Out-of-commerce, out of mind: widening public access to out-of-commerce copyright works in film archives through the DSM Directive.

Abstract

Art. 8 of the EU Copyright in the Digital Single Market Directive 2019 addresses the issue of out-of-commerce works, enabling cultural heritage institutions (“CHIs”) to provide public access to these copyright works in certain circumstances. Art. 8 enables CHIs to obtain licences from collective management organisations (“CMOs”), avoiding the need to negotiate with each individual rightholder. Art. 8(2) expands this and enables CHIs to make out-of-commerce works available for non- commercial purposes without seeking the rightholder’s permission where there is no representative CMO. This thesis addresses to what extent Art. 8 can successfully benefit film archives and the existing practices of film archivists in widening public access to film heritage. This research has been conducted using an interdisciplinary mixed-methods approach, utilising doctrinal, comparative and ethnographic methodologies. A doctrinal and comparative legal analysis has been conducted to explore whether the new provisions are compatible with the existing EU copyright acquis and international copyright obligations. An ethnographic study of the national film archives of the UK and the Netherlands, as well as a regional film archive in the UK, was conducted to explore existing film archival practices and how Art. 8 might best be incorporated into these practices. This research makes an original contribution to knowledge through the doctrinal and comparative holistic legal analysis of Art. 8 of the DSM Directive, including proposing a sampling mechanism for use by CHIs in determining if works are out-of-commerce. New empirical data is generated from the ethnographic studies concerning film archives and their copyright archival practices, and how likely they are to make use of Art. 8 within these existing practices. A copyright regime of archival practices is formulated in this thesis, which can be utilised in future research within film archives and CHIs more widely. This thesis makes a conceptual contribution to the existing literature through reframing making out-of-commerce works available as a mechanism to address the historic exclusion of certain communities from the archive, as well as the distortion of the digital skew. In addition, this thesis offers a methodological contribution through the application of a mixed-methodology and practice theory to the field of copyright scholarship and out-of-commerce works. It was found that there are a number of legal and practical issues to incorporation into archival practice. This stems from the meanings, competences and materials present within the film archives, using a practice theory lens. Overall, the doctrinal and comparative legal analysis found that there are issues of ambiguity within Art. 8 that will need to be addressed in the national implementations in order to be successful. The rightholder opt-out presents a fundamental departure from copyright doctrine; and is also incompatible with the desire from film archives to uphold rightholder relationships and avoid reputational harm. However, it was also found that there are many films within the collections of the studied film archives that are likely to be out-of-commerce. If concerns relating to the incorporation of Art. 8 into archival practice can be addressed, this could be a significant step forward in widening public access to cultural heritage.