Changes to the legal bases
With the amendments to the German Copyright Act (UrhG) and German Collecting Societies Act (VGG) in line with European law, a new chapter begins for the licensing of out-of-commerce works. The licensing service for out-of-commerce works (VW-LiS) and its consolidated processes provided the model for the new European regulations governing the licensing of out-of-commerce works.
The legal amendments also include long-awaited expansions that offer cultural heritage institutions more options in terms of digitising and making publicly accessible their collections, as well as granting users greater participation.
Worthy of mention is the planned 30-year moving wall that removes the previous restriction on licensing out-of-commerce printed works published up to 1965. Furthermore, the new legal framework for the first time empowers the collecting societies to grant licences for other types of work.
What impact does the new law have on the VW-LiS licensing service?
The laws enshrining the European guidelines in German law are came into force on 7 June 2021. In terms of the applicable regulations and processes governing the licensing of out-of-commerce works, this will result in the following changes:
from 7 June 2021, the licensing of out-of-commerce works will no longer be possible in its present form. The application process of the licensing service for out-of-commerce works (VW-LiS) will therefore be temporarily suspended.
- Registered cultural heritage institutions will continue to have access to their VW-LiS user account after 7 June 2021 in order to administer their data and licence applications.
- Previously granted licences will remain valid. No action is required in this regard on the part of the cultural heritage institutions.
Implementing the legal bases
In order to be able to use the new legal basis and its potential fully and with legal certainty, new framework agreements are required. Among other things, it must be examined whether a supplementary legal ordinance (§ 52d VGG) should be issued for this purpose. In future, out-of-commerce works will be recorded in a central European register. This requires technical improvements and new developments for the continuation of the familiar automated and convenient processing of your licence applications via VW-LiS.
For the licensing of out-of-commerce works in books and printed works, the German National Library will continue to collaborate closely with the collecting societies VG WORT and VG BILD-KUNST. The aim is to be able to resume the licensing of out-of-commerce works as speedily as possible.
Milestones in the resumption of licensing out-of-commerce works:
- 7 June 2021: Entry into force of the amendment to German copyright law in line with the requirements of the digital single market
- 1 June 2023: Enactment of the Nicht-verfügbare-Werke-Verordnung (NvWV) (Out-of-Commerce Works Regulation) by the Federal Ministry of Justice pursuant to section 52d VGG in conjunction with section 61e UrhG.
- Discussion and coordination of a framework agreement for the licensing of out-of-commerce works within the remit of VG WORT and VG BILD-KUNST
- Presentation and signing of the contract by the state ministers of education and cultural affairs at the Standing Conference of the Ministers of Education and Cultural Affairs
- Link-up of the IT-supported licensing processes with the European register of out-of-commerce works maintained by the European Union Intellectual Property Office (EUIPO)
- Resumption of the licensing of out-of-commerce works and the licensing service for out-of-commerce works (VW-LiS) with expanded functionality
It is currently impossible to predict how long the necessary steps will take and when the licensing of out-of-commerce works can be resumed. All of the institutions and committees involved in this process are working very hard on the implementation. We will inform you of any news and progress.
FAQs on the legal bases
Frequently Asked Questions (FAQs) on legal frameworks and the European Out-of-Commerce Works Portal
Why does the licensing service still refer to “out-of-commerce works” and not to “unavailable works”?
Directive (EU) 2019/790 on copyright and related rights in the digital single market (Digital Single Market Directive, DSM) facilitates licensing not only for other types of works but also for works that have never been published or disseminated. The term “unavailable works” therefore encompasses unpublished works and works that are not offered through standard distribution channels.
The term “out-of-commerce works” refers to a subset of unavailable works for which an offer of publication was made but which are no longer “in stock”.
Since licensing service procedures and collecting society competences are mostly concerned with the subset of out-of-commerce works, and there is an established, fundamental understanding of “out-of-commerce works” in the professional community, the term “out-of-commerce works” is still used in connection with the licensing service.
“Unavailable works” are explicitly referred to below whenever this is helpful for explaining legal principles and procedural matters.
I would like to offer legal online access to unavailable works in my collection. What are my options, and what must I bear in mind?
The German legislators have introduced a three-tier model to implement the Digital Single Market Directive(DSM):
§ 51 VGG - Extended collective licensing (ECL)
The collecting societies provide information on their websites about grants of collective licences with extended effect and the terms that apply.
§ 52 VGG - Extended collective licensing in relation to unavailable works
The legislators have opened up new possibilities exclusively for cultural heritage institutions, thus allowing them to legally grant open access to their collections online. Licences for unavailable works are granted by collecting societies deemed “representative” in their spheres of competence.
§ 52a VGG replaced the legal basis for the licensing of out-of-commerce works in mid-2021; it consequently forms the new basis of the licensing service for out-of-commerce works. (VW-LiS).
§ 61d UrhG – Unavailable works
If there is no collecting society that can exercise the rights for a specific type of work, e.g. because no such collecting society exists or the existing society or societies are not sufficiently representative, § 61d includes an exception that allows cultural heritage institutions to make special collections available to the public. In these circumstances, access is granted with no further “legal safeguards” (e.g. against objections by rights holders).
The licensing service is still suspended. Until it resumes, can I invoke § 61d UrhG to make out-of-commerce works or printed matter freely available online?
No. The absence of a licensing service offer from a (representative) collecting society does not permit blanket recourse to the exception provided for in § 61d UrhG. A new framework agreement is to be concluded for the licensing of out-of-commerce publications within the competence of the collecting society VG WORT. The option of applying for licences through the licensing service will be reactivated when the new framework agreement comes into force.
Exceptions may include unavailable works such as unpublished manuscripts or works for which no publication offer has ever been made (e.g. archival materials) that do not lie within VG WORT’s sphere of representation and can therefore be used without licences as specified in § 61d. Your institution is responsible for determining whether the necessary conditions of use are actually fulfilled.
What is the Out-of-Commerce Works Portal?
The Out-of-commerce Works Portal (OOCW Portal) is the central directory for works used by cultural heritage institutions in EU member states under the provisions for unavailable works set out in the Digital Single Market Directive (DSM). The OOCW Portal is developed and operated by the European Union Intellectual Property Office (EUIPO).
The OOCW Portal superseded the German Register of Out-of-Commerce Works maintained by the German Patient and Trade Mark Office with effect from 7 June 2021. The transfer of data from the German Register to the new OOCW Portal will be complete by the end of 2025 (see § 141(3) VGG). Previously granted licences will remain valid.
Which works (metadata) are published in the Out-of-Commerce Works Portal and why?
According to German legislation, information about all works used on the basis of § 52a VGG and 61d UrhG must be published in the OOCW Portal . Each work is identified using basic bibliographic metadata made available to the public. The Portal does not offer access to digitised works.
The OOCW Portal is the first point of contact for rights holders wishing to object to the use of their works.
Who publishes data on unavailable works in the Out-of-Commerce Works Portal?
If licences for unavailable works are granted by a collecting society, the society must enter this data into the OOCW Portal . When licensing out-of-commerce books/printed matter through the VW-LiS licensing service, the data is entered by VG WORT:
- § 52a (1) 1 no. 4 VGG
the collecting society discloses information [...] in the online portal of the European Union Intellectual Property Office […]
Only if there is no sufficiently representative collecting society and the use of the works is based on the default regulation is the cultural heritage institution responsible for making the disclosure:
- § 61d (3) 3 UrhG
the cultural heritage institution must provide access to information about the respective works in the online portal of the European Union Intellectual Property Office throughout their periods of use […]
Do I have to register my institution in the Out-of-Commerce Works Portal?
There is no obligation to register your institution in the OOCW Portall. It is unlikely that registration will be required even when licensing out-of-commerce works. We will notify you whether and for what purpose your institution’s data will be transferred to the OOCW Portal when licensing out-of-commerce works as soon as this information becomes available to us.
Registration in the OOCW Portal is only necessary if your institution wishes to use works under the default regulation in § 61d UrhG; if this is the case, your institution will become responsible for disclosing the data required by law. (vgl. § 1d (1) 1 no. 4).
Does the EUIPO grant licences for unavailable works?
No. The European Union Intellectual Property Office (EUIPO) does not grant licences. Licenses for unavailable works are still granted solely by the competent collecting societies.
Contact
Email: vergriffene.werke@dnb.de
Phone: +49 69 1525-1079
