A New Era for EU Copyright Exceptions and Limitations? Judicial Flexibility and Legislative Discretion in the Aftermath of the CDSM Directive and the Trio of the Grand Chamber of the CJEU

Abstract

For long neglected, copyright exceptions and limitations have recently been the subject of multiple interventions by the EU legislator and the European Court of Justice, some of these bringing about landmark changes to the approach, nature and interpretation of such provisions. Taking stock of the long road travelled in recent decades, this article systematises the results which have been achieved in the field and highlights the outstanding flaws and inconsistencies which mark the route forward in EU copyright harmonisation. To this end, it offers an overview of the evolution of exceptions and limitations in EU copyright law prior to the entry into force of the Directive on Copyright in the Digital Single Market (§2), analyses the interpretative problems solved, created and left behind by the European Court of Justice (§3), and looks at the policy debates and preparatory works that led to the Directive, highlighting which reform proposals were successfully adopted and which ones were abandoned over the years (§4). It then provides a brief analysis of the innovations introduced by the Directive and their impact on the state of the art of EU copyright exceptions and limitations (§5), linking it to the recent decisions of the Grand Chamber (§6.1) which draw new boundaries in the discretion and flexibility left to national legislators and courts in balancing conflicting rights and interests in copyright law (§6.2), and commenting on the strengths and weaknesses of the new framework.

Keywords: EU copyright, exceptions, limitations, fundamental rights, Copyright in the Digital Single Market Directive,CDSMD, CJEU, harmonisation, Funke Medien, Pelham, Spiegel Online, Text and data mining, digital preservation, cross-border teaching, Digital preservation, Cross-border teaching

JEL Classification: K11, O34