Limitations to Copyright in the Digital Age, Safeguards for User’s Rights, Creativity and Author’s Remuneration Interests

Copyright limitations are pivotal for using works or other subject matter protected by copyright, ensuring democratic participation and securing free spaces for creativity. The EU’s approach to enabling digital creativity and innovation using free spaces in copyright law has traditionally been a restrictive one. As opposed to the exclusive right that rightholders can rely on to prevent uses of copyrighted works, limitations are not fully harmonized in the European Union (EU). The limitations expressly provided in the acquis constitute an exhaustive list to which- at least according to the latest CJEU case law- Member States cannot add. Furthermore, the Court of Justice of the European Union (CJEU) has long tended to interpret limitations narrowly. Since the adoption of Directive 2001/29/EC in 2001, this has resulted in legal uncertainty and prevented limitations from adapting reasonably to new technological developments. To overcome obstacles to creativity and innovation posed by this situation, it is suggested to reshape and reinterpret the EU’s approach to limitations by relying on new dogmatic approaches that take due consideration of the EU’s constitutional framework as it has developed in a digital context. Although the CJEU has more recently relaxed its stance by allowing for a more flexible, purposeful interpretation of limitations, specifically in the light of fundamental rights, these breathing spaces for innovation and creativity remain frozen in time. The adoption of Directive (EU) 790/2019 has only modestly improved the balance between exclusive rights and limitations by introducing new mandatory exceptions and limitations. While legislative reform has not yielded the desired results, several proposals have been made to induce flexibility into the existing framework for limitations in Europe and to develop transactional models to facilitate uses of protected works and subject matter without prior authorizations. Scholars in particular have tried to address the imbalance between exclusive rights and permitted uses in order to create flexibility within the acquis, by proposing either the introduction of an open norm instead or in addition to the exhaustive list of limitations, or a reinterpretation of the so-called “three-step test”. Going beyond these proposals, it can also be conceived to enable online and digital uses through mandatory and extended collective management solutions, by making certain uses of protected works subject to statutory remuneration directly benefiting creators, or more generally by developing new regulation models based on remunerated non-exclusive uses to enable creativity in the digital environment. All these approaches are supported, it is argued here, by arguments rooted in the emerging theory of ‘digital constitutionalism.’ More concretely, reliance on fundamental rights as constitutional imperatives can generate powerful arguments for a recalibration of limitations, in particularly by ensuring the realisation of new EU policy-based themes such as sustainability in the knowledge society or the emerging ‘right to research’. These approaches can be used to dynamically move towards a more open and flexible EU system for creativity that better aligns with the justifications of copyright law in a digital environment, thus combining the imperative of access to culture and the enhancement creativity whilst ensuring fair remuneration for creators and creative outputs.