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Out-Of-Commerce Works

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Register of Out-of-Commerce Works

The DPMA keeps the Register of Out-of-Commerce Works (Sec. 51 et seqq. CMO Act). A work is out of commerce if it is out of stock. If a collective management organisation intends to license rights to such works within the scope of non-commercial digitisation projects, it must first register the works in the Register of Out-of-Commerce Works.

The background is the statutory management presumption of Section 51 of the CMO Act although this only covers out-of-commerce print works published before 1966. According to this provision, collective management organisations may 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 have not mandated the collective management organisation with the management of their rights. Thus licensing enables institutions which are publicly accessible and have 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.

If a collective management organisation wants to invoke the management presumption of Section 51 of the CMO Act, the work concerned must be registered, upon request of the collective management organisation, in the Register of Out-of-Commerce Works, before concluding a licensing agreement. The DPMA effects all entries, pursuant to Section 52(2) CMO Act, without carrying out an examination.

Please note: The register does not constitute a documentation of all works that are out of commerce in Germany.

Objection of the right holders

Through inspection of the Register, you as a right holder will get the opportunity to conduct a search for your work. You can object to the intended licensing by the collective management organisation and in this way contradict the statutory management presumption anytime.
As user institution you can see which works have to be excluded from the digitisation projects as the register includes details about the work itself (in particular, the title of the work, author and publishing house) and also the information as to whether a right holder has lodged an objection.

Statuatory framework

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Last updated: 23/11/17 

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