Facilitating Access to Out-of-Commerce Works in the Digital Single Market : How to Make Pico della Mirandola’s Dream a Reality in the European Union

Renaissance genius Pico della Mirandola dreamed of making all knowledge accessible in one place. The Proposal for a Directive on Copyright in the Digital Single Market could help Pico’s dream come true. The proposal, inter alia, aims at facilitating wider access to Europe’s cultural heritage through the introduction of a mechanism enabling the use of out-of-commerce works by cultural heritage institutions in the digital environment. After examining the key elements of this mechanism, this article critically discusses the definition of the scope of search required for establishing the out-of-commerce status of works, the requirement of the representative character of collective management organisations, and the non-application of the mechanism to third-country works. This Opinion also looks into the coordination between the CJEU’s Soulier decision and the Directive Proposal, with special emphasis on the sufficiency of general publicity measures, and the creation of the EUIPO’s out-of-commerce online database. In conclusion, while being supportive of the proposal and the idea of promoting more access to out-of-commerce works, this article provides some suggestions for improving the text