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Maurizio Borghi “Exceptions as users’ rights in EU copyright law”

Working Paper No. 06-2020

October 2020

The paper explores possible ways of construing copyright exceptions as users’ rights within the EU legal framework. It discusses some basic principles on the legal nature of exceptions, and then focuses more specifically on EU law and the jurisprudence of the Court of Justice of the European Union (CJEU). The paper shows that the CJEU has moved away from a strict interpretation of exceptions as “derogations” to general principles of copyright protection, towards recognition of exceptions as bearing autonomous legal status. Indeed, in its recent jurisprudence, the Court has interpreted statutory exceptions and limitations both as independent sources of rights and as statements of fundamental rights recognized in the EU Charter. These include, most notably, freedom of expression and information. While the approach has the potential to lead to full recognition of users’ rights, EU law is bound by the recognition of intellectual property as a fundamental right in the highly controversial Article 17(2) of the EU Charter. The Court has repeatedly cautioned against an “absolutist” approach to this provision. Accordingly, this paper argues that exceptions to copyright should be better understood as justified “control” of the use of property, rather than forms of “dispossession” in the public interest. Against this background, two central provisions of the recent DSM Copyright Directive are examined, namely: the prohibition of contractual override and the provisions made for the use of out-of-commerce works by cultural institutions. The paper concludes by clarifying the conditions upon which these provisions can be construed as strong statements in favour of users’ rights, and thereby achieve their intention to promote certain free uses of copyright works.

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