Are Copyright-Permitted Uses 'Exceptions', 'Limitations' or 'User Rights'? the Special Case of Article 17 CDSM Directive

Abstract

The article discusses the legal nature of permitted uses in copyright law – uses like private copying, quotation or parody, which may be lawfully performed without the rightholder’s authorisation, despite falling within the prima facie scope of an exclusive right.

It starts by examining the nature of the rules that lay down permitted uses, arguing that they should be considered “exceptions” rather than “limitations”. This qualification should not be taken as carrying a preference for their strict interpretation or as admitting their hierarchically inferior status in relation to exclusive rights. Although these rules are more appropriately described as "exceptions", nothing prevents them from being construed in a broad manner.

The article then delves into the nature of the entitlements granted by copyright exceptions. It submits that, in general, we should not refer to such entitlements as “rights”, since they are not paired with a correlative duty, but as “privileges” or “freedoms”.

In some cases, however, the prerogatives enjoyed by users may be regarded as rights. One such case is created by the most controversial provision in the CDSM Directive - Article 17. Whereas Article 17(7) puts online content-sharing service providers under a duty not to prevent uses that are covered by exceptions, Article 17(9) gives the beneficiaries of those exceptions access to truly offensive means of reaction, instead of mere means of defense. Read together, these safeguards confer actual rights upon users.

Keywords: copyright, exceptions, limitations, user rights, CDSM Directive, Article 17