Today, we are publishing a new report (available as a PDF file) on the experiences of cultural heritage institutions (CHIs) using the out-of-commerce works (OOCW) mechanism established under Article 8 of the Directive on copyright and related rights in the Digital Single Market (DSM Directive).
In April 2026, COMMUNIA convened an online discussion with seven practitioners from six Member States — Austria, Germany, Italy, the Netherlands, Slovenia, and Sweden — to better understand the persistent obstacles to implementing the OOCW framework in practice. The report summarises the main findings of that discussion and sets out recommendations for strengthening the framework.
Lengthy and resource-intensive negotiations
Licensing negotiations for OOCWs between CHIs and collective management organisations (CMOs) require substantial staff time and legal expertise. The negotiations tend to be hard-fought, especially where they concern questions around remuneration. Practitioners participating in the meeting considered the effort required to be disproportionate, given that while the works concerned have significant societal value, they generally have little or no commercial value.
As a result, many CHIs decide not to pursue agreements at all, significantly limiting the practical effectiveness of the OOCW framework. At the same time, CMOs have limited incentives to engage. Although licensing fees can represent a substantial cost for CHIs, they are often economically marginal from the perspective of CMOs.
Unfair licensing conditions
Even where negotiations succeed, the resulting licence terms can impose considerable burdens on CHIs. Participants highlighted high per-item licensing fees, as well as obligations related to text-and-data mining and AI uses, as significant practical and financial obstacles. Most practitioners identified licensing costs as a major concern and a key deterrent to pursuing additional agreements.
Significant legal uncertainty remains
CHIs seeking to make OOCWs available online continue to face substantial legal uncertainty, particularly regarding the representativeness of CMOs. In many cases, it remains unclear whether a CMO can be considered sufficiently representative for a specific category of works and rights, and, consequently, whether a CHI is required to seek a licence.
This uncertainty is compounded by the composite nature of many works held in CHI collections. While audiovisual and musical works are obvious examples, books and periodicals also frequently combine multiple types of protected material, including text and illustrations. As a result, CHIs are often unsure whether they must negotiate with multiple CMOs, each claiming representativeness for different categories of protected content contained within a single work, rather than for the work as a whole.
The issue in a nutshell
Article 8 of the DSM Directive marked an important step towards improving access to out-of-commerce works. However, seven years after the adoption of the Directive and five years after its entry into force, significant structural weaknesses of the provision have become apparent, limiting its application in practice.
At the heart of the problem is a system that depends on actors with limited economic incentives to make it function effectively. At the same time, the bargaining position of CHIs is comparatively weak. Where negotiations stall or agreements cannot be reached, CHIs are left without meaningful alternatives and are often forced to abandon digitisation and access projects altogether, leaving culturally valuable materials inaccessible to the public.
Recommendations
In light of these challenges, COMMUNIA believes that the upcoming DSM Directive review should be used to strengthen and clarify the OOCW framework. The following proposals reflect COMMUNIA’s position and do not necessarily represent the views of the practitioners who participated in the discussion.
The exception should apply where suitable licences are not easily available
Article 8(2) of the DSM Directive should be amended to ensure that the exception can apply where suitable licences from sufficiently representative CMOs are not easily available in the market and adequate to the needs of CHIs.
In particular, the fallback exception should be triggered not only in the absence of a sufficiently representative CMO, but also where licences that meet the needs and specificities of cultural heritage institutions are not reasonably accessible in practice. This would realign incentives for CMOs to engage constructively, promoting the conclusion of licences.
The criteria for representativeness of CMOs should be clarified
The experience of CHI practitioners suggests that, in practice, it is often difficult to determine whether a CMO can be considered sufficiently representative for a given category of OOCWs and rights. If the system is to function as intended, clearer and harmonised criteria for assessing representativeness are needed.
