Abstract
In 2019, with Directive (EU) 2019/790 (CDSM Directive),1 the EU legislature attempted to inter alia ensure a well-functioning system for distance and cross-border teaching and learning. In its Article 5, the directive provides for a mandatory exception for the purpose of ‘illustration for teaching’ in the digital environment, initially designed as non-overridable by contract or by the application of technical protection measures. However, the employed legislative technique has resulted in a new legal norm that, in its essence, is neither mandatory nor imperative. On the one hand, the provision of Article 5 gives Member States considerable discretion to deviate from its basis in several aspects. On the other hand, it contains the option for the exception to be entirely overridden by the mere offer2 of ‘suitable’ licenses. In addition, the new provision was brought into existence notwithstanding the pre-existing educational exception under Article 5(3)(a) of Directive 2001/29/EC (the InfoSoc Directive)3 and without clear indications regarding the relationship between the two norms.
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