<aside> 💡 For more detailed information please refer to the the full guide: TL;DR Articles 8-11: Use of out-of-commerce works
Articles 8-11 intend to allow cultural heritage institutions (CHIs) to digitise and make out of commerce works (OOCW) in their collections available online.
What is an OOCW? Work or other subject matter that has never been in commerce or that is no longer available, as a whole, through “customary channels of commerce”.
How does a work qualify as OOC? CHIs have to make a reasonable effort to determine whether a work is in commerce, with no mandatory search. Member States can provide specific requirements, e.g. cut-off date.
What solutions are made available to use OOCW? Two legal solutions: an extended collective license or, as a fallback mechanism, an exception to copyright.
Who can benefit from these legal solutions? CHIs
When does the license apply? When a sufficiently representative CMO exists for the specific type of work and right.
What is a sufficiently representative CMO? Member States have flexibility to determine the threshold that will make a CMO representative or not. This needs to be based on the number of rights holders represented for the rights covered.
When does the exception apply? It applies to types of works and uses for which no sufficiently representative CMO exists.
Can authors opt out from the licenses and the exception? Yes, they have the right to exclude their works from the uses being made under the license or the exception.
Can the CHI use any OOCW under the license or the exception? CHI can only use OOCW that are owned or permanently held by them, excluding sets of OOCW that predominantly consist of works by non-EU nationals.