Out-of-Commerce: How the Existing Copyright Practices in Film Archives Impact on Widening Public Access to Cultural Heritage
Article 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. This article addresses the problem of out-of-commerce works within the context of film archives, through data gathered through ethnographic and interview research. It will be discussed how copyright shapes and orchestrates wider archival practice. A copyright regime of archival practices is formulated here that proposes a deeper analysis of the likelihood of successful incorporation of out-of-commerce works into existing archival practices. This copyright regime is conceptualised as a discursive system that brings together the different elements of archiving practices: meanings, materials, and competences. Three sub-regimes are proposed: the Oppressive regime; the Pragmatic Compliance regime; and the Active Agency regime.
The value in understanding the existing copyright regime of archival practices is in formulating a theoretical framework for exploring and understanding the diverse copyright practices present and performed in the film archives, as this informs the incorporation of future legal reforms. This article then builds on the formulated theoretical framework, considering the practical likelihood of film archives being able to incorporate Art. 8 into their working practices, drawing on the empirical data gathered. This article concludes that issues of funding, copyright specialism, and fears of reputational harm may weaken the likelihood of successful incorporation into existing practices. Also, the inability to exploit the works commercially is likely to hinder the appeal to film archives, who need to generate revenue to continue their day-to-day work.