1 Introduction

The last and most important intervention of the EU legislator in the field of copyright – the Directive on Copyright in the Digital Single Market (CDSMD, 2019/720/EU)Footnote 1 – will be remembered as a landmark step in the harmonisation process in the field, with the same standing as the historical InfoSoc Directive of 2001.Footnote 2 The Directive introduced a number of innovative and highly debated provisions, from the liability of online content-sharing platforms to the new related right of online press publishers, and made an important move in the field of authors’ remuneration, intervening directly for the first time in copyright contract law. However, the CDSMD will also be long remembered for the decisive shift in the approach towards copyright exceptions and limitations (E&Ls), all of which have been declared mandatory, in light of their impact on the balance between copyright and fundamental rights and of their relevance in cross-border uses of protected works.

Against the background of such a historical turn, which builds on a wealth of studies highlighting the challenges raised by copyright territoriality and the optional nature of its balancing mechanisms – in contrast with fully harmonised exclusive rights – this is now the time to take stock of the more than two decades of harmonisation in the field, reassess the state of the art, and redefine the steps that still need to be made to make EU copyright a balanced and sustainable system fitting the needs of the EU digital single market. To this end, the H2020-funded project reCreating Europe performed an unprecedented comparative mapping of EU and national provisions involved in the copyright balance (exceptions and limitations, definition of protectable subject-matter, terms of protection, exhaustion, judicial doctrines, statutory licensing schemes, paying public domain et al. – together defined as “copyright flexibilities”), offering national and comparative reports on the state of the balance between copyright and conflicting uses, grouped into twelve homogeneous categories. This article will provide an overview of the background, methodology (Sect. 2) and main results of the research, sketching the past and present of EU copyright flexibilities (Sect. 3). On this basis, it will provide general and specific recommendations for future reforms (Sect. 4).

2 Background and Methodology of the Research

The research was able to build on an ample and varied literature and adopt a holistic approach to the matter. Institutional works that were taken into account as background were studies commissioned or developed independently by organisations representing stakeholders;Footnote 3 reports issued by international agencies and organisations and regional/national legislators, ranging from the UNFootnote 4 and the WIPO Standing Committee on Copyright and Related Rights,Footnote 5 to independent studies and staff working documents commissioned by EU institutions to assess the effectiveness of E&Ls in the Union.Footnote 6 The increasing expansion of copyright also triggered numerous and valuable academic contributions, which adopted a variety of methodological approaches and spanned several jurisdictions. Their main focus revolves around the pitfalls affecting EU harmonisation in the field,Footnote 7 the evolution of the notion of the public domain, and the effectiveness of the system of E&Ls in the digital environment.Footnote 8 Recent publications feature comprehensive analyses of the current state of the art in the field in an attempt to systematise the matter with the help of theoretical, comparative and legal design approaches,Footnote 9 or to propose innovative solutions to rethink flexibilities in international and EU copyright law.Footnote 10 The research also benefitted from previous attempts at mapping Member States’ copyright E&Ls across EuropeFootnote 11 and internationally,Footnote 12 and from current experiences of mapping the national implementation process of the CDSM Directive.Footnote 13 None of these efforts, however, resulted in fully comprehensive analyses of all the copyright balancing tools, nor in a sufficient geographical coverage or in a dynamic comparative analysis that could critically assess the state of the art in the field. Filling in this gap was the ultimate goal of the research on EU copyright flexibilities performed within the framework of the H2020 project reCreating Europe.

Building on this background, the study took a step forward and provided a holistic, analytical account of EU copyright flexibilities, with the aim of (a) assessing their degree of harmonisation across the EU and the impact of their territoriality and optional nature on the proper functioning of the system; (b) mapping which “uses” and “purposes” are balanced against copyright and with what results, both in the EU and in each Member State; (c) identifying the regulatory gaps and enablers impacting on the proper functioning of copyright flexibilities across the Union. To this end, it performed a comprehensive mapping and analysis of all public regulatory sources in the field, evaluating the approach of the EU and each national legislator/judiciary vis-à-vis specific sectors, and the degree of convergence/divergence of national solutions. It also introduced a new classification of flexibilities going beyond the study of mere E&Ls, and categorises provisions according to the purpose they serve rather than the mechanism they use (E&Ls instead of statutory licenses, remuneration rights, paying public domain, exclusion from the subject matter etc) or the source by which they are regulated (e.g. statutes vs case law). This methodological approach, which is both functional and empirical, was adopted with the aim of providing a more precise outlook on the current state of the copyright balance with respect to specific beneficiaries and aims,Footnote 14 and of bringing systemic order in the matter while also reflecti ng its complexity and the interrelations between individual instruments and doctrines.

The blended taxonomy of copyright flexibilities used both in the questionnaires and in the final national and comparative reports was articulated around categories of uses, purposes/goals and rights/interests balanced against copyright, coupled with horizontal, all-encompassing and general categories (e.g. public domain). This resulted in a classification organised into 14  distinct groups of flexibilities, as follows:

  1. 1.

    de minimis uses (e.g. temporary reproduction, ephemeral recording, incidental inclusion, acts necessary to access and normal use by lawful user, freedom of panorama);

  2. 2.

    private non-commercial uses (e.g. reprography, private copy);

  3. 3.

    quotation;

  4. 4.

    parody, caricature and pastiche;

  5. 5.

    uses for teaching and research purposes (private study, illustration for teaching and scientific research, digital use for illustration for teaching, text and data mining);

  6. 6.

    uses for informational purposes (press review and news reporting, use of public speeches and lectures);

  7. 7.

    uses by public authorities (uses in legislative and judicial proceedings, other uses);

  8. 8.

    socially oriented uses;

  9. 9.

    cultural uses (public lending, lending, preservation of cultural heritage, uses of orphan and of out-of-commerce works, specific uses by cultural heritage institutions);

  10. 10.

    uses by persons with disabilities;

  11. 11.

    the three-step test;

  12. 12.

    public domain (subject matter excluded from protection, paying public domain schemes);

  13. 13.

    special licensing schemes (mandatory, statutory, ECL);

  14. 14.

    external copyright flexibilities (fundamental rights, consumer protection, copyright contract law, media law, other instruments).

Exhaustion was not considered in light of the scarce and irrelevant nature of the data available for the comparative analysis.

The assessment of public regulatory sources required an approach that intertwined qualitative, systematic, plain-comparative and functional-comparative analyses. After a thorough review of the literature to shape the focus of the study, the first phase of the mapping was conducted as desk research and concerned EU Directives and Regulations, preparatory works and CJEU case law. The second phase included the preparation and administration of a questionnaire to national experts based on key principles of comparative law methodology. Thirty-six experts from 27 Member States responded to the questionnaire by December 2020, and to a follow-up covering amendments and the implementation of the CDSM Directive by March 2022.Footnote 15

EU sources were analysed and classified through plain systematic analysis, while answers to the questionnaire were harmonised, verified against national sources (statutes and case law) and channelled into a database that is now freely available online (http://ww.copyrightflexibilities.eu).Footnote 16 Each national provision was classified on the basis of the taxonomy mentioned above, and qualitatively compared to the corresponding EU provision if such existed, in order to evaluate its convergences, divergences and relative degree of flexibility vis-à-vis the EU model. This led to the preparation of 12 comparative reports, one for each of the categories listed above, with the exclusion of sectors where the limited availability of data and/or their fragmented nature did not allow the performance of a verifiable analysis (e.g. external copyright flexibilities).Footnote 17 The comparative reports were not limited to the juxtaposition of national provisions, but elaborated on the functional effects of each policy option on the copyright balance, with a focus on beneficiaries, requirements, conditions of applicability, scope, limitations and other features, in order to establish methodologically sound bases on which to evaluate the harmonisation of EU copyright law and the attitude of each Member State with respect to specific uses, works and beneficiaries.

3 The Past and Present of EU Copyright Flexibilities

Three years of mapping and analysis of EU and national sources of copyright flexibilities produced a very comprehensive and up-to-date overview of the state of the art of the copyright balance in the Union and in each of its Member States, and led to new and interesting findings that may inspire future legislative interventions in the field. The following pages will offer snapshots of the main conclusions of the study with regard to (a) EU legislative acts, (b) CJEU case law, and (c) Member States’ laws, providing concise references to background sources and data.

3.1 EU Legislative Acts

The research covered all Directives, Regulations and preparatory works that in a relevant manner touched issues related to the copyright balance. The range of sources was limited to a reasonable number by eliminating provisions that only cursorily referred to copyright matters or the position of end users. The final sample included 15 Directives and two Regulations issued between 1991 and 2022. Provisions were categorised and analysed according to the taxonomy illustrated above.

Compared to the challenges highlighted by commentators in the past, the EU legislator has made several positive steps forwards, such as the standardisation of rules in specific fields (orphan works, out-of-commerce works, digital teaching, preservation of cultural heritage, text and data mining for scientific research, quotation, caricature, parody and pastiche for users of online content-sharing platforms (OCSSPs)). However, the study identified some persisting flaws, of which three deserve special mention.

  1. (i)

    A conceptual fragmentation of copyright flexibilities, with remaining lacunae. EU copyright law continues to maintain a strict approach to E&Ls, which are framed within a closed list and do not feature any flexible clause that could respond to newly emerging needs for balance caused by the evolution of markets, technologies and socio-cultural phenomena.Footnote 18 After the InfoSoc Directive, which left Member States free to pick and choose among twenty optional E&Ls that tried to cover as many conflicting interests as possible by using very general and vague definitions,Footnote 19 subsequent Directives and Regulations intervened on very specific balancing problems,Footnote 20 thus creating a clustered net of rules that at the same time shows overlaps and still leaves uncovered important beneficiaries and interests, including in situations where the balancing needs are similar to those already addressed by existing provisions. Examples of areas flawed by this problem are teaching and research, cultural access and preservation, disabilities, and uses related to freedom of expression.

  2. (ii)

    The existence of multiple regimes to the detriment of legal certainty. After a long history of optional E&Ls, the EU legislator decided to overcome the problems created by copyright territoriality by introducing a number of mandatory horizontal provisions (e.g. the orphan work exception, the exception for persons with visual impairment, the CDSM exceptions for text and data mining for scientific research, digital education and preservation of cultural heritage), and declaring mandatory in specific fields exceptions that are generally optional (parody, quotation, caricature and pastiche for users of OCSSPs). This has led to a situation where some beneficiaries and cross-border uses enjoy legal certainty thanks to the uniformity of national laws, while others still suffer from the negative consequences created by the fragmentation of Member States’ solutions as to beneficiaries, works covered and additional conditions of applicability, caused by the optional nature of several EU copyright E&Ls. Further uncertainty is created by the fact that the application of the mandatory or optional regime to single E&Ls does not follow explicitly enunciated or otherwise clarified rationales. Glaring examples are the attribution of a mandatory nature to the exceptions (a) for visually impaired individuals and not to other disabled individuals; (b) for digital education purposes and not for general teaching needs; and (c) for quotation, parody, caricature and pastiche by users of OCSSPs but not in general. This makes it difficult, if not impossible, to identify common patterns in the qualification of a provision as mandatory or optional, again to the detriment of legal certainty.

  3. (iii)

    The outdated nature of several provisions, which severely limits their impact on the copyright balance in new settings. Due to the strict reading of existing exceptions and the outdated nature of some of their key concepts and definitions – e.g. the material-only notion of “copy”Footnote 21 or the technical interpretation of the notion of “reproduction”Footnote 22 – a number of E&Ls end up not being able to respond to several new balancing needs. This circumstance, coupled with the inevitable slowness of the legislative process in following the evolution of markets and technologies, leads to remarkable delays in the readjustment of the copyright balance (see, e.g., the long wait that preceded the enactment of the TDM, cultural preservation and digital teaching E&Ls), and to the impossibility of applying existing flexibilities to the digital environment (see, e.g., the case of exhaustion,Footnote 23 reprography and private copyFootnote 24).

3.2 CJEU Case Law

In order to effectively assess the state of EU copyright flexibilities, the study mapped and analysed more than 50 decisions issued by the CJEU from 2006 to July 2022. The contextual and systemic analysis of the arguments developed by the Court helped to highlight trends in the interpretation of specific provisions, to extract the key components of judicial-only doctrines that were consolidated in the past two decades, and to assess the degree of harmonisation of copyright flexibilities in the Union. The research sketched a heterogeneous picture, characterised by six main threads.

  1. (i)

    Mostly due to the fragmented nature of referrals, the CJEU has considerably harmonised some flexibilities and specified them in great detail, while other provisions have been largely left uncovered, albeit with a general positive trend in the recent past. One of the areas that has been subject to the most pervasive intervention is the private copy exception (Art. 5(2)(b) InfoSoc), where the Court has provided detailed guidelines for the interpretation of the notion of “fair compensation” as an autonomous concept of EU law,Footnote 25 identified in the amount that makes good the harm suffered by the author as a consequence of the copy.Footnote 26 Throughout a plethora of decisions,Footnote 27 the CJEU took the opportunity to elaborate on the notion of “fairness” and – despite the great factual specificity of each case – to develop a number of principles to assess the legitimacy of the exercise of discretionary power by Member States in establishing national private levy schemes.Footnote 28 Mechanisms that charge producers for the payment of compensation for private copies that can potentially be made with their devices are always judged to be fair, since their activity is a factual precondition for the copy, and they may pass the cost to final users by increasing the product price, while individual enforcement would be ineffective and too costly.Footnote 29 In this context, the Court ruled that the scheme should ensure that only those final users can be charged who are beneficiaries of the exception,Footnote 30 and also distinguished between lawful and unlawful sources, imposing levies only on the former.Footnote 31 More generally, a mechanism is now deemed fair if it sets a fair balance between conflicting interests,Footnote 32 i.e. if it excludes compensation in the case of minimal harm,Footnote 33 offers a simple, well publicised and transparent reimbursement system for non-beneficiaries of the exception,Footnote 34 and does not discriminate between economic operators.Footnote 35 The clarifications made to the interpretation of Art. 5(2)(b) InfoSoc were also transposed by analogy to the reprography exception (Art. 5(2)(a) InfoSoc). This helped the Court to shape e contrario the scope of both provisions, by noting that the reprography exception does not feature a limitation as to the type of beneficiaries and the purpose of the use, and that the private copy exception applies to any medium of reproduction and not just to reproductions effected by means of photographic techniques.Footnote 36 Similarly, this allowed a ruling that the principles developed to interpret the notion of fair compensation under Art. 5(2)(b) InfoSoc shall also be used under Art. 5(2)(a) InfoSoc,Footnote 37 with an appropriate distinction between reprographies made for private non-commercial uses by natural persons and other cases, in light of the different harm caused to rightholders. Another area that has been subject to a consolidated harmonisation is Art. 5(1) InfoSoc, which introduces the only mandatory exception under the Directive. Back in 2009 the CJEU already spelled out the five requirements that should be met for the provision to operate,Footnote 38 and gradually specified the content of each condition,Footnote 39 emphasising the need for a strict interpretation of the provision.Footnote 40 Other flexibilities, however, did not enjoy the same level of attention. In this respect, it is worth noting the silence on incidental inclusion (Art. 5(3)(i) InfoSoc), on technological protection measures and their interplay with L&Es (Art. 6(4) InfoSoc), on freedom of panorama (Art. 5(3)(h) InfoSoc), on illustration for teaching or research (Art. 5(3)(a) InfoSoc),Footnote 41 on uses of public speeches and lectures (Art. 5(3)(f) InfoSoc), on other uses by public authorities (Arts. 5(3)(g) InfoSoc, 6(2)(c) and 9(c) Database),Footnote 42 on socially oriented uses (Art. 5(2)(e) InfoSoc),Footnote 43 on orphan and out-of-commerce works,Footnote 44 and on uses by persons with disabilities.Footnote 45 Only a handful of cases refer to other flexibilities, though with landmark decisions (see below, point ii).

  2. (ii)

    The CJEU has clarified and harmonised the conditions of the applicability of key flexibilities, such as parody,Footnote 46 quotationFootnote 47 and exhaustion,Footnote 48 and of clauses such as the three-step test,Footnote 49 using a contextual, teleological and fundamental rights-based interpretation. Along the same lines, some optional exceptions have been indirectly declared mandatory in light of their key role in ensuring a fair balance between copyright and conflicting fundamental rights. An obvious example is the parody exception (Art. 5(2)(k)) in Deckmyn.

  3. (iii)

    The horizontal application of fundamental rights has also led to the broadening of the scope of some provisions with the aim of safeguarding their effectiveness and purpose. This was the case, for instance, for the public lending exception (Art. 6(2) Rental), which was stretched to include e-books to ensure that the provision continues to perform its role of granting access to culture to all also vis-à-vis new digital lending opportunities.Footnote 50 Similar considerations led the CJEU to expand the scope of the exception allowing libraires to make available digitised collections to their patrons by means of dedicated terminals (Art. 5(3)(n) InfoSoc), arguing that its goal of cultural promotion would be frustrated if libraries were not also allowed to digitise (thus to reproduce) their printed collections to such end.Footnote 51

  4. (iv)

    The CJEU has tried to indirectly draw the boundaries of public domain by defining the notion of protected works in a line of cases that identified two requirements (originality and expression) and later specified their content.Footnote 52 Interestingly, however, there was no attempt to implement a court-based harmonisation of categories of works excluded from protection – a matter that is still left to non-harmonised national rules.

  5. (v)

    The Court has also provided game-changing interpretations of fundamental provisions. The main example is Art. 5(5) InfoSoc and its three-step test, which was transformed into a rule of thumb for the (non-)application of E&Ls by national courts.Footnote 53 In some instances this attitude has triggered a negative reaction by the EU legislator, which has explicitly overruled the CJEU reading in subsequent interventions, as was the case for Reprobel in Recital 60 CDSMD.Footnote 54

  6. (vi)

    Finally, two decades of case law have also allowed the Court to reshape the operation of copyright flexibilities with the introduction of judge-made doctrines such as fair balance. With subsequent iterations,Footnote 55 the CJEU has first opened to the use of fundamental rights in the interpretation of E&Ls,Footnote 56 abandoned the principle of the strict reading of exceptions in their favour,Footnote 57 used them to indirectly declare mandatory an optional provisionFootnote 58 and, lastly, intervened to draw the boundaries of the doctrine in order to bring clarity in a hazy field. With a historical triad of decisions in 2019,Footnote 59 the Court ruled that the validity of E&Ls vis-à-vis fundamental rights should be presumed, and that a departure from statutory sources is justified only against gross violations of the essence of a fundamental right, that is when there is no other way to protect their exercise. This implies that fundamental rights cannot justify the introduction of new exceptions beyond those provided by law.Footnote 60 However, they should inspire the interpretation of E&Ls, which may also lead to their extensive readings or application by analogy when necessary to protect the former.Footnote 61 To guide the balancing exercise, after long years of silence on the matter, the CJEU made explicit reference to Art. 52(2) Charter of Fundamental Rights of the European Union (CFREU) and its proportionality test, looking at the functions of copyright as a benchmark to define the core content of each exclusive right involved in the balance.Footnote 62

3.3 Comparative Reports on Member States’ Statutes and Judicial Decisions

The most ground-breaking part of the research concerned the mapping of Member States’ legal sources of copyright flexibilities, articulated in 27 national reports that illustrate and analyse the main features of national provisions and related case law, assessing convergences, divergences and relative flexibility vis-à-vis the EU model, when such existed.

This static mapping revealed five key trends.

Member States operate a full reception of EU Directives and Regulations, and their copyright acts now tend to align around the flexibility categories provided by the InfoSoc Directive, with only a few countries presenting more original provisions compared to the EU benchmark. The remarkable impact of the InfoSoc Directive also emerges from the wave of amendments of national copyright flexibilities after 2001, albeit only in certain sectors (e.g. temporary reproductions, private copy, ephemeral recordings, disabilities, cultural uses) and not in others (e.g. quotation and parody). Interestingly, Member States show some differences in the conceptualisation of specific permitted uses, either in terms of divergences in the label used or in terms of their theoretical qualification as acts outside the scope of copyright instead of as exceptions.Footnote 63 The most interesting finding, however, comes from the judiciary. In several instances, in fact, it was possible to observe a non-homogeneous reception of CJEU doctrines and principles by national courts, which go so far as to blatantly ignore the EU highest court’s decisions and to continue to follow local precedents.Footnote 64

This static analysis was coupled with a comparative assessment of the state of 12  categories of copyright flexibilities, with the exclusion of sectors for which the quality and amount of data gathered could not allow the performance of a reliable and sound evaluation.Footnote 65 Comparative reports assessed the degree of harmonisation of national solutions as to beneficiaries, rights, uses and works covered, conditions and requirements of applicability, remuneration, purpose limitations and any other aspect relevant for the balancing exercise. It also evaluated the compliance of national sources with the CJEU case law and assessed the degree of flexibility of national solutions vis-à-vis the EU model.

The findings and conclusions of each comparative report confirmed the general patchwork picture that has been highlighted by previous studies, albeit with new positive convergence trends and thus greater legal certainty. This change has mostly been due to the EU introduction of mandatory exceptions, from the Orphan Works Directive onwards. In contrast, areas not touched by EU harmonisation, or harmonised only to a lesser extent, remain tainted by a high degree of fragmentation, posing issues that the EU legislator will be forced to face in the coming years. Giving a full account of the results of the research for each category of flexibility would go beyond the scope and length of this contribution, which will offer, instead, a concise overview of the most relevant findings of the 12  comparative reports, referring back to reCreating Europe’s datasets and publicly available studies for additional details.

Temporary reproduction, lawful uses, de minimis uses. This category includes flexibilities that showcase the greatest level of harmonisation across the Union, mostly due to the mandatory nature of most of its provisions (see, e.g., temporary reproduction under Art. 5(1) InfoSoc, backup, interoperability and testing exceptions under Arts. 5(2)–(3) and 6(1) of the Software Directive), and lawful uses of databases (Arts. 6(1), 7(5), 8(1)–(2) of the Database Directive). Limited divergences here pertain to the qualification of the flexibilities,Footnote 66 which in some countries are defined as acts outside the scope of protection, while in others are framed as E&Ls,Footnote 67 to the definition of the benchmark of the necessity of the lawful use and to the introduction of small quantitative limitations.Footnote 68 Areas that are not subject to mandatory harmonisation present, on the other hand, some divergences. This is the case for ephemeral recording (Art. 5(2)(d) InfoSoc) and freedom of panorama (Art. 5(3)(h) InfoSoc), where Member States either failed to implement the EU provision or added varying conditions of applicability on top of the EU model.Footnote 69

Private copy and reprography. Although the private copy and reprography exceptions, introduced as optional provisions by Arts. 5(2)(a) and (b) InfoSoc, are present in most of the Member States, their degree of harmonisation is relatively low. As to beneficiaries, national laws show a general convergence, with the exception of some countries that stretch the EU model to also cover copies made by third parties on behalf of the userFootnote 70 or, more rarely, by legal persons.Footnote 71 More fragmentation affects the objective scope of the provision, with a number of restrictions on the number of works that can be copied and on the categories of works covered.Footnote 72 Remuneration schemes converge around the private levy model, now sharing common features thanks to the numerous interventions by the CJEU. Nevertheless, distinctions remain.Footnote 73 It is also worth noticing that national courts have contributed to the patchwork implementation of the exception, particularly through the introduction of additional criteria and conditions of applicability, ranging from the impact of TPMs on the remuneration due to the three-step test and the interpretation of the notion of non-commercial use.Footnote 74

Parody. Similar fragmentation characterises the important area of parody-related flexibilities. Art. 5(3)(k) InfoSoc has not been implemented in several Member States,Footnote 75 which continue to cover parodic uses under the quotation or free-use exceptions.Footnote 76 Even when transposed, only some national statutes offer a verbatim version of the EU provision,Footnote 77 while others add at least one – and usually different – additional requirement, scope limitation, subjective or objective condition of applicability.Footnote 78 In addition, the concept of parody itself has been subject to various interpretations by national courts, often changing in time and going beyond the criteria harmonised by the CJEU in Deckmyn. Back in 2014, the Court ruled that a parody should be different from the original work (structural parameter), and contain humour or mockery (functional parameter). National decisions, however, often refer to other requirements, such as the fact that: (i) the parody explicitly targets an earlier work;Footnote 79 (ii) there is no doubt as to the fact that the authors of the parody and the targeted work are different;Footnote 80 (iii) the parody indicates the paternity of the earlier work;Footnote 81 (iv) there is no intention to compete with the original work or profit from its reputation;Footnote 82 (v) the parody does not borrow from the original work more than necessary for its purpose;Footnote 83 and (vi) the moral rights of the original author are respected.Footnote 84 This has been the case even after the issue of the Deckmyn decision, which explicitly prohibits the introduction of additional conditions for the parodic use to benefit from the exception. The entry into force of Art. 17(7) CDSMD, which makes mandatory the introduction of an exception for quotation, parody, caricature and pastiche for the benefit of users of OCSSPs, could have constituted an opportunity for Member States to achieve a greater convergence also with regard to the general parody exception. However, most Member States have opted for a verbatim implementation, limited to online uses,Footnote 85 thus increasing the complexity of the system.

Quotation. Thanks to its mandatory nature under the Berne Convention, the quotation exception is featured in all Member States’ laws. National provisions converge on basic matters such as the undefined nature of beneficiaries, the obligation to mention the author’s name and source quoted and, in limited instances, the purpose of the quotation. Divergences, however, emerge with regard to the type of work and the amount that can be quoted,Footnote 86 and some countries include additional conditions such as compliance with fair practice and the non-commercial use of the quotation.Footnote 87 Despite the CJEU’s attempt to reach some harmonisation on basic requirements, national decisions are still not fully aligned with its precedents.

Informational purposes. While the EU model is characterised by great simplicity, national flexibilities for informational purposes are the most varied. The public interest in receiving information on current events is protected in all Member States, but balancing tools are largely different. Not all the informational purpose E&Ls introduced by the InfoSoc Directive have been implemented by all countries.Footnote 88 Beneficiaries are also differently identified by national laws – from general users to mass media only, sometimes specifically defined by law.Footnote 89 In addition, the overlap between these provisions and exceptions protecting freedom of expression (quotation et al.) often leads to confusing outputs in judicial decisions.Footnote 90 This fragmentation is likely to have a negative impact on the operation of news outlets in the digital cross-border environment. The situation is also made worse by the fact that most of the national E&Ls in the field use traditional definitions based on “analogue” media publishers – a circumstance that renders such provisions useless in online contexts.Footnote 91

Teaching and research uses. Flexibilities in this area are by far the least harmonised in the EU. This is due not only to the optional nature of a large part of the EU provisions in the field, but also to the fact that all EU acts except for the CDSMD regulate teaching and research under the same vague E&Ls.Footnote 92 Such an approach left Member States free to decide how to frame their exceptions, with the result that some countries cover both uses or only one (mostly teaching), and the same diversity features the identification of beneficiaries and permitted uses. As to beneficiaries, they are either not defined or listed in open or closed lists of educational entities, with research organisations rarely mentioned.Footnote 93 Member States often provide limitations as to the categories and extent of works that can be used,Footnote 94 or to the types of uses admitted,Footnote 95 sometimes introducing additional conditions of applicability,Footnote 96 with too many differences to identify common paths. The introduction of a mandatory exception for digital teaching (Art. 5 CDSMD) has led to a greater convergence of national solutions, but also here variations appear on aspects left to Member States’ discretion,Footnote 97 the negative effects of which are tackled by the country-of-origin principle dictated by the EU provision, which requires the application of the law of the country of establishment of the educational establishment. The sole research-only purpose exception introduced by the CDSMD on text and data mining (Art. 3) has been transposed almost verbatim by Member States, with a few differences as to the list of beneficiaries – usually in favour of a broader approach compared to the EU model.Footnote 98

Cultural uses. Before the entry into force of the CDSMD, flexibilities for the preservation of cultural heritage (Art. 5(2)(c) InfoSoc) and public lending (Art. 6(1) Rental) were largely fragmented. As to beneficiaries, national provisions feature a variety of solutions, being either silent on the matterFootnote 99 or identifying them in closed or open lists, with different combinations of entities.Footnote 100 Some Member States allow the lending of a broad list of works, while others exclude specific categories,Footnote 101 or provide additional conditions of applicability and/or require remuneration in the case of the lending of specific materials.Footnote 102 Additional complexity derives from the non-homogeneous introduction of remuneration schemesFootnote 103 or purpose-oriented limitations.Footnote 104 With regard to the preservation exception, beneficiaries are generally identified as museums, archives and libraries,Footnote 105 while some countries also include educational establishments,Footnote 106 or broaden the scope of the provision by adding a plethora of specific institutions.Footnote 107 Many national legislations do not specify the types of works covered,Footnote 108 or exclude a few types. However, Member States often feature additional provisions on top of the general exceptions which relate to specific categories of works and introduce additional conditions of applicability.Footnote 109 As to permitted uses, many countries go beyond mere reproduction, as set out in the InfoSoc provisions, and stretch the exception to cover other exclusive rights, and/or also digital formats.Footnote 110 Limitations appear in some national acts with regard to the maximum number of copies allowed,Footnote 111 or to the needs and purposes that may justify the reproduction.Footnote 112 The enjoyment of the exception may also be subordinated to the impossibility of purchasing the work on the market.Footnote 113 The entry into force of Art. 6 CDSMD, a mandatory provision that allows cultural heritage institutions (CHIs) to make copies of any works in their collections, in any format or medium, for purposes of preservation, has recently led to a strong push towards the standardisation of national solutions, which appear to depart only rarely and minimally from the EU model.Footnote 114 The same can be said for Art. 8 CDSMD, which introduced a mandatory extended collective licensing scheme (or exception, should the country lack a CMO that can adequately represent rightholders) for out-of-commerce works.Footnote 115 Convergence can also be found in the field of orphan works, where the mandatory exception introduced in 2012 encouraged a high degree of harmonisation across the Union.Footnote 116 However, some Member States still feature residual exceptions concerning lawful uses by CHIs and educational establishments, variously framed in terms of beneficiaries, purposes and limitations, with no convergence in focus.Footnote 117 This increases the density and complexity of the net of national solutions in the field, to the detriment of legal certainty and cross-border cooperation among CHIs, and ultimately hindering the implementation of consistent EU cultural policies when protected works are involved.

Socially oriented uses. Very few countries have transposed Art. 5(2)(e) InfoSoc, allowing the reproductions of broadcasts made by social institutions pursuing non-commercial purposes (e.g. hospitals or prisons), subject to the payment of fair compensation,Footnote 118 and also a limited number of national laws include provisions allowing the reproduction, performance and/or the communication to the public of protected works in specific non-profit events.Footnote 119

Copyright and disability. Thanks to the Marrakesh Directive, which introduced a mandatory E&L for the reproduction and making available of protected works in accessible format for visually impaired individuals and authorised entities, Member States present a high degree of convergence in the field, with limited distinctions. Beneficiaries are sometimes identified very strictly by requiring a special appointment of authorised entities,Footnote 120 other times broadly with the inclusion of a wide range of disabilities and institutions.Footnote 121 A number of countries exclude specific works from the scope of the exception,Footnote 122 or provide specific rules for certain categories of works.Footnote 123 Additional limitations are very rare. The majority of Member States do not require remuneration, with others providing for it only in specific circumstances, and just two countries impose it in all cases.Footnote 124 More fragmentation characterises the implementation of the general disability exception (Art. 5(3)(b) InfoSoc). National laws offer a panoply of different solutions as to the types of disability considered.Footnote 125 Rights covered range from reproduction onlyFootnote 126 to also distributionFootnote 127 and various combinations of communication to the public, lending and public performance.Footnote 128 Most countries do not comply with the InfoSoc Directive’s request to implement measures that ensure that TPMs do not hinder the exercise of the exception,Footnote 129 or do so only partially.Footnote 130 There is no convergence either on the side of remuneration obligations, with some states providing for instruments similar to compulsory licenses.Footnote 131 The patchwork of national solutions worsens the complexity of the system, already tainted by the fact that other Directives do not include any disability exception, thus often excluding some works – such as computer programs and databases – from the scope of national provisions.

Uses by public authorities. Flexibilities in this area are very country-specific. Not all the Member States have implemented Art. 5(3)(e) and (g) InfoSoc, which allow the reproduction and communication to the public of protected works for public security, for performing and reporting on administrative, parliamentary and judicial proceedings, or for uses in religious or other public ceremonies. When they have, they have mostly followed the EU model, sometimes omitting one or more of its purposes,Footnote 132 excluding specific categories of works from the scope of the provision, introducing subject-specific restrictions,Footnote 133 or expanding/restricting the range of permitted uses for specific beneficiaries.Footnote 134 The most frequent condit ions of applicability imposed at national level are the limitation as to the purpose of permitted uses, often read strictly by national courts,Footnote 135 the limitation of events where the public performance of protected works is allowed, and the types of works that can be performed.Footnote 136

Public domain. Several Member States feature one or more provisions that exclude specific subject matters from copyright protection. However, public domain and paying public domain regimes remain highly fragmented, uncovered and not harmonised in the EU. Some convergence can be traced in the common exclusion of two groups of materials – official documentsFootnote 137 and facts, including daily news and press information,Footnote 138 and, in some instances, abstract concepts and ideas.Footnote 139 Also in these cases, however, national distinctions remain, with different degrees of specification.Footnote 140 Member States are not aligned vis-à-vis the treatment of folklore,Footnote 141 and only a few provide for paying public domain schemes.Footnote 142 The harmonisation attempt made by Art. 14 CDSMD, which denies protection to reproductions of any work of visual art if the term of protection of the original work has expired, unless the reproduction constitutes an original work, represents a welcome first step towards an EU-wide definition of the boundaries of the public domain. However, the provision is optional and has not been transposed by all Member States. CJEU case law on the notion of protected work has also contributed, albeit in very vague terms, to the process of harmonisation of the subject matter of copyright, including via the consolidation of the idea-expression dichotomy.Footnote 143 Still, the uniformity needed to ensure legal certainty and the correct functioning of the EU copyright law architecture is still far from being reached.

4 Back to the Future: An Agenda for Future EU Copyright Reforms

The results of the mapping of EU and national sources highlight a number of flaws that will require future policy interventions to ensure that EU copyright law achieves an effective balance between conflicting private and public interests without hindering the correct functioning of the internal market. Reforms are needed at different levels, both with regard to the general system of copyright flexibilities and with regard to specific provisions.

As to general matters, the persisting fragmentation of national solutions, coupled with the territoriality of copyright, suggests (G1) the need to reconsider the approach to harmonisation for all copyright flexibilities. The most recent EU acts, from the Orphan Works Directive to the CDSMD, opted for mandatory and very detailed provisions and for the introduction of the country-of-origin principle to overcome the problems created by copyright territoriality, with very positive effects. However, this paradigm shift has been only forward-looking, with the majority of E&Ls and other balancing tools still remaining regulated by optional provisions or uncovered, in stark contrast with the maximum harmonisation of exclusive rights. In the short term, this scenario highlights the need to conduct an assessment of the effects of the optional nature of the existing provisions on the functioning of the internal market and on the copyright balance.Footnote 144 In the medium term, a possible solution would be to extend the country of origin principle used for Art. 5 CDSMD to all existing flexibilities. In the long term, it would be advisable to make mandatory those flexibilities the fragmentation of which is proven to have a negative effect on cross-border uses and, more generally, to provide for mandatory and detailed balancing tools every time a greater harmonisation does not harm national cultural diversities.

Due to the shift in the approach to the harmonisation of copyright flexibilities, the current system features simultaneously mandatory provisions, optional provisions, and provisions that are generally optional but mandatory only with respect to certain uses. Apart from side references, such as Recital 70 CDSMD, there is no common rationale that could justify the attribution of a given regime to a specific flexibility, to the detriment of legal certainty and predictability. This suggests the need to (G2) simplify the flexibilities regimes, and ensure consistency in the rationales underlying their adoption.

To overcome the traditional rigidity of the E&Ls system, which straightjackets the adaptability of the copyright balance to new technological and market developments, a possible way out is to (G3) adopt a purpose-oriented language in future flexibility provisions.Footnote 145 EU and national case law demonstrate how rules of this kind are more adaptive to changes, and constitute a valid alternative to the general doctrine of the fair-use clause, which is alien to the continental droit d’auteur tradition and has also been rejected by the CJEU. To the same end, the EU legislator may want to consider (G4) operating a horizontal joint update of “traditional” flexibilities, which use a language that is not fully technology-neutral and rigid definitions, to adapt them to new technological, market and socio-cultural developments. This could take the form of provisions updating the definition of key copyright terms and concepts (e.g. copy, original, good/product), which would allow the preservation of the effectiveness of existing provisions in achieving their goals.

The findings of the EU and comparative mapping have also revealed a weak reception by national courts of landmark CJEU doctrines that are consolidated and strongly contribute to the development of the EU copyright system. To tackle this problem and ensure the uniform implementation of CJEU precedents at national level, the EU legislator should evaluate the possibility (G5) to channel key CJEU principles in future acts via specific provisions or recitals. Training opportunities for national judges on copyright and related matters may constitute a valid short-term solution as well.

A sector where harmonisation is fully lacking, but the need for convergence has become pressing in recent years – particularly vis-à-vis the advent of AI and the surge of the data economy – is the definition of the boundaries of the public domain. Despite the intervention of the CJEU, the lack of uniformity among Member States’ laws poses serious challenges to the push for protection coming from sectors that are alien to copyright principles but still raise doubts as to their potential to be considered eligible subject-matters. This suggests that the time has come for (G6) a harmonisation of copyright subject-matter and of clear-cut exclusionary rules for data and information, starting from the EU Data Package and the regulation of AI.Footnote 146

Substantial divergences also affect the treatment of uses that, although falling under exclusive rights and outside the scope of E&Ls, do not conflict or compete with the normal exploitation of a protected work, with some national courts shielding them from protection and others protecting, instead, the author of the original work. To complicate the framework, national provisions on free uses have also been censured by the CJEU in recent decisions.Footnote 147 Transformative uses may have a positive impact on the economy of creativity without hampering existing creators. In this sense, it would be advisable to (G7) conduct an impact assessment of the divergences in national practices in the field, evaluating on this basis the opportunity to introduce an EU-wide E&L for transformative uses, with related limitations to ensure a proper balance between conflicting interests.

Additional attention should also be paid to specific flexibilities.

The high degree of fragmentation of national private copy and reprography exceptions persists despite the massive number of CJEU decisions in the field, which only had the result of standardising the main features of local remuneration schemes. The lack of convergences among Member States’ solutions challenges the equal treatment of rightholders in the EU and the development of a competitive cross-border market for CMOs. After a short appearance in the Public Consultation on the modernisation of EU copyright, the EU Commission’s plan to intervene on the matter disappeared from the agenda. In light of the Digital Single Market goals, it is advisable to (S1) conduct an impact assessment and consultations with stakeholders to evaluate the effect of the lack of harmonisation in the field of private copy and levy schemes, evaluating the possibility to adopt bottom-up solutions and, if not effective, to increase the harmonisation of related E&Ls to improve legal certainty and the fairness of the market in the case of cross-border uses.

One of the most problematic areas requiring intervention is that of parody and quotation. Such provisions, which are fundamental for the balance between copyright and freedom of expression, are far from being harmonised across the Union. The patchwork of national solutions inevitably has negative effects in cross-border online settings, and the limited scope of Art. 17(7) CDSMD does not seem enough to tackle the problem. In this sense, the EU legislator should consider (S2) intervening on the parody and quotation InfoSoc exceptions, making them mandatory and amending their content by introducing specific and clearer requirements, also on the basis of the clarifications offered by the CJEU. For similar needs, the lack of harmonisation in the field of (S3) flexibilities for informational purposes and their outdated nature compared to the needs of the new online information industries also require new interventions, with new technology-neutral provisions and the adoption of solutions (e.g. country-of-origin principle) that may allow seamless cross-border uses.

The recent boost in the EU commitment to Open Science (OS) policies and the problematic situation of research-related flexibilities across the EU, which has only been limitedly repaired by the introduction of the TDM exception by the CDSMD, also call for (S4) the alignment of EU copyright law with OS goals, chiefly with the introduction of a mandatory secondary publication right limited to self-archiving for authors and/or their employers that cannot be overridden by contract, and harmonising the largely different approaches of Member States that have already intervened on the matter;Footnote 148 and (S5) the introduction of a general, purpose-oriented mandatory research exception, modelled on the basis of the TDM and digital education exceptions (Art. 3 and 5 CDSMD), or, as an ultimate instance, the amendment of Art. 5(3)(a) InfoSoc to split the teaching and research exceptions and increase the level of detail of the provision, in order to ensure coordination with EU OS policies.Footnote 149

Finally, the advent of the Marrakesh Directive and its positive effects on the harmonisation of the E&Ls for people with visual impairments has help shed light on the work that still has to be done to ensure that EU copyright and accessibility laws act in synergy to enhance access to culture for differently able individuals.Footnote 150 In light of the extreme fragmentation in the national transpositions of the disability exception under Art. 5(3)(b) InfoSoc, (S6) its extension, clarification and transformation into a mandatory provision represents a pressing priority for the EU legislator to be taken into account for future policy actions.

5 Conclusions

Three years of research and assessment of EU and Member States copyright flexibilities, mapping both legislative acts and case law, allowed an almost all-comprehensive picture to be drawn of the degree of harmonisation in the field and on the state of the copyright balance vis-à-vis specific beneficiaries, works and uses in the Union and at national level. Thanks to the new taxonomy adopted by the study, it was also possible to shed light on the treatment of various uses and interests in conflict with copyright enforcement. Thanks to the holistic and innovative methodological approach and encompassing coverage, the wealth of the data set and national and comparative reports produced by the H2020 project reCreating Europe offer a strong evidence base for the EU and national legislators to learn from the past and present about copyright flexibilities, and to inform future policy actions objectively and soundly, along the lines of the policy recommendations the project elaborated on the basis of its findings. With the new Commission term kicking off in the second half of 2024, the hope is that this EU-funded effort will also help highlight the importance of keeping the EU copyright agenda alive, and shaping part of its pillars in the coming years.