The Past, Present and Future of EU Copyright Flexibilities

Abstract

Building on a wealth of studies on the strengths and pitfalls of EU harmonisation in the field of copyright exceptions and limitations, and on the state of the art of the copyright balance across the Union, the H2020 project reCreating Europe performed an unprecedented comparative mapping of EU and national legislative acts and case law regulating copyright “flexibilities” (exceptions and limitations; definition of protectable subject-matter; terms of protection; exhaustion; judicial doctrines such as fair balance and the horizontal effects of fundamental rights on copyright law; statutory licensing schemes; paying public domain et al.). On this basis, it produced national and comparative reports, grouped into 12 homogeneous categories of permitted uses. The study aimed at (a) assessing the degree of harmonisation across the EU and the impact of their territoriality and optional nature on the proper functioning of the system; (b) mapping which “uses” and “purposes” are balanced against copyright and with what results, both in the EU and in each Member State; and (c) identifying the regulatory gaps and enablers impacting on the proper functioning of copyright flexibilities across the Union. This article will provide an overview of the background, methodology (Section 2) and main results of the research, sketching the past and present of EU copyright flexibilities (Section 3). On this basis, it will provide general and specific recommendations for future reforms (Section 4).