Out-Of-Commerce Works

Until 6 June 2021, the DPMA managed the register of out-of-commerce works on the basis of section 51 et seqq. of the Collective Management Organisations Act (CMO Act) in the version applicable until that date (old version). A work was out of commerce if it was out of stock. If a collective management organisation intended to license rights to such works within the scope of non-commercial digitisation projects, it had to first register the works in the register of out-of-commerce works. The DPMA effected all entries, pursuant to section 52(2) of the old version of the CMO Act, without carrying out an examination.

The background was the statutory management presumption of section 51 of the old version of the CMO Act although this only covered out-of-commerce print works published before 1966. According to that provision, collective management organisations were allowed to license rights to reproduction of out-of-commerce works and of making those works available to the public even if the holders of those rights had not mandated the collective management organisation with the management of their rights. Thus licensing enabled institutions which were publicly accessible and had been established for the common good, in particular, libraries, educational institutions, museums and archives, to comprehensively digitise the cultural heritage, making it accessible to the general public.

Since 7 June 2021, it has no longer been possible to make entries in the register of out-of-commerce works, according to section 141(2) of the CMO Act. The background is the new version of sections 52 et seqq. of the CMO Act to implement Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (DSM Directive). According to it, an out-of-commerce work must be entered in the Out-Of-Commerce Works Portal managed by EUIPO (European Union Intellectual Property Office). The register of out-of-commerce works previously managed by the DPMA will be closed upon expiry of 31 December 2025 after a transitional period (section 141(5) of the CMO Act). Until then, the register can still be consulted. Oppositions pursuant to section 51(2) of the old version of the CMO Act may also be filed. Licences pursuant to section 51 of the old version of the CMO Act shall end by virtue of law on 31 December 2025 pursuant to section 141(3) of the old version of the CMO Act. Until then, holders of such licences have time to have the works registered in the EUIPO portal in order to continue to use them on the basis of a grant of rights pursuant to the newly amended sections 52 et seqq. of the CMO Act. Further information is available on the EUIPO website.