Copyright Flexibilities: Mapping and Comparative Assessment of Eu and National Sources

Abstract

This report illustrates and analyses the results of the research activities conducted in the framework of reCreating Europe’s Task 2.1. From January 2020 to June 2022, the task performed an unprecedented, two-layer, comparative, EU and cross-national mapping and assessment of sources impacting on copyright flexibilities and access to culture, focusing on (a) statutes, court decisions, governmental policies, practices and schemes in the field of copyright law, DSM, and broader cultural policies, and (b) private ordering sources, such as standardized license agreements (EULAs) and terms of use from online platforms, selected to represent a wide array of cultural and creative goods and services. The study built on a rich state of the art, and particularly on previous partial attempts to systematize the matter. The research relied both on in-house desk mapping of available sources, and on a wide network of national experts from academia and private practice, who contributed to the study by answering to two rounds of questionnaires and participating at a mid-term workshop which discussed interim results.

The mapping produced a wealth of data and findings, which have been systematized and structured in an internal dataset and will be made available to the public on the user-friendly website www.copyrightflexibilities.eu by the end of the project. This report provides an overview and commentary on the datasets, drawing descriptive conclusions that constitutes the backbone of the policy recommendations issued in September 2022.

The report is structured in 6 parts. The introductory sections (1 and 2) sketch the state of the art underlying this study, summarize its research questions, objectives and expected outcomes, and outline the general structure and workflow of the research, illustrating its general and sector-specific methodology and selection of sources. Section 3 offers a detailed overview of the mapping of public regulatory sources, focusing first on the EU and then on each of the 27 Member States. Section 4 provides a comparative analysis and assessment of the results, articulated around twelve categories of uses/flexibilities. Section 5 reports on the study of the state of copyright flexibilities in online platforms’ EULAs, assessing their compliance with the CDSM Directive. Section 6 concludes, commenting on the descriptive findings of the research and sketching the road ahead.

Keywords: End-users; exceptions and limitations; EU copyright law; CDSM Directive; Marrakesh Directive; disability; three-step-test; public domain; CJEU; end-user license agreements; legal mapping; harmonization; intermediaries; online content-sharing service providers; fundamental rights

JEL Classification: K11, O34