EU directives provide for a list of exceptions to rights and are at a limited level of harmonisation. In most cases, Member States are free to reflect them or not in their national legislation. This, combined with the broad formulation of many of the exceptions has resulted in rather heterogeneous implementation. An exception present in the law of a given country may not exist in a neighbouring country or be subject to very different conditions.
Furthermore, most exceptions in the EU do not have cross-border effect, i.e. a given exception will only apply in the territory of the individual Member State that decided to implement it. As a result, the use of a picture for illustration purposes in a school course allowed under an exception in country A could, for example, qualify as a copyright infringement in country B. This can create barriers and uncertainty in the single market.
Against this background, fundamental questions are, first, what is “copyright relevant” and what is not and, second, what exceptions to copyright are needed in the digital cross-border environment, and what their scope should be in light of the functioning of the markets and the public policy objectives being pursued. It is important to avoid a situation whereby certain exceptions become outdated and act as a brake on activities in the single market because of how they are formulated, differences in how they are implemented, or simply the lack of cross-border effect.
In certain cases, guidance to Member States on the implementation of the exceptions and how beneficiaries can use them safely and effectively could help improve legal certainty. If certain exceptions in the EU legal framework are to be clarified or updated, a balance should be sought between the public interest objectives pursued and the goal of an efficient system of copyright protection.
There is an important point regarding compensation related to specific exceptions. When reviewing existing rules, there will be a need to decide whether or not there is a need to provide for the compensation of right holders for uses undertaken under the exceptions and, if so, on the right mechanisms for that. A general objective should be to avoid that compensation mechanisms, when warranted, become a source of fragmentation in the single market. There will also be a need to determine those instances where exceptions should not be overridden by contractual agreements.
Some respondents to the public consultation and commentators have suggested the introduction of flexibility in the application of EU exceptions via the introduction of fair use or equivalent mechanisms. This may be problematic as the EU is made up of 28 different jurisdictions, most of them of a civil law tradition (i.e. where courts are used to applying the law and not to develop it via jurisprudence).
The key issues under this hypothetical scenario would be how to avoid courts in different Member taking very different directions, how long it would take to develop a sufficient body of precedent and, most importantly, what the effects would be in terms of legal certainty for the functioning of the national markets and of the single market. Indeed, it seems difficult to ensure adequate guidance to 28 different jurisdictions that need to work together in a single market, without a specialised European jurisdiction for copyright.