Blog post by Maarten Zeinstra
See also the Kluwer Copyright Blog post by Ariadna Matas and Maarten
In November 2025, Knowledge Rights 21 (KR21) reported on the systemic challenges facing the Out-of-Commerce (OOC) regime under the EU Copyright in the Digital Single Market (DSM) Directive. KR21, COMMUNIA, and Europeana all argue that significant structural flaws within Articles 8–11 heavily restrict the efficacy of the regime.
However, a recent Dutch success story serves as a notable exception to the slow implementation and systemic bottlenecks seen across Europe. This larger publication of out-of-commerce heritage is the result of a “perfect storm” of policy, funding, and proactive politics. It points to what is possible.
A Perfect Storm in the Netherlands
In May 2026, the Netherlands Institute of Sound and Vision (Beeld & Geluid) launched a new collection portal called De Schatkamer (The Treasury). The platform unlocks over 700,000 audio and audiovisual archival items that were previously unavailable on the open internet. These include daily historical newsreels from Dutch public broadcasters and iconic television series—such as Floris starring Rutger Hauer—that are no longer available through customary commercial channels.
This milestone was partly achieved by successfully registering nearly half a million OOC audiovisual works without having to undertake the impossible task of seeking permission from unknown rightsholders. Other parts of the publication contain public domain works and works made available under traditional licensing agreements with rights holders.
Is the OOC Regime a Success?
To assess whether this means that the OOC regime is a success, we have to look at the broader European landscape. Across the EU, roughly 2.7 million OOC works have been registered. This is a relative success in relation to the objective failure of the 2012 Orphan Works Directive, which has seen fewer than 10,000 registered works in nearly 15 years. However, over 90% of these 2.7 million works come from just three jurisdictions. Furthermore, 20% of all registered works in the entire EU belong solely to this single Beeld & Geluid collection. As Aristotle said, one swallow (or even 700,000 in this case) does not make a summer.
The Netherlands represents roughly 4% of the EU population. If every Member State had similar collections and was making OOC works available at the same rate as Beeld & Geluid, we would see over 12.5 million registered audiovisual works alone—to say nothing of literary and visual arts. Instead, close to 90% of all registered OOC audiovisual works are from the Netherlands.
Unlike most Member States, the implementation of the DSM Directive in the Netherlands led to intensive, productive stakeholder negotiations. Co-led by Maarten Zeinstra (KR21 National Coordinator), these dialogues culminated in the Out-of-Commerce Convenant Audiovisuele Werken, launched in October 2023. Note that this is still after almost two years of negotiations with a group of willing and cooperative parties. The Netherlands has concluded similar agreements for music and periodicals.
Political alignment was equally important. The same year the DSM Directive was implemented, the fourth Rutte government took office with an explicit objective to open up Beeld & Geluid’s archives to the public. To realise this, the state roughly provided about 12-15 million euros in funding over these past five years. Notably, these funds were used for the technical development, maintenance, licensing of in-commerce-works and administration of the platform—the OOC license itself carries no licensing fees.
The Power of the Fallback Exception
The Schatkamer collection consists of roughly 60% in-commerce works with a traditional in-commerce license. Only about 0,25% of the collection is public domain. The vast majority of the remaining works in the collection were not unlocked by an extended OOC collective license, but rather by the OOC fallback exception.
This reliance on the fallback exception was driven by two main factors:
- A “Whole Work” Approach: The Dutch framework evaluates an audiovisual work as a single, unified work rather than dissecting its constituent parts. The work is treated as OOC as a whole, even if an underlying component (such as the book it was adapted from or its theme song) is still in commerce. We see the producer as the party who can give permission to make the work available. This is common practice for in-commerce works, so it should be common practice for OOC works as well.
- CMO Scope Limitations: Because of this unified approach, the licensing agreement only needed to involve the producer and their sufficiently representative collective management organisation (CMO), StOPnl. However, StOPnl explicitly stated that they only represent independent producers. Works produced by corporate entities, government bodies, or internal broadcaster staff fell outside the CMO’s scope. There is no CMO representing these producers.
Because these vast categories sat outside the CMO’s mandate, the fallback exception applied automatically. Consequently, about 96% of all records that were registered at the EUIPO have a legal basis in the fallback exception (485.013) rather than an extended collective license (17.725).
More importantly, the negotiation process intentionally included those broadcasting organisations representing large rightsholders who, due to CMO structural rules, could not become part of the OOC license. Their works could be registered under the fallback exception. Including their perspectives into the dialogue effectively minimised the risk of mass opt-outs. They were, therefore, more at ease with the intent of heritage institutions to use these materials.
Flipping the Script: Moving to an “Exception-First” Model
Recent findings by KR21 and COMMUNIA demonstrate that most European jurisdictions completely lack this “perfect storm”. Many Member States have no or no effective stakeholder dialogues, leading to protracted, costly negotiations, explicit refusals to license, and a fundamental misalignment between the goals of CMOs and cultural heritage institutions (CHIs). As a result, the European Union’s objective of promoting the OOC works provisions is not achieved.
To remedy these market failures, KR21 advocates for immediate actions based on its Insights report:
- Complete Transposition: Ensure the full and proper legal transposition of the DSM Directive across all remaining EU Member States.
- Rigorous Dialogue: Structured stakeholder dialogues with robust representation for CHIs.
- Legislative Realignment: KR21 recommends an explicit legislative shift to dismantle current failure points. The law must be clarified so that a CMO’s refusal to negotiate or offer a license automatically triggers the fallback exception.
By shifting from a “license-first” to an “exception-first” model, Europe can put an end to the current “CMO veto.” This will ensure that Europe’s rich cultural heritage can be shared widely with the public, while still safeguarding creators via standard, accessible opt-out mechanisms.
23 June 2026
