The review of the DSM Directive is just around the corner. To mark the occasion, we’ve invited several experts to reflect on the issues the Directive aimed to fix—but didn’t. Maarten Zeinstra’s guest post on the failure of Article 8 kicks off this series.
With Article 8 of the DSM Directive, we imagined lowering the barriers for a shared collective memory. A vast decentralised digital library and archive. We saw evidence that a huge section of this library is locked behind glass: The “20th Century Black Hole,” where tens of millions of works in our cultural heritage institutions (CHIs) remain inaccessible in the digital age.
Article 8 was meant to be the key to this locked cabinet. It established a dual-mechanism system: first, a path for CHIs to get licenses from Collective Management Organisations (CMOs); and second, a fallback exception for cases where no CMO was sufficiently representative. The ambition was clear: to create that shared access to our common cultural heritage of works that were not in commerce.
Now, just before the European Commission starts a review of the DSM Directive we can take stock. And, despite local successes, we must be honest: Article 8 has not proven to be the right legislative key. It doesn’t fit the lock because of fundamental design flaws. The promise of Article 8 remains unfulfilled, and our shared heritage remains largely inaccessible.
An Unbalanced Reality
A snapshot of data from the EUIPO OOC-portal tells a clear story on the actual usage of the out-of-commerce (OOC) articles. It does not reveal a harmonised Digital Single Market, but a fractured and unbalanced landscape of repackaged pre-existing initiatives.
As of this September 2025, there are about 2.4 million OOC works registered in the portal. We can celebrate this as a success over its legislative predecessor, the Orphan Works Directive (2012/28/EU), which after 13 years has only 7.090 works registered. But when we look closer, we see that we have little to celebrate. Two countries, Slovakia and the Czech Republic, account for roughly 70% of all registered works. Add the Netherlands, and that figure rises to over 92%. This is not an example of a functioning European framework; it is a collection of a couple of national successes, the majority of which were based on prior collaboration and licenses with CMOs that covered these works.
Looking at the rightsholder side we see that the arguments of the representative rightsholders have not worked out in practice. Out of 2.4 million OOC works made available, only 320 rightsholders have opted-out. That is one for every 7.500 registered OOC works, or less than one work per the entire orphan works database! The license-first system was designed to protect rightholders, however the opt-out statistics shows that rightholders are simply not concerned with these types of works. The system is not balanced and its complexity is creating a barrier that is far more damaging to society than the risk to rights holders it seeks to prevent.
This is further demonstrated when looking at license fees. According to public sources, 92% of OOC works (Slovakia, Czech Republic and the Netherlands) cost about 1.2 million euros in public sector funding per year. On average, the license fees are less than one euro per registered OOC work per year, which barely covers the negotiating costs of CMOs and cannot offset any alleged required economic compensation for creators. And sometimes these fees are required upfront for the duration of copyright, e.g. Germany and Luxembourg. This demonstrates a market absurdity. The only winners here are the negotiators, myself included. This barrier of negotiation for symbolic remuneration will damage the recognition and findability that many of the works deserve.
Market Failure by Design
The legislation forces a negotiation between two parties with completely different incentives and missions: publicly-funded institutions with a mission to preserve and make available, and CMOs whose primary function is to maximize economic value for their members.
The core of the problem is the increased power imbalance between CHI and CMO by introducing a de facto “CMO Veto.” The fallback exception in Article 8(2) can only be used when a “sufficiently representative” CMO for a category of works does not exist. The law asks: “Does this CMO exist?” It fails to ask: “Is that CMO willing or able to offer a workable license?”
If a representative CMO exists but refuses to negotiate, or simply cannot or does not want to offer a license on reasonable terms for non-commercial use, the heritage sector is paralysed. If a CMO argues that they represent far more types of works than is reasonable, few heritage institutions are brave enough to challenge them, and negotiations take ages. The practical results are exactly what you would expect from such a system.
My German colleagues described a nearly four years, resource-draining, effort to reach a deal that is still punishingly expensive. In the Netherlands, securing licenses for three different categories of works has taken two to three years each. Such an effort is in itself unattainable for smaller institutions. Other countries like Belgium have tried to start negotiations for over 4 years. In Sweden, a CMO has flatly refused to license.
We can celebrate the success in Slovakia, Czech Republic, the Netherlands and Germany. However these were not successes of the DSM directive. They were the result of local conditions—a strong public institution, or a strongly organised public sector and often pre-existing collaborations between CMOs and CHIs. Even the exceptions to the failure proves the rule: the system is failing by default, not succeeding by design.
The public interest mission of CHIs can be indefinitely halted by the commercial calculation, or even the simple inaction, of a private entity. While one part of the Directive rightly seeks to correct power imbalances for creators, Article 8 creates a new one, placing our public institutions and the needs of our society in a disadvantageous position.
Exception-first instead of license-first
The solution within the logic of the DSM directive requires an amendment to the fallback exception. We must shift the legislative logic from a license-first to an exception-first system. We should raise the threshold for representative CMOs, removing their power of inaction. The law should not ask if a CMO representative, but rather: “Is a license reasonably required?” This conclusion is supported by a forthcoming report by Knowledge Rights 21, which similarly argues that the failure of a CMO to offer a license should lead directly to the implementation of the exception to remove this critical failure point.
This intervention maintains the “fair balance” at the heart of the Directive. Fundamental rights of creators are fully protected, the opt-out mechanism remains untouched. This intervention addresses the works of countless rightholders who have not opted out, whose creations are being held in limbo not by their own choice, but by a systemic failure. Let’s give our CHIs the right key to open the cabinet to our shared past for the benefit of all future generations.
