A New Era For EU Copyright Exceptions and Limitations?

A new era for EU copyright exceptions and limitations?
Judicial flexibility and legislative discretion in the aftermath of the

Directive on Copyright in the Digital Single Market and the trio of the
Grand Chamber of the European Court of Justice
Caterina Sganga
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

Associate Professor of Comparative Private Law, Scuola Superiore Sant’Anna, Pisa, Italy. Email:
c.sganga@santannapisa.it
Electronic copy available at: https://ssrn.com/abstract=3809214

1 Introduction
For long, the flaws and shortcomings in the balance between exclusivity, access,
users’ rights and the public interest in EU copyright law have prominently featured
doctrinal and policy studies. Scholars have devoted much attention to the frictions
caused by the limited adaptability of the closed and exhaustive list of exceptions as
regards fast technological developments. They have repeatedly emphasised how
the current system is unable to guarantee an adequate balance between copyright,
conflicting fundamental rights and the public interest, due to its rigidity and the
overridability of exceptions by contract.1 Not less importantly, they have
highlighted the negative impact of the optional nature and territoriality of
exceptions and limitations on legal certainty, and the chilling effects of the internal
market fragmentation that has ensued on cross-border uses and activities.2 A related
critique has focused on the confusion triggered by the vague definitions offered by
the EU legislator, and by the unclear relationships between the definitions and
qualifications offered by leges generales such as the InfoSoc Directive,3 and those
offered by leges speciales that have introduced new general exceptions, or
exceptions limited to specific subject matters.4
Nothwistanding the profilic scholarly responses, the EU legislator has not given
immediate priority to the matter. However, after years of focus on exclusive rights
and their management and enforcement, copyright exceptions and limitations have
slowly reached the centre stage. From 2008, a number of landmark cases of the
Court of Justice of the European Union (CJEU) have focused on provisions
concerning such issues. Travaux préparatoires testify to the important place they
have attained in the public policy debate.5 Most recently, several directives and
1
The literature on the topic is extremely broad. Ex multis, see Geiger [9] p. 178; Guibault [14] p.
53; Hugenholtz-Senftleben [16] p. 9 et seq.; van Eechoud [32] pp. 298 et seq.
2
See Guibault [14] 55-56.
3
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the
harmon-isation of certain aspects of copyright and related rights in the information society [2001]
OJ L 167/10 [InfoSoc].
4
M.van Eechoud [32] pp. 94 et seq.; Janssen, [19] pp. 331 et seq.
5
For or a broader and contextual analysis, see Matthias Leistner [22] pp. 584 et seq.; Sganga [31]
pp. 137 et seq.

regulations have been enacted with the sole aim of harmonising specific exceptions
and making their adoption mandatory across the EU. Then, in 2019 two major steps
were made in the span of four months. First, the Directive on Copyright in the
Digital Single Market (CDSM Directive)6 introduced three new horizontal
limitations, declaring them mandatory and not overridable by contract. Along the
same lines, the Directive has transformed optional exceptions introduced by the
InfoSoc Directive into mandatory provisions, albeit limiting them to the narrow
field of automated content-filtering applied on user-generated content by online
content-sharing platforms. The Grand Chamber of the European Court of Justice
has also issued three milestone rulings (Funke Medien, Pelham and Spiegel Online)
on the interplay between copyright and fundamental rights and the flexibility which
fundamental rights allow national legislators and courts in the field of exceptions
and limitations.7 In light of these landmark changes, it may be useful to take stock
of the long road travelled in recent decades, systematise the results achieved, and
highlight outstanding flaws and inconsistencies that will characterise the way
forward in EU copyright harmonisation. With this goal in mind, this article offers
an overview of the evolution of exceptions and limitations in EU copyright law
before the CDSM Directive (§2), analyses the interpretative problems solved,
created and left behind by the Court of Justice (§3), and looks at the policy debates
and preparatory works that led to the CDSM Directive, highlighting which reform
proposals were successfully concluded and which ones were abandoned through
the years (§4). Then, the paper 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), links this analysis to the recent Grand Chamber
decisions (§6.1) to draw new boundaries in the discretion and flexibility left to
national legislators and courts in setting the copyright balance (§6.2), and
comments on the strengths and weaknesses of the new framework.
6
Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on
copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and
2001/29/EC [2019] OJ L 130/125 [CDSMD].
7
Case C-469/17 Funke Medien NRW GmbH v Bundesrepublik Deutschland [2019] EU:C:2019:623;
case C-476/17 Pelham GmbH and Others v Ralf Hütter and Florian Schneider-Esleben [2019]
EU:C:2019:624; case C-516/17 Spiegel Online GmbH v Volker Beck [2019] EU:C:2019:625.

2 The art of quilting: exceptions and limitations in EU copyright law before
the CDSM Directive
The story of exceptions in EU copyright law has long been that of a patchwork of
ad hoc responses to contingent policy needs, and optional lists of limitations
remitted to the discretion of national legislators.
Early communications by the Commission focused on the opportunity to harmonise

exclusive rights and enforcement measures to fight piracy and ensure the correct
functioning of the internal market.8 Their texts offer little by way of evidence to
enable us to retrace the legislative intent and rationale inspiring the approach
adopted by the first two vertical Directives – the Software Directive (91/50/EEC)9
and the Database Directive (96/9/EEC)10 - which provided special harmonised
exceptions to the newly introduced rights. Except for one instance – uses necessary
for running the software by a lawful acquirer (Article 3.1) - the Software Directive
opted for mandatory limitations, not overridable by contracts, authorising
decompilation for interoperability purposes (Article 6), study and testing to
determine ideas and principles underlying elements of the programme (Article 5.3)
and the making of a backup copy (Article 5.2). With a quite different approach, the
Database Directive introduced only three optional exceptions to copyright, limited
by the three-step test - private copy; illustration for teaching and research; and use
for the purposes of public security, administrative or judicial procedure (Article 6)
- leaving national legislators free to expand the list with other limitations taken from
their general copyright laws. The new sui generis right, created by the Directive
and unprecedented in national laws, was also subject to three optional exceptions,
in favour of private extraction in the case of non-electronic databases; extraction
8
To mention but one example, the most prominent preparatory document in early EU copyright
law, the Commission Communication Green Paper on Copyright and the Challenges of New
Technologies (COM (1988) 172, 1.6.1988) devotes its almost 250 pages to piracy, audiovisual home
copying exhaustion and rental rights, software and databases.
9
E.g., Council Directive 91/250/EEC on the legal protection of computer programs [1991] OJ
L122/42 [Software I].
10
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal
protec-tion of databases [1996] OJ L 77/20 [Database].

for teaching and research; and extraction for the purposes of public securities,
administrative or judicial procedures (Article 9).
The Commission maintained the same approach with the InfoSoc Directive. Unable
to find any convergence between Member States, the EU legislator opted to adopt
a unified list of mandatory exceptions (temporary reproduction; transient or
incidental; internal and essential part of a technological process (Article 5.1)) – and
twenty optional exceptions, listed in Article 5.2 and divided between limitations to
the right of reproduction and limitations to the right of reproduction and the right
of communication to the public. The decision was justified by the willingness to
pre-serve national cultural diversities and legal traditions, leaving enough
discretion to Member States to introduce the derogatory provisions they deemed
the most fitting to their social, cultural and economic needs and features.11 Recital
32 of the InfoSoc Directive, however, made it explicit that the list of Article 5 of
the Directive had to be considered exhaustive, while Article 5(5) of the Directive
clarified that the national implementation of exceptions had to comply with the
three-step test. National legislators, in fact, had a much narrower margin of
appreciation to determine their copyright policies than the optional nature of Article
5 of the InfoSoc Directive suggested. At the same time, the optional nature of
exceptions was coupled with their free overridability by contract, and the
favourable approach towards private ordering emerged also in the delegation to
rightholders’ voluntary measures (or, in the absence of these, to Member States) of
the task to adopt measures to ensure that technological measures of protection do
not hinder the exercise of specific exceptions. While exclusive rights were subject
to maximum harmonisation, exceptions were harmonised only to the extent
necessary to the smooth functioning of the internal market (Recital 31 of the
InfoSoc Directive), with the result of a quilt of national solutions and definitions,
later restricted by recurrent limiting interventions by the European Court of
Justice.12
11
As indicated by Recital 32 InfoSoc (“the list takes due account of the different legal traditions in
Member States, while, at the same time, aiming to ensure a functioning internal market”).
12
The principle of strict reading of exceptions, drawn from general EU law, was first reinstated
explicitly by Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009]
EU:C:2009:465, para 59.

The Rental and Lending Directive did not depart from the optional-style approach
followed until this point by the Commission, either in its original version
(92/100/EEC) or in its recast version (2006/115/EC).13 The introduction of the pub-
lic lending exception was left to Member States’ discretion, as was the decision on
the exemption from remuneration for certain categories of works.14 Analogously,
national legislators could decide whether or not to introduce specific limitations to
related rights – private use, ephemeral fixation by broadcasting organisations, use
of short excerpts for news reporting, teaching and research - always subject to the
three-step test.15
More recent Directives show, instead, the signs of ongoing reflection on the part of
the EU legislator regarding the negative effects that are engendered by the
territoriality, fragmentation and rigidity of exceptions both on the market for
protected works, and on copyright balance. In the Orphan Works Directive
(2012/28/EU),16 the exception to the right of reproduction and the right of making
available to the public under Articles 2 and 3 of the InfoSoc Directive is
purposefully made mandatory in order to prevent obstacles to the functioning of the
internal market and the unrestricted use and cross-border access to orphan works
(Recital 8). In addition, a common approach to the determination of the orphan
work status and on permitted uses is deemed fundamental to ensure the legal
certainty needed by cultural heritage institutions in order to safely engage in the
digitisation and making available of such works, and thus perform their public
interest function (Recital 9). The same approach features in the Marrakesh
Directive (2017/1564/EU), in compliance with the interna-tional obligation
undertaken by the EU as a signatory of the Marrakesh Treaty, which requires
contracting parties to implement in their legal system an exception to permit
authorised entities to reproduce, distribute and make available protected works in
13
Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right [1992] OJ
L 346/61 [Rental I]; Directive 2006/115/EC of the European Parliament and of the Council of 12
December 2006 on rental right and lending right and on certain rights related to copyright in the
field of intellectual property [2006] OJ L376/28 [Rental II].
14
Rental II Directive, Article 6(1) and (2).
15
Rental II Directive, Article 10.
16
Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on
certain permitted uses of orphan works [2012], OJ L299/5 [OWD].

formats accessible for visually impaired individuals.17 Marking a step forward com-
pared to the Treaty, however, the Directive declares the overridability by contract
of the provision, reducing the risk of fragmentation and legal uncertainty which
would be entailed in leaving discretionary power to private arrangement.18
The result of this normative output is a quilt of provisions that are partly mandatory,
partly optional, partly “horizontal” and applicable to every protected work, partly
“vertical” and applicable only in specific fields, partly overridable by contract and
partly not. The consequences of such a fragmentation are manifold. First of all, the
territoriality of exceptions has created both a high degree of legal uncertainty and
a chilling effect on cross-border activities. Secondly, the degree of harmonisation
has long remained unclear, and so has the margin of discretion left to Member
States. Thirdly, the weak coordination of sources of law having a different scope
has resulted in a lack of general principles and, frequently, in the use of different
language, definitions and concepts. Lastly, the strict reading of exceptions, the
additional filter imposed by the three-step test and the exhaustive nature of the
general list in Article 5 of the InfoSoc Directive have straitjacketed the system into
rigidities that have resulted in it not being adaptive to the new challenges to
copyright balance triggered by the advent of new technologies.
Scholars have proposed different solutions to such shortcomings, ranging from the
enactment of a EU copyright code19 to the use of fundamental rights and other
flexibilities inherent to the EU copyright system20 to overcome its rigidities. Some
commentators have identified the three-step test as a gateway to introduce a fair use
clause that could increase the plasticity of the copyright balance.21 Others have
17
Directive (EU) 2017/1564 of the European Parliament and of the Council of 13 September 2017
on certain permitted uses of certain works and other subject matter protected by copyright and
related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled
[2017] OJ L 242/6 [Marrakesh Directive].
18
Marrakesh Directive, Article 3(5).
19
Wittem Group, European Copyright Code (2010), available at http://www.copyrightcode.eu
(accessed 13 May 2020). See Hugenholtz [17] pp. 339-354.
20
As in Griffiths [12] p. 65. See also Geiger [8] p. 371; Husovec [18] p. 262; Mylly [25] p. 119;
Hugenholtz-Senftleben [16] p. 13
21
See Hugenholtz-Senftleben [16] p. 18; Griffiths [11] p. 277; Geiger-Hilty-Griffiths-Suthersanen
[5] p. 119; Geiger-Gervais-Senfleben [4] p. 581; Lucas [23] p. 281.

argued that standardising exceptions across the EU by making them mandatory and
non-overridable by contract would help tackling the most pressing problems raised
by the InfoSoc Directive and its progeny.22 Despite the vivid debate, however, the
EU legislator has long remained silent on the issue, leaving ample room for the
European Court of Justice to intervene and fill the gaps.
3 Exceptions and the Court of Justice: problems solved, problems created,

problems left behind
As a consequence of the legislative quilt, the vague and broad definitions offered
by EU Directives, the lack of coordination among sources, and the uncertain degree
of harmonisation and flexibility left to Member States, since 2001 the number of
questions raised by national courts on the interpretation of exceptions have been
substantial. This has given ample room for the European Court of Justice to engage
in prolific activism and rampant judge-made harmonisation of the field.23
With its interventions, the Court have tackled and solved several problems triggered
by the flaws in the EU legislative harmonisation. Yet some of its decisions have
generated further inconsistencies and paved the way to additional questions, while
other problems have been left largely unsolved. Getting a glimpse of the state of
the art of the case law of the European Court of Justice may assist in understanding
the background on which the travaux préparatoires and consultations preceding
the reform of the CDSM Directive reform took place, in defining the boundaries
and degree of EU copyright harmonisation, and in highlighting the problematic
areas still requiring clarification.
In the period that ran from the InfoSoc Directive to the CDSM Directive, the
European Court of Justice mostly ruled on matters related to Article 5 of the
InfoSoc Directive, with few references to the exceptions provided for in other
Directives. The great majority of decisions can be grouped in five homogeneous
categories: interventions on (i) general interpretative principles; (ii) the notion of
22
As in Geiger-Schoherr [7] p. 136; Janssen [19] p. 327; Guibault [13] p. 115.
23
For a systematic analysis, see Leistner [22] pp. 584 et seq. The harmonisation goals of the
European Court of Justice are particularly emphasised by Griffiths [12] p. 65.

temporary reproduction under Article 5(1) of the InfoSoc Directive; (iii) the notion
of fair compensation for private copying under Article 5(2)(d) of the InfoSoc
Directive; (iv) the scope and implications of the three-step-test (under Article 5(5)
of the InfoSoc Directive); and the possibility of providing an extensive reading of
exceptions when necessary to ensure a fair balance between copyright and
conflicting fundamental rights.
3.1 Problems solved
The European Court of Justice has undoubtedly contributed to an increase in the

level of legal certainty and systematic consistency of EU copyright law on several
fronts.
A first group of cases concerns instances where the Court has engaged in
clarification of the scope and borders of specific exceptions. In the context of the
exception for temporary reproductions (under Article 5(1) of the InfoSoc
Directive), for example, the European Court of Justice has specified that the storage
and deletion of the copy should be automated and not dependent on discretionary
human intervention.24 Then, in order to avoid distortive side-effects, it has excluded
the relevance of the latter in the activation or termination of an automated process,
thus also covering, under Article 5(1) of the InfoSoc Directive, on-screen and
cached copies, particularly in the light of the key importance of caches for the
correct functioning of the architecture of the internet.25
Along the same lines, the Court has intervened to provide guidelines for the
interpretation of the notion of “fair” compensation in case of private copy
exception, qualified as an autonomous concept of EU law26 that needs a consistent
and harmonised determination in order to comply with the InfoSoc Directive’s
objective of ensuring a functioning internal market.27 The Court of Justice used a
contextual and teleological interpretation of the InfoSoc preamble to define as fair
24
Infopaq, paras 55, 61.
25
Case C-360/13 Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd
and Others [2014] EU:C:2014:1195.
26
Case C-467/08 Padawan v SGAE [2010] ECR I-10055, para 33.
27
Id., paras 35-36.

compensation an amount that makes good the harm suffered by the author as a
consequence of the private copy.28 At the same time, the Court considered fair and
thus allowed under Article 5(2)(a) a private levy system that imposes on producers
of reproduction equipment the payment of fair compensation for private copies
potentially executable through their devices, in the light of the fact that the activity
of producers represents a factual precondition of the private copy, that they may
still pass the cost on to users by proportionally increasing the purchasing price, and
that a single harm may be minimal and the cost of enforcement too high to make
an individual collection effective.29 With several decisions in the following years,
the European Court of Justice highlighted that Member States have full discretion
on the definition of the features and mechanisms of their private levy systems,30 but
specified the notion of fairness by applying it to different national schemes,
formulating ad hoc principles characterised by a high degree of factual specificity
and no general applicability. In this context, the Court ruled out the admissibility
of a scheme that financed compensation from the general state budget, for it
indirectly imposed the levy on all taxpayers without guaranteeing that the costs of
fair compensation were borne only by natural persons who could potentially make
private copies of protected works.31 Similarly, it required national laws to
distinguish between lawful and unlawful sources of private copies, imposing levies
only on the former;32 it admitted the possibility of splitting proportionally the levy
on different products that were used in a chain of devices;33 it excluded the
possibility that the rightholder’s authorisation of reproduction has a bearing on the
fair compensation owed;34 and it accepted a scheme where half of funds collected
from levies were directed to social and cultural institutions set up for the benefit of
those entitled to compensation, attributing to Member States the discretion to
28
Id., paras 40-41.
29
Id., paras 46-49.
30
Case C-463/12 Copydan Båndkopi v Nokia Danmark [2012] OJ C399/13-14, para 26.
31
Case C-470/14 EGEDA and Others v AMETIC [2016] EU:C:2016:418, para 41.
32
Case C-435/12 ACI Adam and Others v Stichting de Thuiskopie [2014] EU:C:2014:254, paras 29
et seq.
33
Joined cases C-457-458-459-460/11 VG Wort v Kyocera and Others [2013] EU:C:2013:426, para
78 (but should not be different from the amount obtained if a single device was involved).
34
Id., para 40.
10

provide indirect compensation.35 According to the Court, a private levy system is
fair – i.e., it ensures a fair balance between conflicting interests36 - if it excludes
compensation in case of minimal prejudice,37 is non-discriminatory vis-à-vis
economic operators,38 and pro-vides an effective, publicised, and simple
reimbursement system in favour of legal persons or natural persons using the device
in a professional capacity.39
In sketching the frontiers of exceptions and interpreting their main concepts, the
European Court of Justice made extensive use of the teleological method of
interpretation, looking at the objectives of EU harmonisation and at the functions
of EU copyright law identified in the Directives. The same principles guided the
definition of the margin of discretion left to Member States when implementing
exceptions harmonised at EU level. While stating that such provisions must be
interpreted and applied strictly,40 particularly in the light of the high level of
protection to be granted to exclusive rights according to Recital 9 of the InfoSoc
Directive, the Court adopted a teleological approach and argued that the strict
reading of exceptions should not prejudice their effectiveness, but should permit
the fulfillment of their purpose.41 This general principle inspired subsequent
readjustments of existing norms, allowing for greater flexibility in their
implementation and a broadening by analogy of their scope to forms of conduct
that were not formally covered but pose the same balancing needs or constitute a
prerequisite for the functioning of the exception. The latter was the case in Ulmer
(C-117/13),42 where the Court of Justice stretched the provision that allows libraries
to make available works on their terminals (under Article 5(3)(n) of the InfoSoc
Directive) in order to grant them also the possibility of digitally reproducing their
35
Case C-462/09 Amazon.com v Austro-Mechana [2013] EU:C:2013:515, para 49.
36
Id., para 34.
37
Copydan Båndkopi, paras 27-28.
38
Id., para 33.
39
Amazon.com, paras 35-37; along the same lines see Copydan Båndkopi, para 55.
40
Infopaq, paras 56-57.
41
Joined Cases C-403/08 Football Association Premier League Ltd and Others v QC Leisure and
Others and C-429/08 Karen Murphy v Media Protection Services Ltd (FAPL) [2011] ECR I-09083,
para 163.
42
Case C-117/13 Technische Universität Darmstadt v Eugen Ulmer KG [2014] EU:C:2014:2196.
11

collections when digitisation was necessary to exercise the exception.43 The
European Court of Justice excluded that this possibility could be ruled out by
rightholders’ offer to conclude licensing agreements on digitised copies, since this
would mean subordinating the fulfillment of the purpose of the exception (““to
promote the public interest in promoting research and private study, through the
dissemination of knowledge”) to unilateral discretionary action on the part of
copyright owners.44 Along the same lines, in Vereniging Openbare Bibliotheken
(VOB),45 the Court extended the public lending exception under Article 6(1) of the
Rental Directive to cover e-books as well, arguing that in light of new technological
and economic developments,46 the effectiveness of the provision and its purpose of
contributing to cultural promotion would have been frustrated if its application
were to be limited only to material copies.47
The most innovative interventions, however, came in the field of fundamental

rights. Soon after the debut of the principle of fair balance as an interpretative tool
in the arsenal of the Court of Justice of the European Union, marked by the
judgment in Promusicae in the field of ISP injunctions,48 the Court was faced with
the difficult question of whether and to what extent fundamental rights could
influence the interpretation of exceptions, impacting on their nature and scope. The
European Court of Justice resolved some of the uncertainties in Painer, where it
ruled that the need to respect fundamental rights – in this case the freedom of press
– could not by itself justify the application of an exception meant to protect public
security. In other words, only the protection of the specific fundamental right
43
Id., para §57, provided that digitisation did not make it possible to print or store on USB devices
works so digitised, in order to strike a correct balance between the fulfillment of the scope of the
exception and the need to provide a high level of protection of rightholders’ exclusive rights.
44
Id., paras 27-28.
45
Case C-174/15, Vereniging Openbare Bibliotheken v Stichting Leenrecht [2016] EU:C:2016:856.
46
The Court cited Recital 4 of the Rental Directive in support, which requires that copyright law is
interpreted so to adapt to new economic developments (Id ., para 45)
47
Id., paras 50-53. The European Court of Justice supported this teleological conclusion with a
careful consideration of literal arguments. In fact, the limitation to tangible copies operated by
Article 7 of the WIPO Copyright Treaty and its Agreed Statement with regard to rental and
distribution rights is deemed not applicable to lending, and is not explicitly mentioned in the WIPO
(id., paras 33-34)
48
Case C-275/06 Promusicae v Telefonica de Espana [2008] ECR I-271, para 68.
12

representing the purpose of the exception could be used to stretch the borders of the
provision if necessary in order to fulfill its functions.49 This represented one of the
sporadic instances where the Court shed some light on its fair balance doctrine and
the impact of fundamental rights on the reading of exceptions, until the Grand
Chamber’s trio of decisions in July 2019 (see infra, Sect. 6). In this area, Court of
Justice case law, in fact, contributed to the creation of many more interpretative
problems than those it contributed to the solution of.
3.2 Problems created
Deckmyn50 is, in this sense, a paradigmatic case in point. The case concerned the
possibility of classifying as a parody a drawing, published by a calendar edited by
the plaintiff, which used the main character of a comic book – the mockery of a
benefactor – to criticise the Mayor of Ghent. The European Court of Justice stated
that the notion of parody should be understood as an autonomous concept of EU
law, to be interpreted uniformly across the Union.51 In addition, it required Article
5(3)(k) of the InfoSoc Directive to be implemented in a manner that ensures that a
fair balance between copyright and freedom of expression is preserved, particularly
by avoiding the imposition of criteria that are more restrictive than those deriving
from the commonly accepted characteristics of parody.52 The link between freedom
of expression and parody resulted in a more pervasive harmonisation of the content
of the excep-tion and in the implicit transformation of an optional provision into a
mandatory rule. Member States, in fact, could avoid implementing Article 5(3)(k)
of the InfoSoc Directive only if they could prove that they otherwise guaranteed
the fair balance between copyright and freedom of expression struck by the parody
exception.53 The European Court of Justice, however, also added that the exercise
of parody should not violate the principle of non-discrimination, thus implicitly
49
Case C-145/10 Eva-Maria Painer v Standard Verlags GmbH and Others [2011] ECR I-12533,
para 116.
50
Case C-201/13 Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others [2014]
EU:C:2014:2132,
51
Id., para 15.
52
Id., para 25.
53
As underlined by the European Copyright Society [2] p. 130.
13

suggesting that the protection of fundamental rights may also require the judicial
disapplication of national exceptions.54
By using the concept of fair balance between copyright and fundamental rights as
one of the main criteria to define the scope of exceptions, their optional or
mandatory nature and even their ultimate judicial applicability without providing
clear guidelines for the balancing exercise, the Court contributed to increase the
degree of uncertainty and fragmentation already intrinsic in the structure of Article
5 of the InfoSoc Directive. The same effect was triggered by the interpretation if
offered of Article 5(5) of the InfoSoc Directive and its three-step-test. In ACI Adam
and its progeny, the European Court of Justice rejected the idea that the test could
be used as a fair use clause or as a tool to affect or extend the substantive content
of exceptions under Article 5 of the InfoSoc Directive. 55 To the contrary, Article
5(5) of the InfoSoc Directive should be understood as requiring courts to consider
the impact of the exception on the normal exploitation of a work and the
rightholder’s legitimate interests, and to decide in favour of its disapplication or
limitation when the circumstances of the case caused the exception to alter the
balance required by the three-step test.56 Such an approach, criticised for its dubious
compatibility with the fair balance doctrine and the need to ensure an adequate
protection to fundamental rights,57 introduced yet another element of legal
uncertainty into the operation of EU copyright exceptions, remitting the ultimate
decision on their application to the discretion of national courts, again with no
guidelines reducing the risk of conflicting and fragmented outcomes.
Legal uncertainty is also likely to be the outcome of Deckmyn’s introduction of the

notion of autonomous concept of EU law within the context of Article 5 of the
InfoSoc Directive, which claims for the European Court of Justice the power of
advancing the level of harmonisation provided for by the InfoSoc Directive via the
standardisation of general definitions. This is the case regardless of whether or not
national exceptions covered by EU law either preexisted or were implemented after
54
Similarly see Griffiths [10] pp. 154-155.
55
ACI Adam, para 26.
56
Id., para 27.
57
See, e.g., among the most recent contributions, Senftleben [29], 1 et seq.
14

the intervention of the EU legislator. As long as it cannot be foreseen how far the
European Court of Justice may go in identifying autonomous concepts - thus
reducing the degree of flexibility and discretion left to Member States in defining
the content and scope of exceptions - national courts remain without guidance as to
the broadness of their margin of appreciation, with obvious consequences for
certainty and consistency in the judicial development of EU copyright law.
3.3 Problems left behind
Despite the large number of cases ruling on exceptions and limitations, several
ques-tions triggered by the evolution of European Court of Justice’s case law have
been left unsolved.
The first open question concerns the nature of exceptions under Article 5 of the
InfoSoc Directive. On the basis of the arguments developed in Deckmyn, in fact, it
was reasonable to conclude that any exception protecting a fundamental right that
conflicted with copyright should have been deemed mandatory, despite Recital 31
of the InfoSoc Directive specifying that Article 5(2)-(4) of the InfoSoc Directive
are provisions the implementation of which is optional. Whether the process of
balancing fairly copyright and fundamental rights could transform an optional
exception into a norm of mandatory application remained a question left behind by
the European Court of Justice and which was latent in doctrinal contributions and
national court decisions.
Deckmyn came in line with a number of decisions that seemed to suggest that
fundamental rights could have had the power to justify the introduction of judge-
made solutions to the balancing problems triggered by copyright law or the
technological evolution, beyond the borders set by law.58 Carrying the consequence
of the Court’s argument forward, scholars underlined how the constitutionalisation
of EU copyright law through the fair balance doctrine could have led to overcome
the exhaustive nature of the list of exceptions provided by Article 5 of the InfoSoc
Directive, dictated by Recital 32 of the InfoSoc Directive. 59 This conclusion
contrasted with other principles similarly set by the European Court of Justice,
58
The most relevant ones being Ulmer and VOB. On the point see Rosati [28] p. 511.
59
As in Geiger-Izyumenko [6] pp. 1 et seq.
15

ranging from the strict interpretation of exceptions and their conditions (Infopaq,
§§56-56) – albeit balanced with their purpose-oriented reading (FAPL, §163) - to
the requirement that Member States comply with general principles of EU law,
including proportionality and the three-step test, when exercising their discretion
in implementing exceptions (Painer, §105). However, despite the contrasting
precedents and the unclear compatibility with the legislative text, the Court has long
avoided undertaking the task of defining the boundaries of the horizontal effects of
fundamental rights in EU copyright law.60
The field of exceptions has not been immune either from questions triggered by the
unclear relationship between the InfoSoc Directive as lex generalis and directives
regulating narrower sectors. In fact, the few cases concerning exceptions other than
those listed by Article 5 of the InfoSoc Directive make abundant use of the lex
specialis argument to circumscribe the scope of its decisions to the sector-specific
directive involved in the case, in order to avoid the creation of precedents that could
challenge the outcome of a literal interpretation of the InfoSoc Directive or the
WIPO Copyright Treaty (WCT). A telling example is VOB, where the Court
emphasised the lex specialis nature of the Rental Directive and the absence of the
lending right within the WCT to justify the extension of the public lending
exception to e-books, despite the Agreed Statement to Articles 6 WCT concerning
the rights of rental and distribution limits the scope of the latter to tangible copies.61
While this approach is theoretically respectful of the role of the legislator in taking
decisions concerning policy and eventually correcting flaws and gaps in the
legislative texts, it has not helped smoothening the harshest inconsistencies of EU
copyright law, nor has it assisted Member States in dealing with them and in
understanding the space left to them to exercise their discretion.
The most pertinent problem the European Court of Justice has left behind, however,
is the clarification of some of the basic elements of the fair balance doctrine. Ten
years of decisions, from Promusicae on, have drawn a scattered conceptual map
for performing the balance between copyright and fundamental rights, articulated
around three steps, where after (a) identifying the right or freedom conflicting with
60
Id., p.44.
61
VOB, para 36.
16

copyright; and (b) identifying its connection with the specific provision or
injunction at stake in the case; the Court proceeds with (c) verifying the fairness of
the balance, assessed on the basis of criteria that have recently converged on the
test drawn by Article 52(1) of the EU Charter of Fundamental Rights.62 Along these
lines, the European Court of Justice first verifies whether the contested measure
negatively affects the essence of the freedom or right involved, since such a
violation excludes per se the presence of a fair balance. If the essence is not
prejudiced, the Court applies a proportionality test that is differently framed
depending on the sector analysed.63 While in the more developed sector of Internet
Service Provider injunctions the test is structured around the full range of criteria
under Article 52 of the Charter (a legitimate aim, appropriateness, necessity and
strict proportionality), the assessment of the fair balance used to define the scope
of rights and exceptions is much less articulated, and is spelled out in detail only in
few cases, with the majority of decisions providing only cursory and concise
references.64 The evaluation of the legitimate aim and appropriateness of the
measure is absorbed within the essence check, which focuses not on the
preservation of the core of the fundamental right(s) involved but on the preservation
of the effectiveness of the exclusive right or the exception. This is followed by a
relatively cursory evaluation of the necessity and strict proportionality of their
restriction for the protection of the conflicting right or freedom.65
Notwithstanding the fact that recent decisions have provided more guidelines for
national courts, the fair balance doctrine has remained underdeveloped, with
several important gaps left uncovered. The Court, in fact, has never attempted to
define the essence of copyright under Article 17(2) CFREU,66 and has only vaguely
identified its specific subject matter, that is the core of the economic and moral
62
I analyse the matter in more details in Sganga [30] p. 683.
63
More generally, see Kosta [21] pp. 61 et seq.
64
For further references see Sganga [30], p.694.
65
Ibid.
66
The debate on the role of the notion of essence in the fundamental right balance under the CFREU
has become particularly intense in recent years. On the point see Brkan [1] p. 337. The Court
suggested that a fair balance is excluded if such a core is violated, as in other fields of EU law. See
also Ojanen [26] p. 318.
17

rights to be balanced against other fundamental rights and freedoms.67 It has for
long failed to clarify the interplay between sources in construing the content of
conflicting rights, in particular regarding the role of the ECHR, and the possibility
of complementing the interpretation of the Charter’s fundamental rights with
common constitutional traditions68 (as has been done in the case of the right to
property69). And while the fair balance doctrine has remained hazy, the scope of its
potential impact on the judicial development of EU copyright law beyond the
borders set by legislative sources has been similarly blurred.
This was the framework that the EU legislator was confronted with when evaluating
the impact of the InfoSoc Directive and engaging in policy discussions on
exceptions and on the focus, content and nature that they should have had in the
next stages of copyright harmonisation.
4 Towards the CDSM Directive: the drowned and the saved
The first time the EU Commission reflected on the state of the art of exceptions in
EU copyright law was on the occasion of the Green Paper Copyright in the
Knowledge Economy (2008).70 Building on a review of the Single Market,71 which
emphasised the need to foster the free movement of knowledge and innovation as
67
Precedents from other fields have indicated the need to avoid taking as metrics the maximum
potential remuneration possible. See clearly in FAPL at para 94; Case C-62/79, SA Compagnie
générale pour la diffusion de la télévision, Coditel, and others v Ciné Vog Films and others [1980]
ECR 881, paras 15-16; Joined Cases 55/80 and 57/80 Musik-Vertrieb Membran and K-tel
International v GEMA [1981] ECR 147, paras 9, 12; Joined Cases C-92/92 and C-326/92, Phil
Collins v Imtrat Handelsgesellschaft mbH e Patricia Im-und Export. Verwaltungsgesellschaft mbH
e Leif Emanuel Kraul v EMI Electrola GmbH [1993] ECR I-05145, para 20; Case C-115/02 Rioglass
and Transremar [2003] ECR I-12705, para 23; Case C-222/07 UTECA [2009] ECR I-1407, para
25.
68
As in Case C-601/15, N . [2016] EU:C:2016:84, §§45-46 and Joined Cases C-217/15 and C-
350/15 Orsi and Baldetti [2017] EU:C:2017:264, para 15.
69
See, e.g., Case C-44/79 Hauer v. Land Rheinland-Pfalz [1979] ECR 3727; Case C-4/73 Nold v.
Commission [1974] ECR 491.
70
Green Paper Copyright in the Knowledge Economy COM (2008) 466 final, 16 July 2008.
71
Communication A Single Market for 21st Century Europe”, COM (2007) 724 final, 20 November
2007.
18

a fifth fundamental freedom,72 the Green Paper focused on the impact of the
InfoSoc Directive on the dissemination of research, science and educational
materials. More specifically, it asked whether an exhaustive list of non-mandatory
exceptions such as the one proposed by Article 5 of the InfoSoc Directive could be
considered adequate to perform its role, in light of evolving internet technologies
and socio-economic expectations.73 Parallel to this, the document identified four
exceptions as being both the most relevant for the dissemination of knowledge and
as being still missing, and called for stakeholders’ views. The Commission called
for a blanket exception for the digitisation of libraries’ and archives’ collections
and their subsequently being made available;74 a broader exception to increase
access and accessibility for people with disabilities;75 a standardised, mandatory
exception allowing the online dissemination of works for study and research
purposes;76 and an exception to cover user-generated content.77
Years later, the Commission launched a public consultation on the modernisation

of EU copyright rules (2013)78 which, among several other questions it raised, again
requested stakeholders and the general public to provide feedback on the problems
raised by the optional nature, lack of flexibility and territoriality of exceptions and
limitations.79 At the same time, it tabled the possibility of revising existing
exceptions or introducing new ones in response to emerging needs. The focus was
on access to library collections (preservation and archiving, off-premises access, e-
lending, mass digitisation), distant learning, research, disabilities, text and data
mining, user-generated content and the scope of the private copying and
72
Green Paper Copyright in the Knowledge Economy (n 70) p. 2.
73
Id., pp. 5-6.
74
Id., pp. 7-11.
75
Id., pp.13-15.
76
Id., pp.16-18.
77
Id., pp.19-20.
78
Commission, Public Consultation on the Review of the EU Copyright Rules, not accessible online
(removed).
79
Questions 21-23 (current legal framework), questions 24-25 (flexibility) and questions 26-27
(territoriality).
19

reprography exceptions.80 The report on responses (2014)81 highlighted, as had
been foreseeable, diverging perceptions and positions among stakeholders. Right-
holders opposed further harmonisation, flexibility and the transformation of
exceptions in mandatory rules, while institutional users and end-users, flanked by
the general public and in some instances by intermediaries, advocated for the
opposite perspective. Similar opposing views characterised views on the presence
of shortcomings or needs that would justify the introduction of new exceptions or
the amendment of existing ones.82
In the first policy paper following the consultation – the Communication A Digital
Single Market Strategy for Europe -83 the Commission linked the modernisation of
the European copyright framework to the goal of providing better access to digital
content, which is considered one of the main drivers of the growth of the digital
economy.84 Together with portability, cross-border access and regulation of
intermediaries, the Commission highlighted the need to harmonise specific
exceptions, with the aim of achieving greater legal certainty for the cross-border
use of protected materials for specific purposes, such as research, education, text
and data mining,85 the latter being particularly important for its impact on
innovation in AI and the data economy. In the Communication that followed –
Towards a modern, more European copyright framework -,86 the Commission
specified the policy interventions needed to proceed with the modernisation of EU
copyright rules to meet the goals of the Digital Single Market strategy. It
highlighted the need to adapt exceptions to digital and cross-border environments,
emphasising the problems created by the optional nature of current exceptions, by
80
Questions 28-31 (preservation an archiving), questions 32-35 (off-premises access to library
collections), questions 36-39 (e-lending), questions 40-41 (mass digitisation), questions 42-46
(distant learning), questions 47-49 (research), questions 50-52 (disabilities), questions 53-57 (text
and data mining), questions 58-63 (user-generated content), questions 64-71 (scope of private
copying and reprography exception).
81
Commission, ‘Report on the responses to the Public Consultation on the Review of the EU
Copyright Rules’, not accessible online (removed).
82
Id., p.22.
83
COM (2015) 192 final, 6 May 2015,
84
Id., p.6.
85
Id., p.7.
86
COM (2015) 626 final, 9 December 2015.
20

their vague definitions, and by the national fragmentation that ensued. 87 It then
argued that this situation posed problems particularly for exceptions related to
education, research, access to knowledge and the preservation of cultural heritage
in the digital age. On this basis, it restricted the scope of the upcoming legislative
intervention to a handful of matters, ranging from the implementation of the
Marrakesh Treaty on the disability exception to the introduction of exceptions
relating to text and data mining for research purposes, to the digitisation of and
remote access to libraries’ collections, to illustration for (online) teaching, and to
freedom of panorama.88
This long path culminated with the Communication Promoting a fair, efficient and
competitive European copyright-based economy in the Digital Single Market89
(2016), published to introduce the proposal of a Directive on Copyright in the
Digital Single Market90and the related impact assessment.91 The newly-proposed
exceptions were made mandatory in order to avoid legal uncertainty in cross-border
digital uses of protected works, while maintaining a high level of protection of
rights, and limited to illustration for digital teaching, the digital preservation of
libraries’ collections and to text and data mining. Some outstanding matters such
as the facilitation of the remote consultation of works for research were postponed
for further assessment, while others were crossed out from the list, such as the
panorama exception, in the belief that Member States already enjoyed sufficient
margin of manoeuvre to lay this down and that several of them had already done
so.92
87
Id., p.6.
88
Id., pp. 7-8.
89
COM (2016) 592 final, 14 September 2016.
90
Proposal for a Directive of the European Parliament and of the Council on copyright in the
Digital Single Market, COM (2016) 593, 14 September 2016.
91
Commission, Impact Assessment on the modernisation of EU copyright rules, SWD(2016) 301
final, 82.
92
Communication Promoting a fair, efficient and competitive European copyright-based economy
in the Digital Single Market, pp. 6-7. The decision was backed by the results of the public
consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’,
held by the Commission from March to September 2016, the responses to which are available at
https://ec.europa.eu/digital-single-market/en/news/synopsis-reports-and-contributions-public-
consultation-role-publishers-copyright-value-chain (last accessed 13 May 2020).
21

Ten years of consultations and policy debates led to the emergence of a wide array
of flaws in the field of exceptions. Only a few of these managed to remain under
the EC spotlight and be made the subject of a legislative intervention, while others
– from e-lending to digital exhaustion,93 user-generated content and remote access
to digital collections - were abandoned, with no sign that they will be considered
again in the future. Most importantly, however, the Commission decided not to face
the general problems raised by the territoriality, optional nature and limited
flexibility of existing EU copyright exceptions. It only used the lessons derived
from past mistakes in order to change its approach to the harmonisation process,
introducing between the lines the principle that exceptions having inevitable and
substantial cross-border effects must be made mandatory and be well defined in
order to avoid the shortcomings of copyright territoriality. This is, in fact, the
underlying thread linking the exceptions introduced in the CDSM Directive.
5 Copyright exceptions in the CDSM Directive
The CDMSD introduces three new horizontal exceptions to copyright, which are
declared mandatory and not overridable by contract to ensure the smooth
functioning of the Digital Single market and to ensure legal certainty in cross-
border settings.94 Articles 3 to 6 of the CDSM Directive provide exceptions or
limitations for text and data mining, for digital and cross-border teaching activities
and for the preservation of cultural heritage, amending the InfoSoc and Database
Directives. In line with previous legislative acts, the new derogating measures are
said to have the goal of achieving a fair balance between the rights and interests of
93
Addressed by the Grand Chamber of the Court of Justice in case C-263/18 Nederlands
Uitgeversverbond and Groep Algemene Uitgevers v Tom Kabinet Internet BV and Others [2019]
EU:C:2019:1111.
94
CDSM Directive, Recital 5. The existing exceptions and limitations in Union law should continue
to apply, including to text and data mining, education, and preservation activities, as long as they
do not limit the scope of the mandatory exceptions or limitations provided for in this Directive,
which need to be implemented by Member States in their national law. Directives 96/9/EC and
2001/29/EC should, therefore, be amended.
22

authors, other rightholders and users, and to be limited in their application by the
three-step test.95
The highly debated text and data mining exception were introduced in response to
the alleged insufficiency of existing limitations to cover all forms of conducts
involved in the wide array of existing text and data mining (TDM) technologies,96
and to apply also against terms of licence that would otherwise exclude such uses.
Their introduction answers to the need to preserve the Union’s competitiveness as
a research hub in the era of data science, where digital technologies have
progressively assumed a key role in public and private research.97
Leaving unprejudiced existing provisions which have already found application for
TDM activities, such as the mandatory exception of temporary reproduction under
Article 5(1) of the InfoSoc Directive,98 the CDSM Directive introduces two TDM-
related provisions. The first one, devoted to TDM for the purpose of scientific
research, requires Member States to introduce an exception in favour of research
organisations and cultural heritage institutions for reproductions and extractions of
protected works and databases to which they have lawful access. Recital 14 of the
CDSM Directive specifies that an access is lawful if the content is acquired via
open access, licences and subscriptions, and free online availability. In line with
EU re-search policies, the exception is meant to cover also research activities
carried out in the context of public-private partnership.99 At the same time, the
definition of research organisations and cultural heritage institutions is carefully
circumscribed so as to reach a common understanding across the Union, in the light
of their great diversity.100 Additional safeguards include the possibility for
95
CDSM Directive, Recital 6.
96
97
98
CDSM Directive, Recital 9, which refers to TDM techniques that do not require making copies
beyond the scope of the exception.
99
100
100 Ibid., referring to universities, other higher education institutions and their libraries, and
other entities such as research institutes and hospitals that carry out research. The list is deemed
exemplificative, but the different entities must share their not-for-profit nature and public-interest
mission, the latter one being reflected, e.g., through public funding or recognition in laws and public
contracts. The definition does not cover entities where commercial undertakings exercise decisive
23

rightholders to apply strictly necessary measures to ensure the security and integrity
of networks and databases, and a duty for beneficiaries of the exception to store the
copies if an appropriate level of security is provided. Member States are left free to
decide, upon discussions with stakeholders, on the conditions and arrangements
necessary for beneficiaries to be able to retain copies of extracted materials for
research purposes.101 No discretion is allowed, however, on whether to provide fair
compensation for rightholders, since the nature and scope of the exception are said
to cause minimal harm to rightholders’ interests.102 Along the same lines, Article 4
of the CDSM Directive provides a general, all-purpose text and data mining
exception which, unlike Article 3, can operate only if TDM has not been expressly
reserved by rightholders in an appropriate manner.
Before and after the enactment of the CDSM Directive several scholars engaged in
an intense debate on the policy options available for the EU legislator in regulating
text and data mining technologies.103 A number of their observations were taken
into account and reflected in the legislative text, leading to a clearer legal
framework through more detailed definitions, the mandatory nature of the
exceptions, and the non-overridability by contract of Article 3 of the Directive. This
will likely lead to a homogeneous decrease in the economic burden suffered by
research institutions. Yet, a number of issues have remained unsolved, such as the
missed opportunity to provide special treatment for SMEs, while the difficult
demarcation between Articles 3 and 4 of the Directive is destined to trigger
regulatory fragmentation in the big data economy, with all the systematic
consequences that may ensue from this. This option, although it brings
standardisation and thus legal certainty in cross-border activities, fails to take
sufficient account of the substantial differences in the research environment of the
various Member States, depriving some ecosystems of the benefits of a well-
influence or control. Recital 13 covers publicly accessible libraries, museums, archives, audiovisual
heritage institutions, and similar facilities of educational establishments, research organisations and
public sector broadcasting organisations.
101
CDSM Directive, Recital 15. Uses for peer review, joint research and the like remain covered by
the exception of Article 5(3)(a) InfoSoc.
102
103 See, e.g., Geiger-Frosio-Bulayenko [3] p. 814; Hilty-Sutterer [15]; Margoni-Kretschmer
[24].
24

functioning TDM exception.104 At the same time, some risk of fragmentation of
national solutions may arise from the fact that Article 3(4) of the CDSM Directive
remits to Member States the task of encouraging stakeholders to define commonly-
agreed best practices on the application of obligations and measures on the security
and integrity of networks and copy retention.
The second mandatory exception introduced by the CDSM Directive allows the
digital use of protected works for the sole purpose of illustration for teaching, to
the extent justified by its non-commercial purpose. Article 5 of the Directive
conditionalises the enjoyment of the exception to the indication of the source of the
materials used, and to the fact that the use takes place under the responsibility of an
educational establishment or through a secure electronic environment open only to
the establishments’ students and teaching staff. Although the exception is
mandatory, Member States are free to decide whether to exclude its application for
specific uses or types of works (to the extent that suitable licences are easily
available and visible in an appropriate manner on the market), and whether to
require the payment of fair compensation.105 In order to overcome the negative
effects of the national regulatory fragmentation that may follow, Article 5 of the
Directive introduces a place-of-origin rule, providing that the use of protected
works for the sole purpose of teaching shall be deemed to occur solely in the
Member State where the educational establishment is located.
The new provision undoubtedly has the merit of solving uncertainties in the cross-
border offering of digital courses and degrees, tackling the fragmentation and
narrow scope of national solutions with a blanket provision. Yet, the margin of
appreciation left to Member States may trigger a legislative race to the bottom in
sensitive matters such as the provision of fair compensation,106 the definition of the
extent to which a work can be used and the definition of the notion of secured
electronic environment, the favouring of licence solutions above the exception, and
104
Similarly, see Rosati [27] p. 429.
105
CDSM Directive, Article 5(2), and Recital 23 (licences) and 24 (fair compensation).
106
To avoid tilting the fair balance, however, Recital 24 CDSMD requires Member States to set the
level of fair compensation by taking into due account national educational objectives and the harm
to rightholders, and encourage the use of systems that do not create an administrative burden for
educational establishments.
25

the qualification of the “adequacy”, “availability” and “visibility” of licensing
options.107 In addition, the broad discretion attributed to national legislators does
not solve the unclear relationship between Article 5 CDSMD and the plethora of
different national teaching exceptions introduced under Article 5 of the InfoSoc
Directive, leaving the problem for the European Court of Justice to decide in the
years to come.
The third and last exception introduced by the CDSM Directive allows a cultural
heritage institution to make copies of protected materials that are permanently in
their collections, in whatever format or medium, for the purposes of and to the
extent necessary to their preservation. The provision, mandatory and not
overridable by contract, comes as a welcome step to crystallise the Ulmer decision
into a binding norm, eliminating national differences in the transposition of Articles
5(2)(c) and 5(3)(n) of the InfoSoc Directive. This promises to lay the groundwork
for better cooperation among institutions, to enhance interoperability and facilitate
the development of common standards, and to reduce transaction costs for licensing
when needed, while allowing cultural heritage institutions to directly manage
preservation projects by abating some of their costs. At the same time, the Directive
does not provide a clear definition of cultural heritage institutions, creating grounds
for uncertainty regarding the applicability of lex specialis definitions such as those
offered by the Orphan Works Directive.108 Member State discretion is reduced by
the decision of the EU legislator to limit the exception solely to the purposes of
digitisation, while it remains unclear the extent to which Recital 27, by stating that
“acts of reproduction (. . . ) for purposes other than the preservation of works (. . .
) should remain subject to the authorisation of rightholders, unless permitted by
other exceptions or limitations provided for in Union law”, may limit the flexibility
107
In fact, Recital 23 of the CDSM Directive specifies only that these goals can be reached by basing
such schemes on collective licensing or extended collective licensing and that, in order to guarantee
legal certainty, Member States should specify under which conditions an educational establishment
can enjoy the exception or should obtain a license.
108
Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on
certain permitted uses of orphan works [2012] OJ L299/5 [OWD].
26

left to national legislators by the Ulmer decision with regard to Article 5 of the
InfoSoc Directive.
The Directive also makes provision regarding optional InfoSoc exceptions –

quotation, criticism, review, caricature, parody and pastiche109- requiring Member
States to make them mandatory in favour of users uploading and making content
available on online-sharing service providers, in the context of the implementation
by the latter of content-filtering technologies (see Article 17(7) and Recital 70 of
the Directive). While the decision is in line with the overall approach adopted by
the Directive vis-à-vis exceptions, and it follows the interpretation the European
Court of Justice offered in Deckmyn, where the protection of freedom of expression
justifies harmonising and implicitly conceptualising as mandatory the parody
exception, it undoubtedly creates a hiatus with the optional nature of the list of
exceptions provided under Article 5 of the InfoSoc Directive, where quotation,
criticism, review, caricature, parody find their general regulation. It remains to be
clarified whether the attribution of a mandatory nature to specific exceptions,
motivated by the need to ensure the uniform protection of users’ fundamental rights
across the Union, should and will support similar considerations and effects on
exceptions under Article 5 of the InfoSoc Directive lying beyond the scope of
Article 17 of the CDSM Directive.
6 Fundamental rights and flexibility in copyright exceptions: keeping the

floodgates shut? The Grand Chamber’s decisions in Funke Medien, Pelham
and Spiegel Online
While the EU legislator persisted in its inertia, responding only to selected pressing
problems and offering marginal hints on the approach to be undertaken in order to
solve the hiatus created by highly harmonised exclusive rights operating against
fragmented territorial exceptions, the European Court of Justice again got the
opportunity to push forward the harmonisation of EU copyright exceptions with
three contemporary referrals by the Bundesgerichtshof – Funke Medien, Pelham
109
InfoSoc Directive, Article 5(3)(d) (quotation for criticism or review); Article 5(3)(k) (parody,
caricature, pastiche).
27

and Spiegel Online.110 The three decisions, issued separately on the same day by
the Grand Chamber, pronounced on the degree of flexibility and discretion left to
Member States and their courts in the field of exceptions. With a grand opening of
a new boundary-setting season in European Court of Justice case law, Funke
Medien, Pelham and Spiegel Online clarified two controversial points left unsolved
by the Court’s precedents in the field, namely (i) the extent to which fundamental
rights under the EU Charter of Fundamental Rights should be taken into account
when defining the scope of exceptions and limitation, and (ii) whether they might
justify the judicial introduction of exceptions beyond the scope of Article 5 of the
InfoSoc Directive.111
6.1 The facts and AG Szpunar’s Opinions
In Funke Medien the plaintiff, owner of the website of a German newspaper

(Westdeutsche Allgemeine Zeitung), filed an administrative request for access to
classified military reports to members of the federal Parliament and government on
matters concerning the deployments of Federal Armed Forces. The request was
rejected, but Funke Medien still obtained the documents from an undisclosed
source and published them online. The Federal Republic of Germany applied for
an injunction to force the removal of the papers on grounds of copyright
infringement. The request was granted by the first instance court, rejected on
appeal, and the subsequent appeal before the Bundesgerichthof produced the
reference to the European Court of Justice. Pelham was a by-product of a long
judicial saga where Mr Hutter, the leader of the band Kraftwerk, sued Mr Pelham
for having infringed their reproduction right in the song “Metall auf Metall” (1977)
and related rights of reproduction and distribution of the phonogram by using two
seconds of it in a loop in the defendant’s hip-hop song “Nur mir” (1997). When
also the BGH rejected Mr Pelham’s argument that his sampling was exempted from
copyright infringement since it constituted an exercise of the right to free use (§24
UrhG), which allows uses of protected works to create new in-dependent works, he
claimed before the Bundesverfassungsgericht (BVerfG, Federal Constitutional
110
Supra, note 7.
111
Funke Medien, para 15; Pelham, para 25; Spiegel Online, para 15.
28

Court) that the restrictive interpretation of the exception violated his freedom of
creative expression. Upholding the claim, the BVerfG sent the case back to the
BHG, originating the second referral to the European Court of Justice.112
Spiegel Online revolved around the scope of the quotation exception and the
balance between copyright and freedom of press. In 1988 Mr Beck, a German
politician, published, under a pseudonym a manuscript on criminal policy relating
to sexual of-fences against minors, which had the title changed and some sentences
shortened by the publisher without his consent and despite his objections. The
manuscript was used against him during the 2013 parliamentary election campaign.
To defend himself, Beck provided several newspapers with the original manuscript
to prove that the criticised parts were caused by the amendments made by the
publisher uploading it on his website. Spiegel Online published an article confuting
Beck’s statements, and to back its claims it provided a hyperlink to the original
version of his contribution. Mr Beck had his claim of copyright infringement upheld
at first instance and on ap-peal. Spiegel Online appealed again in front of the BGH,
which referred the case to the European Court of Justice.113
AG Szpunar’s long and articulated Opinions all featured a strict approach towards
the question of the degree of flexibility fundamental rights could introduce within
the copyright system.
In Funke Medien the Advocate General excluded the possibility that the questions
raised by the Bundesgerichtshof could be addressed with a general answer, arguing
that this would cause either extreme rigidity or result in excessive judicial
112
Along with the questions in common with Funke Medien and Spiegel Online, specific points in
Pelham were whether the reproduction right under Article 2(c) InfoSoc and Article 9(1)(b) of the
Rental II Directive covered also very short audio snatches of another phonogram; whether §24 UrhG
on free uses, not included in the list of exceptions of Article 5 InfoSoc, could be considered
compatible with EU law; and whether the quotation exception under Article 5(3)(d) could be applied
in cases where it was not evident that another person’s work or subject matter was being used.
113
Aside from the points raised also in Funke Medien and Pelham, in Spiegel Online the BGH
requested clarification (i) on the applicability of the quotation exception (Article 5(3)(d) InfoSoc)
in case of hyper-linking to an independent file, with no integration of the quoted text into the new
text; (ii) on whether the notion of “lawfully made available to the public” under the same provision
requires the author’s consent; and (iii) on whether the fact that it was possible and reasonable for
Spiegel Online to obtain Beck’s consent hindered the application of the exception on reporting of
current events under Article 5(3)(c).
29

discretion.114 He favoured, instead, a case-by-case approach, which allowed a
correct application of the proportionality principle in a balancing exercise. 115 His
starting assumption was that copyright already features instruments that allow
balancing with fundamental rights, and which are presumed to be sufficient to
achieve it “unless a question of validity of those provisions come into play”.116
Among these tools, exceptions are conceived to strike this balance while preserving
the substance of authors’ rights,117 and can be defined as internal limits to
copyright.118 Fundamental rights, instead, are external limits to copyright,
intervening to constrain authors’ rights every time the enforcement of copyright
rules would lead to their violation.119 This may happen only in exceptional cases,
since a systematic conflict between a fundamental right and a copyright rule would
suggest the invalidity of the latter.120 In no case, however, could this lead to the
development of a general doctrine allowing the introduction of exceptions beyond
the borders set by the legislature to protect fundamental rights. In fact - the Court
states - “it is one thing to give precedence to freedom of expression over copyright
in a specific and very particular situation. It is quite another to introduce into the
harmonised copyright system, outside the provisions of substantive EU law
governing that area, exceptions and limitations which, by their nature, are intended
to apply generally”.121
Along these lines, in Pelham the AG avoided using fundamental rights to rule on
the applicability of the three exceptions of Article 5 of the InfoSoc Directive
involved in the case – de minimis reproduction, quotation and parody – instead
114
Opinion in Funke Medien, para 29.
115
Id., para 31.
116
Id., para 30.
117
Id., para 37.
118
Id., para 40.
119
Id. ara 41.
120
Ibid. AG Szpunar underlined how this was also the opinion of the ECtHR in Ashby Donald and
Others v. France (2013) ECHR 287, and in Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden
IHRL 2038 (ECHR 2013).
121
Id., para 71. This sentence seems to lay the foundations for the position that AG Szpunar would
adopt in the following two Opinions in Pelham and Spiegel Online, balancing the opening towards
a broader use of fundamental rights in EU copyright law which some authoritative scholars have
read behind the words of the Opinion in Funke Medien (Geiger- Izyumenko [6] p. 46).
30

providing a strict literal and systematic reading of legislative sources. 122 The
Opinion ruled out the possibility of introducing new exceptions beyond the list
provided by the InfoSoc Directive,123 and took the opportunity to define the
boundaries of Member States’ and judicial discretion in going beyond the
boundaries set by EU copyright law using the fundamental rights argument.
Building on the Melloni doctrine,124 it argued that under Article 53 CFREU
Member States could apply their constitutional standards of protection of
fundamental rights to assess the validity of measures implementing EU law only if
the primacy, unity and effectiveness of the latter remained preserved.125 According
to the Advocate General, in the context of EU copyright law, national discretion is
limited by the autonomous concepts of EU law contained in the InfoSoc Directive,
by the boundaries set by Article 5 of the InfoSoc Directive and, in line with
Deckmyn, by the obligation to implement specific exceptions in order to ensure a
fair balance between copyright and EU fundamental rights.126 Such obligations
cannot be circumvented by using national constitutional standards,127 and for this
reason, the approach followed by the German Constitutional Court should be
understood as contrary to EU law.128 More generally, the Opinion emphasised that
the balance between rights and freedoms is a task for the legislature,129 subject to
judicial controls “within the limits of the applicable provisions enjoying a
presumption of validity, including with regard to fundamental rights”.130 In this
sense, the role of fundamental rights within EU copyright law can only be that of
122
Opinion in Pelham, paras 67, 70 on quotation and caricature, parody of pastiche.
123
Id., para 54.
124
Case C-399/11 Stefano Melloni v Ministerio Fiscal [2013] EU:C:2013:107.
125
Id., para 63. The question raised by the Bundesgerichtshof built on the BVerfG doctrine that re-
quests assessing the constitutional legitimacy of national measures implementing EU Directives
under the CFREU only if the legislator did not have any discretion, and under the German
Constitution when a margin of appreciation was instead present. Id., para 72.
126
Id., paras 76-77.
127
Id., para 78.
128
Id., paras 81-82, 89. For a critique see Jutte-Quintais [20] p. 654.
129
See particularly at paras 94-95, where the AG refers to the ECtHR’s doctrine in Ashby Donald
(n 122).
130
Id., para 94.
31

“a sort of ultima ratio which cannot justify departing from the wording of the
relevant provisions except in cases of gross violation of the[ir] essence”.131
The Opinion in Spiegel Online reiterated the same principles, excluding the idea
that Article 167(4) TFEU on the protection and promotion of cultural diversity in
the Union could broaden the discretion of Member States in implementing EU
copyright directives.132 In addition, it took the opportunity to reject the proposal,
advanced by some scholars, of construing an open-ended balancing clause based
on Article 11 of the EU Charter of Fundamental Rights (freedom of expression),133
arguing that this would prejudice EU harmonisation by leaving too much discretion
to national courts,134 while the balance between fundamental rights – all deserving
equal protection – was ultimately to be set by the legislature.135
6.2 The Grand Chamber’s decisions
The three cases were decided by the Grand Chamber (rapporteur: Judge Ilesic) on
the same day (29 July 2019). Their approach to the questions raised by the referring
court was more balanced than the positions adopted by the Advocate General’s
Opinions, and offered important answers concerning the most controversial aspects
of the interplay between fundamental rights and copyright as this had been
construed up to that point by the case law of the Court of Justice.
In contrast to exclusive rights, which are fully harmonised by the InfoSoc

Directive,136 the European Court of Justice believes that the language used by
Articles 5(2) and (3) of the InfoSoc Directive, coupled with the travaux
préparatoires, clearly shows that the extent of the discretion left to Member States
in regulating exceptions depends on the impact of the degree of harmonisation on
131
Id., para 98 (emphasis added)
132
See the Advocate General’s Opinion in Spiegel Online, para 23, which rejects also the argument
accord-ing to which the importance attributed to freedom of expression constituted a German
cultural specificity.
133
Most recently Geiger-Izyumenko [6] p. 1 et seq.
134
See the Advocate General’s Opinion in Spiegel Online, para 63.
135
Id., para 70.
136
Funke Medien, paras 29-38; Pelham, paras 78-85.
32

the smooth functioning of the internal market.137 In any case, in implementing these
provisions national legislators must abide by general principles of EU law (e.g.,
proportionality), by the conditions set by Article 5 of the InfoSoc Directive, by the
three-step-test, by the need to respect the goal of the Directive and to safeguard the
effectiveness, purpose and fair balance of the exception, and by the Charter of
Fundamental Rights.138 The European Court of Justice confirmed the application
of the Melloni doctrine, allowing national authorities and courts to apply national
standards of protection of fundamental rights only if this does not result in lowering
the degree of protection offered by the Charter and does not prejudice the primacy,
unity and effectiveness of EU law.139
The interplay between exceptions and fundamental rights is depicted as a

mechanism featuring different nuances. The exhaustive nature of the list provided
by Article 5 of the InfoSoc Directive, the need to apply exceptions consistently
across the EU, and to preserve legal certainty and the functioning of the internal
market led the European Court of Justice to exclude the possibility of using
fundamental rights to introduce exceptions beyond the scope of the InfoSoc
provision.140 However, for the Court the fact that the fair balance was chiefly set
by the legislator and generally achieved by Article 5(2) and (3) of the InfoSoc
Directive did not imply,141 as it had for the AG, the need to opt for a strict literal
reading of the Directive other than in cases of gross violation of the essence of a
fundamental right. Confirming, instead, the principles laid down from Promusicae
on,142 the European Court of Justice underlined that Article 17(2) of the Charter
attributes neither an absolute nor inviolable status to copyright,143 and that national
courts must ensure that the effectiveness of exceptions is safeguarded, providing
137
Funke Medien, paras 39-44; Spiegel Online, paras 23-38.
138
Funke Medien, paras 45-53; Spiegel Online, paras 31-38.
139
Funke Medien, paras 30, 32; Pelham, paras 78, 80; Spiegel Online, paras 19, 21.
140
Funke Medien, paras 56-63; Pelham, paras 58-64; Spiegel Online, paras 41-48.
141
142
Funke Medien, para 68; Spiegel Online, para 52.
143
33

also extensive interpretations when these are needed, particularly when the
protection of fundamental rights and freedoms is at stake.144
The Court followed the same principle to define the scope of exceptions, in line
with Deckmyn. In Spiegel Online it excluded the possibility that the exception of
reproduction for the purpose of reporting current events (under Article 5(3)(c) of
the InfoSoc Directive) could be subject to the author’s prior consent, arguing that
the imposition of such a requirement would hinder the fulfillment of the provision’s
goal of fast dissemination of information among the general public, thus frustrating
the exercise of freedom of expression and of the press.145 Analogously, in Pelham
it used the notion of fair balance to define the content of exclusive rights, excluding
the possibility that a 2-second sample could entail a partial reproduction under
Article 2 of the InfoSoc Directive,146 since sampling is a form of artistic expression
covered by freedom of the arts (Article 13 CFREU and 10(1) ECHR),147 which does
not prejudice a producer’s investments and capability to achieve a satisfactory
return if embedded in another song in a modified form unrecognisable to the ear.148
Looking at the function of copyright, the Court excluded that rightholders could
prevent such an activity, since this would hinder the exercise of a fundamental right
“despite the fact that such sampling would not interfere with the opportunity which
the producer has of realising satisfactory returns on his or her investment”.149
6.3 Taking stocks and looking ahead
The Grand Chamber’s reasoning provided useful hints on several matters. It made
a first attempt to define the sources for the definition of content and scope of
freedoms and rights involved in the copyright balance, stretching the list beyond
the Charter and the European Convention on Human Rights to Member States’
144
Funke Medien, para 71; Spiegel Online, para 55.
145
Spiegel Online, paras 71-73.
146
Pelham, para 33.
147
Id., para 35.
148
Id., para 37. The same reference to the functions of the right features the definition of the scope
of Article 9 Rental, based on Recitals 2 and 5, which justifies the attribution of a distribution right
to phonogram producers with the need to fight piracy and grant them the possibility to recoup their
risky investment (paras 44-46).
149
Id., para 38.
34

common constitutional traditions and international human rights instruments. At
the same time, it returned to the functions of copyright to identify the core content
of exclusive rights to be taken into account when performing the strict
proportionality assessment. How-ever, the most significant contribution Funke
Medien, Pelham and Spiegel Online brought to the development of EU copyright
law was the reordering of the case law of the Court of Justice in the field of
exceptions, and the clarification of the room for manoeuvre left for Member States
and courts to shape copyright limitations through the instrument of fundamental
rights.
The boundaries of Drittwirkung in EU copyright law have been redesigned by

taking stock holistically of the most important precedents in the field. Rather than
favouring the legislative status quo, as suggested by the Advocate General’s
Opinions, the Grand Chamber reiterated the need to depart from a strict reading of
limitations to maintain their effectiveness, particularly when directed to protect
fundamental rights. And while it clearly excluded the idea that fundamental rights
could justify the judi-cial introduction of new exceptions beyond the legislative
text, the Court confirmed the flexibility left to courts by stating that Article 5 of the
InfoSoc Directive attributed rights to users, and not mere defences.
The room left to national legislators and courts to adapt exceptions to their social,
economic and cultural needs, and to interpret them in light of their own standard of
protection and the hierarchy of fundamental rights has also been subject to a full
restatement.
In contrast to exclusive rights, copyright limitations are not fully harmonised. Their
degree of harmonisation depends on the impact their fragmentation may have on
the internal market. The discretion left to Member States is limited by the bound-
aries of Article 5 of the InfoSoc Directive – the three-step test included – in addition
to the goals of the directive, the wide array of general principles of EU law, and the
need to preserve the effectiveness and purpose of each exception. 150 In addition,
and in line with Deckmyn, the Court reiterated that the decision on the
implementation of optional exceptions and the definition of their scope should also
150
Funke Medien, paras 45-53; Spiegel Online, para 31-38.
35

align with fundamental rights protection. This entails a further reduction of the
margin of appreciation left for national legislators, for an exception may become
implicitly mandatory if no other measure could reasonably be implemented to avoid
copyright protection violating or disproportionately compressing a given
fundamental right.
The direction taken by the European Court of Justice is in line with and
complementary to the approach adopted by the EU legislator in the past years which
culminated in the CDSM Directive, and is directed to a greater harmonisation of
exceptions for reasons of preservation of the functioning of the internal market and
protection of fundamental rights. The Orphan Works Directive, the Marrakesh
Directive and the CDSM Directive justify the mandatory nature of the exceptions
they introduce on this two-fold basis. The CDSM Directive, however, takes a step
for-ward by declaring mandatory exceptions that are merely optional under Article
5 of the InfoSoc Directive, albeit only in favour of users uploading content on
content-sharing online platforms, grounding the regulatory option on the need to
ensure the uniform protection of fundamental rights in the implementation of
content-filtering technologies. The policy choice, in line with Deckmyn, traces a
path that once again intertwines with the European Court of Justice’s indications.
The implications are yet to unfold, but the signs of convergence and greater
harmonisation featuring the most recent interventions two years carry the promise
of a more ordered, clearer and comprehensive development of the EU copyright
exceptions system than has been the case throughout most of the three decades of
EU copyright history.
7 Conclusions
The harmonisation of EU copyright exceptions has for long been characterised by

substantial flaws and pitfalls. Their lack of flexibility has often triggered
shortcomings in the copyright balance. Legal certainty and cross-border exchanges
have been frustrated by territoriality, fragmentation of national solutions caused by
the optional nature of most of the limitations introduced by EU directives, and weak
coordination of definitions and concepts across leges generales and leges speciales.
36

The phenomenon has attracted the attention of scholars, activists and a proportion
of the stakeholders, but has not been tackled by the EU legislator until recent times.
From 2008 on, however, exceptions have prominently featured in the case law of
the Euro-pean Court of Justice, and have gained space in the policy debate,
becoming the main object of key preparatory works and, more recently, of two
pieces of legislation – the Orphan Works Directive and the Marrakesh Directive. In
2019, the CDSM Directive introduced three new horizontal limitations, declaring
them mandatory and not over-ridable by contract. At the same time, the Directive
attributed a mandatory nature to a number of optional exceptions under Article 5 of
the InfoSoc Directive, in order to protect users’ fundamental rights – and
particularly freedom of expression – against the implementation of content-filtering
technologies by online content-sharing platforms. A few months later, the Grand
Chamber of the Court of Justice issued three decisions on the same day on the
impact which fundamental rights may and should have on the scope and
interpretation of exceptions, and on the possibility of stretching this beyond the
boundaries set by EU law. The three rulings redefined the room left to national
legislators and courts to adapt exceptions to their social, economic and cultural
needs, confirming the Melloni doctrine and its application in the field of EU
copyright law. At the same time, they confirmed the lessons taught by numerous
European Court of Justice precedents on copyright limitations, from Promusicae to
FAPL, Ulmer, VOB and Deckmyn, consolidating the link between the Court’s case
law and the legislative approach to the nature of exceptions and the implications of
their connections to fundamental rights.
The European Court of Justice has not completely released EU copyright

exceptions from the rigidity of exhaustive lists, confirming the need to respect the
boundaries set by legislative acts. However, it has reiterated that their application
cannot be straitjacketed by strict interpretations if this runs counter to the
preservation of their effectiveness, and that their scope can and should be extended
when necessary to protect fundamental rights and freedoms. The protection of
fundamental rights may also justify the transformation of optional exceptions into
mandatory provisions having a minimum common content across the Union. While
the position adopted by the Court and confirmed by the CDSM Directive has
reduced the margin of discretion left to national legislators, it has increased legal
37

certainty and the degree of flexibility of EU copyright law. Several shortcomings
remain unaddressed, such as the general territoriality of exceptions and their
fragmented regulation, scattered as they are across uneven and loosely connected
sources. This fragmentation is particularly challenging when it results in the lack
of a uniform definition of concepts across sources. At the same time, a number of
problematic issues which emerged during public consultations and preparatory
works have been left unsolved, while the approach advanced in the CDSM
Directive is destined to trigger additional questions. It needs to be clarified, for
instance, what the relationship between mandatory and optional exceptions should
be when their scope, concepts and definitions overlap; what the role of the three-
step-test vis-à-vis mandatory exceptions should be; and whether the Deckmyn
doctrine can operate as it is vis-à-vis mandatory exceptions – requiring also the
disapplication of an exception should this be needed to protect a fundamental right.
The road towards an EU copyright code which could finally tackle most of these
challenges is still long, and the European Court of Justice will be surely called to
intervene repeatedly on such matters. Yet, the steps recently made towards a more
consistent, certain and balanced system of exceptions have been remarkable, and
bode well for what the future of EU copyright harmonisation may hold.
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A new era for EU copyright exceptions and limitations?

Judicial flexibility and legislative discretion in the aftermath of the

Keywords EU copyright · Exceptions · Limitations · Fundamental rights · Copyright in

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Early communications by the Commission focused on the opportunity to harmonise

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3 Exceptions and the Court of Justice: problems solved, problems created,

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3.1 Problems solved

The European Court of Justice has undoubtedly contributed to an increase in the

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The most innovative interventions, however, came in the field of fundamental

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3.2 Problems created

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Legal uncertainty is also likely to be the outcome of Deckmyn’s introduction of the

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3.3 Problems left behind

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4 Towards the CDSM Directive: the drowned and the saved

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Years later, the Commission launched a public consultation on the modernisation

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5 Copyright exceptions in the CDSM Directive

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The Directive also makes provision regarding optional InfoSoc exceptions –

6 Fundamental rights and flexibility in copyright exceptions: keeping the

Electronic copy available at: https://ssrn.com/abstract=3809214

6.1 The facts and AG Szpunar’s Opinions

In Funke Medien the plaintiff, owner of the website of a German newspaper

Electronic copy available at: https://ssrn.com/abstract=3809214

Electronic copy available at: https://ssrn.com/abstract=3809214

Electronic copy available at: https://ssrn.com/abstract=3809214

Electronic copy available at: https://ssrn.com/abstract=3809214

6.2 The Grand Chamber’s decisions

In contrast to exclusive rights, which are fully harmonised by the InfoSoc

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The interplay between exceptions and fundamental rights is depicted as a

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6.3 Taking stocks and looking ahead

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The boundaries of Drittwirkung in EU copyright law have been redesigned by