There are a number of provisions in the Copyright in the Digital Single Market (CDSM) Directive that play a crucial role for the activities of cultural heritage organisations such as libraries, archives and museums. With an understanding of how these provisions have operated in practice in the past years, we encourage policy makers to consider introducing change in four areas in order for the Directive to deliver the impact that it originally pursued.

1. Text and data mining (article 3)

The importance of the text and data mining (TDM) regime is eclipsed by the conversation about generative AI, one which is monopolised by large commercial actors, and polarised debates amongst AI developers and copyright rightsholders. This leaves non-commercial, socially-beneficial uses at risk of being overlooked or undermined.

There are many positive applications of TDM in cultural heritage institutions. These support, for example, transcription or enrichment efforts, conducted by members of staff, but also research activities by users of the library, archive or museum that rely on cultural heritage, such as in the digital humanities. Such research activities might not always happen in the framework of a formal enrolment with a research institution, even if they are of a research nature.

We respect the possibility for rightsholders to exercise their rights through communicating an opt-out. While collective management organisations that have obtained mandates from their members can be considered the ‘rightsholders’ who legitimately exercise a TDM opt-out, at the moment some TDM opt-outs are being indirectly exercised by collective management organisations (CMOs) in the context of extended collective licensing for out-of-commerce works. These licenses are granted on behalf of non-members, and as such, the CMO should not attempt to exercise any rights beyond what has been legally established for the extended collective licensing system, which in this case is enabling the dissemination of out-of-commerce works.

The solutions:

• Maintain the TDM exception in article 3, and soften the language to ensure that it encompasses types of ‘research’ in cultural heritage organisations by library, archive or museum users that are not strictly operating in an academic or scientific research setting.
• Emphasise the importance of the rightsholder being the one exercising TDM opt-outs, and the inapplicability of opt-outs exercised by non-rightsholders in extended collective licensing.

2. Preservation (article 6)

Article 6 currently allows cultural heritage institutions to make copies of materials protected by copyright or related rights that are permanently in their collections, in any format or medium, for purposes of preservation.

Limiting the exception to 'preservation' purposes leaves out the making of copies for activities that are essential to the fulfillment of a cultural heritage organisation’s public interest mission, and its ability to properly care for works in the collection (and the collection as a whole). This includes copies for cataloguing, indexing, inventorying, insurance management or bibliography creation.

In addition, cultural heritage organisations can only make copies of materials that are in their permanent collections. This dangerously leaves out of scope culturally and historically relevant information, made available online through websites and social media platforms, which are not always part of the permanent collections of any cultural heritage organisation.

Cultural materials are increasingly produced and accessed in digital form, and this is part of the human knowledge that cultural heritage organisations can preserve for future generations. This reflects an evolution in preservation practices that the Directive needs to take into account. Culture and information has been preserved by libraries and archives under the legal deposit (obligation to deposit by publishers) and administrative competencies of archives (obligation to collect public information within a certain perimeter). Broadcasters have been preserving relevant media they produce and distribute, to which they own the rights.

However, cultural heritage institutions are not entitled to collect and capture relevant content circulating online, since it would require making a copy (of copyright-protected material). Some legal deposit laws recognise web archiving, but copyright law does not follow by enabling that. In addition, technical protection measures are often in place, making it impossible for cultural heritage organisations to obtain data access, in particular to social media platforms.

The solutions:

• Clarify that copies for internal activities that are part of the overall public interest mission of cultural heritage organisations are encompassed under the exception.
• Remove the wording ‘that are permanently in their collections’ from article 6, so that copies of websites and social media can be made as long as they are made in the public interest.

3. Out-of-commerce works (articles 8 to 11)

Only a few organisations are making use of the out-of-commerce works system. Some have been entitled to rely on the exception in cases without a sufficiently representative CMO for the type of material or rights in question, whereas some have gone through lengthy license negotiations. For many other organisations, the process of obtaining a license creates a bottleneck. Cultural heritage organisations have little experience negotiating licenses with CMOs, let alone extended collective licenses. Negotiations tend to stall because of the difficulties in agreeing to certain terms, or because of the lack of interest or low prioritisation from the CMO.

The few organisations that have concluded licenses were successful either because they have a long-standing relationship with the CMO, and/or because they have undergone very lengthy negotiations - which smaller organisations cannot afford.

Furthermore, whenever a sufficiently representative CMO has not agreed to grant a license according to its mandates, the cultural heritage organisation remains stuck in a state of legal uncertainty, without the possibility to rely on the exception.

The solutions:

• Modify the rules so that the extended license only applies when adequate licences are easily available in the market (mirroring the structure of art. 5 CDSM Directive) and are offered by sufficiently representative CMOs.
• Clarify that ‘adequate’ conditions include: a reasonable fee adapted to the public sector, the possibility of disseminating the works outside of the member state, and no subsequent payments for works that have been paid for once.
• Alternatively to the options offered in the two preceding bullet points, clarify that the lack of agreement between the parties leads to the applicability of the exception.

4. The public domain (article 14)

Public domain materials continue to be subject to undue restrictions and limitations to their accessibility and use online. More specifically, some types of public domain materials are left out of scope of article 14; some cultural heritage protection laws and other national legislations override this provision; and the territorial disparities in public domain determinations hinder the internal market and create legal uncertainty for online uses of public domain materials.

The solutions:

• Removing the ‘visual arts’ focus, so that all types of materials are included, such as literary, musical, and cinematographic works, among others, as well as materials that were never protected in the first place, and materials created before the enactment of copyright laws.
• Issuing a recommendation to Member States to safeguard this provision by seeking coherence in national legal frameworks beyond copyright law.
• Stressing that the objectives set out in Recital 53, that is, the access to and promotion of culture as well as access to cultural heritage, should not be compromised when implementation arises.

This position paper represents the views of the Europeana Initiative and its three interlinked bodies: the Europeana Foundation, the Europeana Network Association and the Europeana Aggregators’ Forum. It was initiated in February 2026, prompted by the launch of the review of the 2019 Copyright in the Digital Single Market Directive, which measures the impact of its provisions. The paper was led by the Europeana Copyright Community Steering Group, a group of legal practitioners and academics that are active in the cultural heritage sector in various European countries, and the Europeana Foundation.