EU Copyright Implementation

Peter Cichorius

Making the best out of the Copyright in the Digital Single Market Directive: An overview of implementation opportunities and risks

Paul Keller

Introduction

This document provides a high level analysis of the risks and opportunities created by the National implementations of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market (hereafter “DSM Directive”). This Directive was adopted in april 2019 and Member States have until 6 June 2021 to implement the provisions contained in the Directive.

This analysis focuses on the provisions that are directly relevant to the education, research and cultural heritage sectors. This includes exceptions and limitations to copyright that have these institutions as beneficiaries and which are discussed in Part 1. Part 2 of the analysis focussed on two other provisions that are either relevant to public interest organisations (Article 14 on the protection of the public domain) or that have been especially controversial and are likely to have a significant impact on how the public interacts with copyrighted works online (Article 17). The final section of this document summarizes the analysis and the recommendations made throughout the analysis.

For each of the provisions discussed in this Directive a summary of the provision and its context is provided. This is followed by a list of issues where implementation by the Member states can significantly impact the scope and usefulness of the provision in question. It is important to note that this document does not provide implementation guidelines [1]Such guidelines are currently being worked on by a number of civil society organisations including COMMUNIA and library organisations such as IFLA, EBLIDA and LIBER., but rather identifies issues that are relevant for ensuring that implementations of the Directive provide maximum benefit to public interest organisations and the public at large.

This also means that this analysis has been authored with a specific objective in mind: to leverage the implementation of the DSM Directive to maximise the room that institutions in the education, research and cultural heritage sectors (and their users) have when operating in the digital environment. Given this objective this analysis does not limit itself to a literal transposition of the Directive, but also identifies opportunities for member states to go beyond what the Directive requires them to do.

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↑1 Such guidelines are currently being worked on by a number of civil society organisations including COMMUNIA and library organisations such as IFLA, EBLIDA and LIBER.
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Implementing the DSM Directive

Study – Paul Keller

The EU Member States [1]In this document Member States is understood to include the EEA countries that will also need to implement the provisions contained in the Directive. have 2 years to implement the provisions laid down in the DSM Directive. The Directive supplements a number of existing EU Directives in the field of copyright law, most importantly Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (hereafter “InfoSoc Directive”).member states have traditionally implemented the EU Directives in the field of copyright in various ways. Some unified acts that cover all types of rights while others have different acts for different types of rights (copyright, related rights, database rights, ect). As a result some member states may implement the Directive all at once, while others may implement different parts of the Directive separately [2]France for example has already implemented Article 15 of the Directive in a separate law that came into force on the 24th of october 2019 (“LOI n° 2019-775 du 24 juillet 2019 tendant à … Continue reading). It can be expected that most member states will implement the provisions contained in the Directive by adapting and expanding existing legislation (most importantly their copyright acts). This also means that legislative processes aimed at implementing the Directive in the Member states provide an opportunity to include additional changes to the existing national copyright rules (as long as such changes stay within the legislative scope that is provided by the InfoSoc Directive). This fact is explicitly acknowledged by Article 25 of the Directive.

One of the main legislative objectives of the DSM Directive was to further harmonize the EU copyright rules between the member states. While the effort to harmonize stayed well behind what civil society organisations, academics and progressve politicians have advocated for, the objective to harmonize is reflected throughout the Directive. Most of the provisions in the Directive are mandatory for member states to implement [3]The only optional provision is Article 12 which deals with Extended Collective Licensing and was included during the trilogue negotiations at the request of the Council. and there is relatively little room for member states to make substantive choices or deviate from the text of the provisions. However there are still substantive choices that can be made by the Member States when implementing the Directive.

Another (relatively novel) element of the Directive is that it leaves some specific implementation questions to be determined by stakeholder through a number of stakeholder dialogues both on the European (Article 17) and on the Member State level (Articles 3 and 10). This means that stakeholders such as organisations from the education, research and cultural heritage sectors have some ability to directly participate in shaping elements of the national Implementations.

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↑1 In this document Member States is understood to include the EEA countries that will also need to implement the provisions contained in the Directive.
↑2 France for example has already implemented Article 15 of the Directive in a separate law that came into force on the 24th of october 2019 (“LOI n° 2019-775 du 24 juillet 2019 tendant à créer un droit voisin au profit des agences de presse et des éditeurs de presse”
↑3 The only optional provision is Article 12 which deals with Extended Collective Licensing and was included during the trilogue negotiations at the request of the Council.
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Part 1: Exceptions and Limitations

Study – Paul Keller

Title II of the DSM Directive introduces a number of new and mandatory exceptions and limitations to copyright. This concerns exceptions to enable Text and Data Mining (TDM) of copyrighted works (Articles 3 and 4), an exception allowing the use of protected works in digital and cross-border teaching activities (Article 5) and an exception allowing the preservation of cultural heritage works by cultural heritage institutions (Article 6). In addition, Article 8 (2) of the Directive also introduces a mandatory exception that allows cultural heritage institutions to make Out Of Commerce Works (OCCW) contained in their collections available online unless there is a way to secure permission to do so via collective licensing. In total the Directive introduces 5 new mandatory exceptions that will need to be implemented in each Member State. The Commission’s original proposal only contained three of these exceptions and the addition of two additional exceptions benefitting research and cultural heritage institutions should be seen as a success of the advocacy efforts by these sectors.

In a clear departure from the InfSoc Directive all of these new exceptions are mandatory (they have to be implemented by the Member States) and (with the exception of the OCCW exception) they are also protected from contractual and technological overrides. This reflects the legislators motivation to focus on cross border uses in the digital environment.

Member states will need to implement these exceptions in addition to already existing national exceptions that are based on the InfoSoc Directive and the Orphan Works Directive. The 2001 Orphan works Directive contained 20 optional exceptions and left it up to Member States to decide which of these they wanted to implement in their national laws. As a result there are significant variations between the Member States when it comes to the implementation of the InfoSoc exceptions [1]See copyrightexceptions.eu for an overview. This website created by the Dutch NGO Kennisland in 2014 tracks the implementation of the InfoSoc exception for each member state. It is currently not … Continue reading). While the DSM Directive does very little [2]Article 17(7) make the existing Parody and Quotation exceptions de facto mandatory for all Member States. This is discussed in more detail in Part 2 of this analysis to remedy the resulting patchwork nature of user rights in the European Union, the Member States can – and should – use the national implementation of the DSM Directive to implement additional InfoSoc exceptions which would contribute to further harmonization. While the Directive does not require them to do this, Article 25 of the Directive makes it explicit that nothing in the DSM Directive prevents them from doing so.

The exceptions introduced by the DSM Directive, together with the possibility to implement more of the existing InfoSoc exceptions constitute a substantial improvement of the position of research, educational and cultural heritage institutions and by extension the millions of their users.

In the following sections each of these exceptions is examined in greater detail.

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↑1 See copyrightexceptions.eu for an overview. This website created by the Dutch NGO Kennisland in 2014 tracks the implementation of the InfoSoc exception for each member state. It is currently not actively maintained and some of the information is likely outdated, but it is still illustrative of the patchwork nature rights that users enjoy in the EU (Disclosure: The author of this analysis was Director of Kennisland at the time when the site was launched and in that position initiated the website.
↑2 Article 17(7) make the existing Parody and Quotation exceptions de facto mandatory for all Member States. This is discussed in more detail in Part 2 of this analysis
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Article 3 and 4 on Text and Data Mining

Study – Paul Keller

Big data analytics is increasingly ubiquitous, and is used by many different players from large companies, individuals through to the research sector. The core of Big data analytics, which is also one of the fundamental facets of Artificial Intelligence (AI), is the ability for computers to analyse and extract information from structured and unstructured datasets. This process is often referred to as “Text and Data Mining” in a legal context, or more widely as “data analytics”.

Given the ubiquity of Text and Data Mining, particularly in the US (which shows significantly higher exploitation levels of data that in Europe), for reasons of international competitiveness the Commission decided in 2016 to introduce a new copyright exception allowing EU based research organisations to engage in Text and Data Mining for scientific purposes without having to obtain permission from rightsholders to do so. During the legislative discussion of the DSM Directive proposal an additional exception allowing Text and Data Mining by everyone under certain conditions was added to the text of the Directive [1]The additional exception was added in response to amendments proposed by both the Council and the European Parliament..

Article 2.2 of the DSM Directive defines Text and Data Mining (TDM) as “any automated
analytical technique aimed at analysing text and data in digital form in order to generate
information which includes but is not limited to patterns, trends and correlations.”

Article 3 (Text and Data Mining for the Purposes of Scientific Research) requires member states to introduce a mandatory exception to copyright [2]In this document the term term copyright(s) is used to mean both copyright and related (neighbouring) rights in copyright law, including sui generis database rights. in their national laws for the purposes of data analytics. This new exception gives researchers who have legal access to the open web as well as the collections of universities, libraries, archives and other cultural heritage organisations across the EU, the freedom to engage in Text and Data Mining for scientific purposes without requiring permission from rightsholders. Member states are encouraged to meet with research organisations, cultural heritage organisations and rightsholders to discuss appropriate security measures relating to the exercise of the exception. The right to enjoy this new exception cannot be removed by either contract or by technical protection measures.

Article 4 (General exception for Text and Data Mining) requires member states to introduce a mandatory exception to copyright in their national laws for the purposes of Text and Data Mining by anyone who wishes to mine materials subject to copyright for any purpose. Rightsholders however can prevent data mining under this exception if they so choose.

The main difference between the two exceptions is that the research exception (Article 3) allows researchers affiliated to public interest organisations to keep a copy of the information they mined, and this cannot be prevented by contract or technical protection measures. The second exception (Article 4), which can be enjoyed by anyone, only allows Text and Data Mining to be performed on content for which rights holders have not not expressly reserved their this right.

These two new mandatory exceptions have the potential to support big data analytics and artificial intelligence (AI) in Europe. The exceptions are relatively straightforward. However a poor of a number of important details into national law could severely hamper the ability of beneficiaries of the exceptions to undertake Text and Data Mining. This concerns the following issues:

Rapid TPM removal

Technical Protection Measures [3]Technical protection measures (TPMs) refer to locks, marks or other tools (e.g. password control systems, payment systems, time access controls, encryption measures, captcha technology, etc.) … Continue reading (short TPMs not to be confused with TDM) preventing Text and Data Mining remain an area of very real outstanding concern. This can range from basic technical features such as captcha technology that can frustrate mining, through to more sophisticated technical protection measures. For example scholarly publishers use systems that not infrequently end up blocking access to databases that universities have paid a subscription for. Often what publishers are doing is monitoring download rates and if their systems are alerted to atypical download / request / load rates they may assume that part of the university technical infrastructure has been compromised and will cut off access. Both TDM exceptions are covered by Article 7, which specifies that Member States must not give legal protection to Technological Protection Measures (TPMs) that would prevent beneficiaries from exercising their rights under these exceptions and requires rightholders to remove TPMs where they conflict with the exercise of the rights granted under these exceptions. Unfortunately the Directive provides little clarity about the process to be followed in order to remove these.

The Directive underlines that rightholders should, first of all, be given the possibility to remove technological protection measures that prevent enjoyment of the exception. This could be problematic if it leads to long delays for researchers engaging in TDM, with a need to apply for voluntary changes each time a TPM is encountered. It will be important to ensure that such a process is quick and simple in order to ensure that beneficiaries of the TDM exceptions do not face unreasonable delays. To achieve this goal, Member States should stipulate that TPMs have to be removed by the rightholders within 72 hours after a request (See also the separate section on Article 7 below).

Data storage

The Directive refers to the secure storage of content used for Text and Data Mining. Despite efforts by rightholders during the discussions in the European parliament to oblige the deletion of datasets created in the course of Text and Data Mining (which runs entirely contrary to all scientific practice) Article 3(2) only refers to storing datasets “with an appropriate level of security”. It does not prescribe in any detail what this should mean. Recital 15 however suggests Member States discuss it, including using trusted intermediaries for storage. From the perspective of research institutions and researchers it would be inappropriate for any detailed or technological expression of security measures to be imposed on researchers. Member States should refrain from imposing any specific or more onerous storage obligations than common sense dictates on these institutions.

Robots.txt

Article 4(3) of the Directive specifies that rightholders who want to exclude their works from the scope of the general TDM exception can do so by expressly reserving their rights “in an appropriate manner, such as machine-readable means in the case of content made publicly available online”. The requirement that such reservations are made in a machine readable way is welcome, but insufficient. For this provision to be effective (both for rightholders wishing to reserve their rights and for beneficiaries wishing to respect such reservations) such reservations need to be made in a standardized way. While the text of the Directive leaves the further implementation of this provision to the individual member states, a standardized way of expressing the rights reservation must be established on the European level to prevent the risk that Member States adopt different standards. This means that the European Commission must actively work with all relevant stakeholders and the Member States to determine a standard for machine readable rights reservations. The most obvious candidate for this is the Robots Exclusion Standard which is adhered to by the largest Text and Data Mining operations on the internet, including Google, Bing, Baidu, DuckDuckGo, Yahoo!, and Yandex. Due to the search engines commitment to follow these rules, nearly all websites on the planet are following the standard to control what can be mined by their bots and can easily be used to express the type of reservation foreseen in Article 4(3).

Implementation outlook

Big data analytics is an activity with a substantial economic impact and during the legislative procedure the (scientific) publishing sector has aggressively sought to protect its economic interests in this area. While the issues discussed above are mainly of a technical nature, they will have a big impact on the usefulness of the TDM provisions introduced by the Directive. It is therefore likely that publishers and other rightholders will seek to influence the national implementation in these areas and as a result the academic research community will need to closely monitor the national implementations and seek representation in the stakeholder consultations foreseen by Article 3(4).

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↑1 The additional exception was added in response to amendments proposed by both the Council and the European Parliament.
↑2 In this document the term term copyright(s) is used to mean both copyright and related (neighbouring) rights in copyright law, including sui generis database rights.
↑3 Technical protection measures (TPMs) refer to locks, marks or other tools (e.g. password control systems, payment systems, time access controls, encryption measures, captcha technology, etc.) that control access to and/or what a user can do with a digital work, such as a book, video or any another file type.
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Article 5 online education

Study – Paul Keller

Currently, the educational exceptions do not work the same way in every EU country. This is because the existing InfoSoc Directive only gives Member States the option to implement in their national laws a copyright exception or limitation for educational purposes (Article 5(3)(a) InfoSoc Directive). Because this is an option, and not an obligation, some EU countries simply have no educational exceptions, while others have only narrow exceptions that do not align with the daily needs of teachers (e.g. where a teacher would be forbidden from showing a Youtube video in class) and students (e.g. where students cannot include more than a snippet of an image in their assignments).

The fact that the existing educational exceptions are so different from country to country creates legal uncertainty for teachers, promotes inequality among students and severely limits digital and online activities as well as cross-border collaboration. The DSM Directive attempts to harmonize this fragmented legal landscape, by requiring Member States to implement in their laws the same minimum set of rights for digital and cross-border teaching activities.

Article 5 of the Directive makes it mandatory for Member States to introduce in their national laws an educational exception giving educators and learners at educational institutions the freedom to use copyrighted materials in digital and cross border teaching and learning activities.

This mandatory educational exception allows educators and learners, in a formal education setting, to make certain digital uses (e.g. scanning, uploading, streaming) of copyrighted materials (e.g. images, text, video) without having to ask permission to copyright owners beforehand, provided that they respect the conditions defined in Article 5.

Unfortunately Article 5 also contains three optional provisions that allow Member States to restrict the benefits created by the exception via their national implementations:

  • Recital 21 has the potential to fragment the exception across the EU, by introducing the option that each country can define the extent to which a piece of content can be used (e.g. 5% of a textbook or video in country A, 15 % of a textbook or video in country B); and
  • Article 5(2) provides Member States with the option to take away the educators and the learners right to use a certain piece of content under the exception as soon as copyright owners start selling licences for said content.
  • Article 5(4) provides Member States with the option to “provide for fair compensation for rightholders” for the uses made under the exception

As a result Article 5 leaves a lot of room for Member States to implement the exception. From the perspective of educational institutions a full implementation that does not make use of any of the above mentioned harmful options would be the minimum acceptable implementation scenario. Member states who want to create maximum space for educational uses of copyrighted works should also consider making full use of the policy space offered under the existing educational exception from the ecommerce Directive.

No Licensing override

Article 5(2) provides Member States with the option to implement the exception in such a way that it does not apply whenever there are suitable licenses available in the market that authorise the same uses as those allowed under the license. This would result in a situation where right holders can override the exception by offering licenses to educational institutions. This means that a teacher’s or student’s ability to benefit from the exception can be taken away by unilateral actions of rightholders, negating the effectiveness of the exception. Users will be denied the right to make uses under the exception, and would be forced to buy licenses for those uses. The licenses might not be subject to negotiation, might be disadvantageous for education institutions in terms of added costs, added bureaucracy, surveillance or uncertaintyabout the conditions attached to licenses. Given this it must be a priority to prevent all Member States from implementing the licensing override option in their national laws. This is not only important in the context of the educational activities covered by the license but also with an eye to the overall copyright system. User rights should not be conditional on the commercial motivations of rightholders and the licensing override mechanism introduced by Article 5(2) is setting a very dangerous precedent here.

No quantitative limitations

As a rule, an educational exception only allows the uses of parts of works, but if it is an image or a short poem, then it can be used in its entirety. From the perspective of educational institutions it is important to let practice (and in cases of conflict: court decisions) define what is right. The 3-step test enshrined in the InfoSoc Directive gives the flexibility users need in any given situation, while protecting the interests of copyright owners. Defining percentages (e.g. 15 % of a book) in the national implementations will lead to unfair situations. Moreover, if the Member States decide to make use of this option, and each defines different percentages, there is a big risk that we will end up with different rules in different member states creating the same fragmented landscape that currently prevents online and cross-border education in the EU.

No compensation

An exception is not a free pass to use copyrighted content in ways that cause unjustified harm to the copyright owners. In General uses made under an education exception cause minimal to no harm, and as a result the justification for compensation is relatively weak. This is reflected by the fact that currently, 18 EU Member States have education exceptions that are completely or largely unremunerated. It is essential that these Member State continue to allow the new uses for free. For countries where the existing educational exceptions are subject to compensation, and where there is insufficient political will to make the new exceptions uncompensated it will be important that the administrative burden of such compensation schemes is minimized. This means that they should be negotiated on a flat rate and not on a per use basis and they should be collectively administered. In all scenarios it is of paramount importance that copyr ight owners can continue to issue free licenses (such as the Creative Commons licenses) which are an important element of the growing use of Open Educational Resour ces in educational settings by educational institutions throughout the EU.

Implementation outlook

The presence of these three optional elements in Article 5 makes it very likely that Article 5 will be subject to intense discussions and lobbying during the implementation in the Member States. Article 5 provides Member States with the most room for manoeuvre of all the provisions introduced by the DSM Directive. This is partially due to the fact that practices related to the use of copyrighted content in educational settings substantially vary across the Member States. In the best case the optional elements in Article 5 will be used to tailor the new exception to work with existing national practices. In the worst case these optional elements will be used to weaken the position of educational institutions to the benefit of rightholders. Given the fundamental importance of education for our societies, it will be important to make sure that this does happen. The best way to achieve this goal will be to empower educational stakeholders to make their voice heard in national implementation processes, for national political actors to pay close attention to this element in national implementation processes and for the European Parliament to closely monitor the implementation of the education exception in all Member States. [1]At the time of writing of this report the only Member State with a published proposal for an implementation law were the Netherlands. The proposed law does not make use of the three problematic … Continue reading

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↑1 At the time of writing of this report the only Member State with a published proposal for an implementation law were the Netherlands. The proposed law does not make use of the three problematic options discussed above and proposes to implement the new exception as an expansion of the scope of the existing exception. In doing so the Netherlands provide a template that other MS should follow as much as possible.
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Article 6 preservation

Study – Paul Keller

Current EU law gives Member States the option to introduce an exception allowing for ‘specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage’.

In line with this, many countries do clearly include preservation copying among their exceptions to copyright (see a full list at CopyrightExceptions.eu), either explicitly in the form of a preservation exception, or as part of a broader exception for libraries and other cultural heritage institutions, similar to the text of EU law. However, it is still common for there to be implicit or explicit limits on the way in which copies are made, the formats of the original or new version, and on the number of copies made. These all serve to restrict the possibility to use digitisation – i.e. the creation of digital copies and their appropriate storage – to achieve the mission of cultural heritage institutions. A further complication linked to digitisation is the fact that the equipment necessary for this is often expensive, and given levels of use, it does not necessarily make sense for each cultural heritage institution to have its own. In response, it is common to form partnerships or networks – including across borders – which allow for a more effective use of public money, as well as a better outcome (i.e. more works preserved for the future). Similarly, once a copy is made, it may also make sense to store copies in servers across a number of countries in order to minimise the risk of permanent loss.

However, any cross-border applications of exceptions and limitations have, in the past, been hampered by inconsistency between laws, and uncertainty as to their legality in general. The new mandatory preservation exception introduced by the DSM Directive addresses this issue.

Article 6 of the Directive requires Member States to introduce an exception to copyright and related rights in their national laws in order to allow cultural heritage institutions (CHIs) to make reproductions of works that they have in their collections for preservation purposes.

This not only represents a step forwards in terms of the strength of the exception (rather than Member States being given the option of introducing an exception, this is now mandatory), but also ensures that libraries, archives and museums should not face any unnecessary restrictions on how they carry out this copying. Moreover, it makes it clear that it is legal to work across borders in order to carry out preservation, for example through networks or the sharing of equipment.

In the implementation process, it will nonetheless be necessary to ensure that cultural heritage institutions face minimal restrictions on the type of works that can be copied or by technical protection measures applied to the works that need to be preserved.

During the legislative proceedings that led to the Directive, cultural heritage institutions had argued that the scope of the exception should be expanded to allow cultural heritage institutions to make reproductions for any internal uses related to their public mission. While the final text of the Directive does not reflect this desire Member States should keep in mind that there are many legitimate reasons other than preservation (such as for administration, cataloguing, bibliography or for insurance purposes) for CHIs to make reproductions. Member States should therefore explore possibilities to go beyond the narrow focus on preservation (see the section on Article 25 below).

In general the new exception represents a step forward for cultural heritage institution. There are however some related issues that can impact the usefulness of the exception:

Rapid TPM removal

The Preservation exception is covered by Article 7, which rules both that the terms of contracts, and technological protection measures should not prevent copying for preservation purposes.

Article 7 specifies that Member States must not give legal protection to Technological Protection Measures (TPMs) that would prevent cultural heritage institutions from exercising their rights to make reproductions under this exception. TPMs are a reality that cultural heritage institutions increasingly have to deal with and which they will encounter when making preservation copies under the exception. Unfortunately the Directive provides little clarity about the process to be followed in order to remove these.

The Directive underlines that rightholders should, first of all, be given the possibility to remove technological protection measures that prevent enjoyment of the exception. This could be problematic if it leads to long delays for cultural heritage institutions looking to carry out preservation work, with a need to apply for voluntary changes each time a TPM is encountered. It will be important to ensure that such a process is quick and simple in order to ensure that cultural heritage institutions do not face unreasonable delays. To achieve this goal, Member States should stipulate that TPMs have to be removed by the rightholders within 72 hours after a request (See also the separate section on Article 7 below).

Expansive list of works in permanent collection

One of the most important conditions of the exception is that it applies only to “works or other subject matter permanently in the collections of a cultural heritage institution”. Recital 29 clarifies that this should be understood to include situations when works or other subject matter is ‘owned or permanently held’, for example because the cultural heritage institution owns the work outright, has signed a licence agreement, has permanent custody, or holds the work under legal deposit rules. Cultural heritage institutions have identified two areas where there is some uncertainty: (1) Works that are licensed but stored on third party servers to which the institution gets access under the terms of the license. And (2) works that are held on the basis of long term loan agreements. In both cases Member States should clarify that such works are included in the scope of the Directive.

Open list of purposes

The new exception permits copying, regardless of the format or the medium of reproduction, and with the appropriate tool, means or technology, with the only rule being that any reproduction should only take place to the extent necessary for the purpose of preservation. The Recitals note digitisation as a particular example of this of preservation. During the legislative process cultural heritage institutions had argued that the exception should be expanded to cover any internal uses related to the institutions public interest mission. In this light, Member States should adopt an expansive definition of preservation to include other relevant activities such as cataloguing and bibliography. This could be based on the rationale that any type of reproduction associated with the survival of work should be permitted.

Article 25 of the new DSM Directive further allows Member States to adopt or maintain in force broader provisions which are compatible with the exceptions which are covered in the Database and InfoSoc Directives. The room provided by this provision should be used by Member States to enable other reproductions for internal and to enable web harvesting by cultural heritage institutions (see the section on Article 25 for more detail)

Implementation outlook

The new exception established by Article 6 of the Directive has been one of the least controversial elements of the proposed Directive. The language of the Article is straightforward and provides clear benefits to cultural heritage institutions and the uses authorised by the exception do not have the potential to cause any significant harm to rightholders. It is therefore unlikely that the implementation of this Article will result substantial discussions. By taking into account the issues identified above national lawmakers can maximise the benefits to cultural heritage institutions and their users.

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