The Netherlands has implemented the Use of out-of-commerce works by cultural heritage institutions (Art. 8 DSM) exception in Artikel 18c Auteurswet. The national exception closely resembles the EU exception.

Implementation summary:

Exception allowing cultural heritage institutions to make available, for non-commercial purposes, out-of-commerce works or other subject matter permanently held in their collections. This exception only applies to sorts of works for which there is no representative collective management organisation that can issue licenses in line with Article 44 of the Copyright act.

Implementation details:

Beneficiaries:

  • Cultural heritage institutions

Purposes:

  • any non commercial purpose

Usage:

  • making available to the public

Subject Matter:

  • works
  • performances
  • phonograms
  • broadcasts
  • film fixations
  • press publications
  • databases

Compensation:

  • not required

Attribution:

  • required, unless impossible

Other Conditions:

  • The work must part of the own collection of the beneficiary
  • The exception only applies to sorts of works for which there is no representative collective management organisation that can issue licenses in line with Article 44.
  • Before making works available in accordance with the exception, cultural heritage institutions must make available identifying information on the out of commerce works portal maintained by the EUIPO for at least six months.

Introduced/last updated: 07 June 2021

Remarks: This exception serves as a fall back exception to the licensing provisions for out of commerce works in Articles 44 - 44b and only applies to sorts of works for which there is no representative collective management organisation that can issue licenses in line with Article 44.

At the time of implementation, certain operative terms, such as the definition of "representative collective management organisation" or specific requirements to determine whether works and other subject mater is out of commerce are still being discussed in a stakeholder dialogue organised by the Ministry of Culture. The Ministry of culture can issue additional rules via an administrative decree.

There are corresponding provisions in Article 10(r) of the Neighbouring rights act and 4a(e) of the Database Act. The exception cannot be overridden by contract.