Public consultation on the transposition of Directive (EU) 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (Directive on Copyright in the Digital Single Market) Consultation Paper No. 3

Consultation Paper No. 3: Articles 8-11 on Out-of-Commerce Works and Article 12 on Collective licensing with an extended effect.

The Department of Business, Enterprise and Innovation is seeking the views of stakeholders and interested parties on the transposition of EU Directive 2019/790 into Irish law.

Directive 2019/790 (hereinafter the “Copyright Directive”) was published by the European Commission in September 2016 as part of a series of legislative proposals under the Digital Single Market strategy. The Directive provides a framework for the creation of modern European copyright legislation to take account of technological developments in the digital age while continuing to ensure that creators are remunerated for their creative efforts.

The Directive contains a number of provisions that will further harmonise copyright exceptions in the areas of research, education and cultural preservation, provide protection for press publishers for the online use of their content and measures to address the “value gap” whereby rightholders can derive greater economic value for the use of their content online.

The deadline for transposition of the Directive into national legislation is 7 June 2021.

The Department is publishing a series of public consultations regarding the transposition into Irish law of the Copyright Directive. The third consultation is seeking input on the transposition of articles 8-12 of the Directive.

  • Article 8 provides for a regulatory framework to allow collective management organisations to conclude licences with cultural heritage institutions for the reproduction, digitisation, or making available of out-of-commerce works that are in the permanent collections of the institutions, provided the use if for non-commercial purposes. Article 8 also provides for an exception to copyright law that will allow cultural heritage institutions to digitise and make available out-of-commerce works in their collections in situations where no adequate licence is available from a collective management organisation or when the cultural heritage institution encounters difficulties in obtaining the necessary authorisation from the rightholder.
  • Article 9 provides that the licences granted for the use of out-of-commerce works may apply to cultural heritage institutions in any EU Member State (cultural heritage institutions and collective management organisations are free to agree on the territorial scope of the licence). However, the use of out-of-commerce works made under the exception can only take place in the Member State where the cultural heritage organisation undertaking the work is established.
  • Article 10 provides that the arrangements put in place to allow rightholders to exclude their works from the licensing mechanism or the exception, are adequately publicised, particularly where uses take place across borders in the EU. To achieve this a single publicly accessible online portal for the EU will be created to make such information available to the public for a reasonable period of time before the use of the out-of-commerce work takes place.
  • Article 11 provides that there must be stakeholder engagement between rightholders, collective management organisations and cultural heritage institutions in each sector, before establishing the specific requirements to ensure that a work is out-of-commerce, such as checking that the work is not available to the public through customary channels of commerce.
  • Article 12 provides that where a collective licensing organisation enters into a licensing agreement for the use of works, such an agreement can be extended to apply to the rights of those rightholders who have not authorised that collective management organisation to represent them, or the organisation has a legal mandate or is presumed to represent rightholders who have not authorised the organisation accordingly.

A final consultation papers will issue at a later date seeking input on the transposition of the remaining provisions in the Directive, namely; fair remuneration (articles 18-23).

Respondents are requested to send their submissions in writing (clearly identifying the consultation paper number) and, where possible, by email to

Submissions to this consultation may be posted to: 

            Copyright Directive Consultation

            Consultation Paper No. 3

            Copyright Section

            Intellectual Property Unit

            Department of Business, Enterprise and Innovation

            23 Kildare Street

            Dublin 2

            D02 TD30 

The closing date for submissions to this consultation is 5pm on Wednesday, 4 December 2019. Any questions regarding the consultation can be emailed to

Published by Innovation and Investment Division

Topics: Intellectual Property