Balance of Rights in Directive 2019/790 on Copyright in the Digital Single Market – Is the Opt-out Clause Sufficient for the Protection of Author’s Moral Rights?

Abstract

Digitization is an important process taking place within contemporary legal systems, leaving its fingerprints on different branches of law and forcing changes to traditional industries while not sparing the system of cultural heritage protection. Cultural institutions are nowadays facing the challenge of combining mass digitization with public access to works which are part of their collections. At the same time they are struggling with the applicable copyright law. The new EU Directive on Copyright in the Digital Single Market addresses those needs, introducing a system of extended licencing granted by Collective Management Organizations (CMO) and facilitating an easier access to works which, due to their unresolved copyright status, were not ready to be publicly displayed. This article addresses the problem of striking a balance between the private and public interests involved in this process by analysing the opt-out procedure to the new licencing scheme, and confronting it with the traditional protection granted to authors based on moral rights. It seeks to answer the question whether the new opt-out system is sufficient to protect an author’s interests arising from his or her moral rights, and whether such interests would also be sufficiently safeguarded after an author’s death (post mortem auctoris).