Abstract:

Copyright flexibilities (a term that encompasses not only exceptions, but all copyright rules such as non-voluntary or extended collective licenses, the principle of exhaustion, free and paying public domain, and the like) are tools through which legislators have traditionally struck the balance between the author’s monopoly – which is necessary to incentivize creativity – and other conflicting fundamental rights and public interest goals. Since the very first EU interventions in the field, copyright flexibilities have been left to the legislative discretion of Member States, in stark opposition with the increasingly more pervasive harmonization of exclusive rights. Despite the harmonization attempts of the Court of Justice and the change in the approach by the EU legislator, which has emphasized the importance of an effective and consistent application of balancing rules throughout the Union to achieve copyright’s social and cultural objectives and ensure the protection of users’ digital rights and freedoms, EU copyright law is still characterized by a piecemeal of national limitation and exceptions, the greatest majority of which is overridable by contract. Against this background, much has been written on the flaws in the harmonization of EU copyright exceptions, but little or no attention has been paid to assessing national convergences and divergences in the entire range of copyright balancing tools. To tackle this gap, the H2020 project reCreating Europe has conducted an unprecedented EU and cross-national mapping and assessment of legal and policy measures impacting on access to culture, looking at (a) regulatory sources, court decisions, governmental policies, practices and schemes and (b) private ordering sources, such as standardized license agreements, terms of use etc. This talk will present the interim results of this research, illustrating strengths and pitfalls of the ongoing process of modernization of copyright flexibilities in the EU, and formulating policy recommendations to address its flaws.

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