage in the Digital Environment: Opinion of the CEIPI on the European Commission’s Copyright Reform Proposal, with a Focus on Access to Out-of-Commerce Works

Christophe Geiger, Giancarlo Frosio and Oleksandr Bulayenko
Centre for International Intellectual Property Studies (CEIPI) Research Paper No. 2018-11

Abstract

The Proposal for a Directive on Copyright in the Digital Single Market aims at facilitating wider access to Europe’s cultural heritage through the introduction of inter alia a mechanism enabling the use of out-of-commerce works by cultural heritage institutions in the digital environment. After examining the key elements of this mechanism, this Opinion critically discusses the definition of the scope of search required for establishing the out-of-commerce status of works, the requirement of the representative character of collective management organisations and the non-application of the mechanism to third-country works.

This Opinion also looks into the coordination between the CJEU’s Soulier decision and the Directive Proposal, with special emphasis on the sufficiency of general publicity measures and the creation of the EUIPO’s out-of-commerce online database. In conclusion, while being supportive of the proposal and the idea of promoting more access to out-of-commerce works, this Opinion provides some suggestions for improving the text.