Use of out-of-commerce works by cultural heritage institutions (Art. 8 DSM)
This (mandatory) exception or limitation allows certain cultural heritage institutions to make available out-of-commerce works and other protected subject matter, for non-commercial purposes. Cultural heritage institutions have to make a reasonable effort to determine whether a work is in or out of commerce, but there is no mandatory search. Member States are allowed to provide specific requirements to facilitate this assessment. Only those materials that are permanently in the collections of an institution can be used under this provision, and the exception only applies for the rights and types of materials for which no collecting management organization qualifies as “sufficiently representative” to grant licenses. The provision does not foresee the possibility to subject the permitted uses to compensation.
The recitals clarify that out-of-commerce materials are those that have never been in commerce and those that were in commerce and no longer are available through customary channels of commerce.