Exceptions as users’ rights?

The chapter explores possible ways of construing copyright exceptions as users’ rights within the EU legal framework. After discussing some basic principles on the legal nature of exceptions, it focuses more specifcally on EU law and the jurisprudence of the Court of Justice of the European Union (CJEU). The chapter shows that the CJEU has moved away from a strict interpretation of exceptions as “derogations” to general principles of copyright protection, toward a 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 is potentially leading to a full recognition of users’ rights, EU law is bound by the recognition of intellectual property as a fundamental right in the much controversial Article 17(2) of the EU Charter. The Court has repeatedly cautioned against an “absolutist” approach to this provision. Accordingly, the chapter argues that exceptions to copyright should be better understood as justifed “control” of the use of property, rather than forms of “dispossession” in the public interest. Against this background, the chapter examines two central provisions of the recent DSM Copyright Directive, namely the prohibition of contractual override of exceptions and the provisions on use of out-of-commerce works by cultural institutions. It concludes by clarifying the conditions upon which these provisions can be construed as strong statements in favor of users’ rights and, accordingly, achieve their intended efect of promoting certain free uses of copyright works.