IFJ, NWU, and SFWA comment on European Union proposals for “out-of-commerce works”

Authors Rights Expert Group at IFJ headquarters in Brussels.

For more than six years, the European Union has been engaged in major omnibus copyright “reform” legislation — and the NWU has taken a leading role in  engaging with EU lawmakers and regulators to try to make sure that the interests of US and other non-EU authors are taken into account in this process.

An EU “Directive” (EU-wide legislation) on copyright was enacted in 2019, and both EU-level institutions and EU members are now in the process of enacting regulations and national laws to implement the Directive.

One of the sections of the 2019 EU “Directive on Copyright in the Digital Single Market” that is likely to have the greatest impact — in some cases positive, in some cases negative — on US and other non-European writers contains provisions authorizing scanning and use of “out-of-commerce works” included in European library collections, including works by US authors published in the USA.

We are trying to make sure that US authors have as much of a choice as possible, as easily exercised as possible, as to whether our work is included in these EU exceptions and limitations to copyright. Our concerns have been expressed repeatedly in our submissions to the various EU institutions involved in the legislative process, which are all linked from our page of white papers and advocacy resources. Most recently, in November 2019, the NWU met in person in Brussels, and by videoconference, with the relevant staff of the European Commission and the EU Intellectual Property Office and with the US Intellectual Property attaché to the EU.

We are continuing to work on this issue with allies from international federations to which we belong — including IFRRO, IFJ, and IAF — and with other US organizations of authors including members of the Authors Coalition of America.

Our latest submission today on this issue to the EU Intellectual Property Office is co-signed by the International Federation of Journalists (IFJ) and the Science Fiction and Fantasy Writers of America, Inc. (SFWA).

The EUIPO is charged with developing an operating a “single portal” through whihc authors will be able to search for works that have been deeemd “out of commerce” in any EU member state, and can exclude any or all of their work from various exceptions and limitations to copyright created by the EU Directive. The EU Directive requires that this “opt-out” process be made “easy” and “effective”.

But as we explain in our comments today to the EUIPO, it appears that the EUIPO has failed to provide for many of the real-world “use cases” of authors who might want to opt out, and that the process as contemplated by the EUIPO’s draft specifications for the “out-of-commerce works” portal would be neither easy nor effective, espeically if opt-out requests would have to be submitted separately to each of the 27 EU member states, would require itemizing each of an author’s lifetime of works, or would require authors who want to opt out to search the portal every few months and wait until after each work is identified as “out of commerce” before it can be excluded.

The NWU and our allies will continue to monitor the implementation of the EU Directive on Copyright, and continue to speak up for the interests of writers worldwide, just as the NWU is often a leading voice in Washington for the interests of non-US writers when US laws and regulations are being considered.