NWU meets with Europeans on plans for “out-of-commerce” works

Representatives of the NWU, the International Federation of Journalists (IFJ), and the European Federation of Journalists (EFJ) participated in a workshop on implementation of the provisions of the EU copyright directive for “out-of-commerce” works hosted by IFRRO in Brussels on February 23, 2020.

IFRRO and IFJ were the only global organizations represented at the workshop, and the NWU delegate was the only non-European participant. Other participants included European reproduction rights organizations,    who will be responsible for licensing copying and other uses of out-of-commerce works, although the European Union copyright directive also creates an unremunerated exception to copyright for out-of-commerce works if there is no representative licensing body available. Also at the workshop were representatives of European creators and publishers including the Federation of European Publishers, European Writers Council, and European Visual Artists).  Atrending as observers were the European Commission staffers overseeing EU-level implementation of these provisions including creation of a central “portal” for out-of-commerce works to be operated by the EU Intellectual Property Office (EUIPO).

There was a consensus that the provisions for out-of-commerce works are a more significant part of the omnibus EU copyright directive, have wider potential scope, and pose more complicated implementation problems and choices, than had been recognized during debate on the directive.

Although most of the discussion was about books and works included in books, the out-of-commerce provision also apply to all types of works including, for example, scanning and online distribution of newspaper and periodical archives and back issues.

All creator and publisher sectors voiced concerns, as had the NWU since these provisions of the EU Directive on Copyright were first proposed, that (1) works that are actually being exploited will be categorized as out of commerce, and (2) the portal won’t be easy or effective to use, especially for rightsholders,  that (1) works that are actually being exploited will be categorized as out of commerce, and (2) the portal won’t be easy or effective to use, especially for rightsholders and most of all for those who want to opt out. All rightsholder groups recognized that they might want to opt out for some or all works and/or rights, including opting out of the unremunerated fallback exception.

Both rightsholders and reproduction rights organizations (RROs), for different reasons, want the EUIPO portal to provide one-step global (or pan-EU) opt-out functionality. The European Commission and EUIPO have resisted this, but are being forced to admit that to opt out individually in 27 EU member states would not be “easy” or “effective”, as required by the directive. The original plans for the portal included no direct opt-out functionality, merely links to national systems in each EU member state. In response to the concerns raised by the NWU, IFJ, SFWA, and IFRRO, the EC and EUIPO are working on revised plans for some sort of global opt-out. It’s not yet clear if it will be easy or effective, but the fact that they are revising their plans and will provide some sort of direct global opt-out is a major victory for our intervention.

RROs, for their own reasons, fully support rightsholders in wanting the EUIPO to handle opt-outs through the central portal on a pan-EU basis. RROs don’t want the burden or potential liability of handling a public-facing rightsholder opt-out process, and hope that easy global opt-out will mitigate or eliminate rightsholder concerns about overreach and inclusion of in-commerce works. RROs generally want to include all works, regardless of in-commerce status, on an opt-out basis.

There is concern by RROs that actually trying to assess in-commerce status will be so burdensome as to make licensing unprofitable. RROs, like anti-copyright advocates but for different reasons, want a simple, quick process and broad, general criteria for out-of-commerce determinations.

Existing European national systems for licensing of digitization and online distribution of out-of-commerce works were presented as models at the IFRRO workshop. Typical of these, and often cited as a model for other EU member states, is the German scheme for scanning of out-of-commerce books managed by the German RRO, “VG Wort”. Revenues from this licensing scheme average about 2 Euros per book scanned, with a maximum of 15 Euros per book. So almost any individualized exploitation is likely to generate higher revenues for rightsholders.

The German scheme explicitly uses a one-step test for out-of-commerce status: if a book was published in Germany (i.e. listed in a previous edition of the German index of books in print), but is not listed in the current directory of books in print, all works in that book (including the cover art and any included graphic works) are presumed to be out of commerce.

The president of VG Wort, Robert Staats,  gave a presentation on this scheme at the IFRRO workshop. I asked if any changes would be made in the German scheme to bring it into compliance with the requirement of the new EU Directive for determinations of out-of-commerce status to consider all editions and formats. How would VG Wort or German users determine whether works included in out-of-print books are in commerce as self-published Web content, paid downloads, or non-ISBN e-books?

Staats admitted — in front of the EC officials — that changes would have to be made to the German scheme. But he was reluctant to say what the changes might be, and stressed that RROs want to keep the assessment process as quick and simple as possible, and would prefer an Extended Collective Licensing scheme applicable equally to in-commerce and out-of-commerce works to avoid the need for any assessment of in-commerce status at all.

The EC (in Brussels) and the EUIPO (in Alicante, Spain) are open to individual meetings with stakeholders, and are holding invitation-only meetings with a small group of European stakeholders (including FEP, EWC, and EVA), but have no further open meetings or public consultations planned before the launch of the out-of-commerce works portal. The NWU will continue to monitor developments and provide input, to the extent we are able, though our Brussels-based allies at IFJ and IFRRO.