On the need to protect copyright exceptions from contractual interference

Combat des polonais contre les russes
Protect Copyright exceptions from harm.

One of the positive points contained in the recently adopted Reda report that we have not discussed here before is the freedom to exercise copyright exception and limitations (although this is not a new topic – see Treaty Proposal on Limitations and Exceptions for Libraries and Archives). In paragraph 61 of the report the members of the European Parliament stress that ‘the effective exercise of exceptions or limitations, and access to content that is not subject to copyright or related rights protection, should not be waived by contract or contractual terms’.

The Directive 2001/29/EC (so-called the Infosoc Directive) introduced 21 exceptions and limitations to copyright, making only one of them mandatory (transient or incidental acts of reproduction), and leaving the remaining 20 optional for national legislators to implement.

This has led to cherry-picking by countries in their implementation of the optional exceptions and limitations, and it has created a situation where users in different EU member states have different rights when it comes to their interaction with copyright-protected materials. Even worse is the fact that the existing legislation does not contain rules that protect users from a contractual or technological override of the exceptions and limitations available within current EU system. As a result, rightsholders and intermediaries are essentially able to limit or modify exceptions or limitations, thus reducing the potential benefit of the copyright exceptions for the public. Continue reading