Copyright and Risk: Lessons for Article 8 of the DSM Directive

Article 8 of the Directive on Copyright in the Digital Single Market (DSM Directive) sets out a new scheme for the use of “out-of-commerce works” by cultural heritage institutions. This scheme has two limbs: extended collective licensing (ECL) for non-commercial uses of works for which there exists a sufficiently representative collective; and an exception permitting works to be made available on non-commercial websites where no such collective exists. This presentation will analyse a number of philosophical and practical matters in relation to Article 8, drawing from fieldwork conducted with UK and overseas cultural institutions in relation to their copyright management practices. At the core of this analysis will be questions of copyright and risk. The scheme for out-of-commerce works, like those for orphaned works, seeks to respond to the market failures that arise for works that no longer have – or never had – an active rightsholder. It also seeks to encourage the rollout of licensing-based solutions for out-of-commerce works. But is Article 8 fit-for-purpose? And are licensing or bureaucratised solutions ever superior to those grounded in pure risk management?

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Each year the OIPRC hosts a number of leading academics from around the world as part of its Invited Speaker Series. These events typically run from 5:15-6:45pm on Thursday evenings at St. Peter’s College; if the venue or time is different, it will be noted on the Events calendar.  The Speaker Series consists of a presentation of about 45 minutes, followed by a Q&A session with the assembled group of academic staff, students (both undergraduate and graduate), researchers, and interested members of the public.  Discussion is informal and includes participants from several disciplines, with a wide range of prior knowledge.