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Study – Paul Keller

Article 7 of the Directive regulates two important issues for users: one related with the overlap between copyright exceptions and contracts, and the other related with the overlap between copyright exceptions and technical protection measures (“TPM”).

According to Article 7 (1), some of the new mandatory exceptions and limitations to copyright cannot be overridden by contract. In other words, even if a user signs a private contract whose terms attempt to limit the rights of said user to use copyrighted materials under certain copyright exceptions, such contract terms are not enforceable against the user. It does not matter what country the contract is from, or whatever country’s law the contract is in, users based in the EU can continue to enjoy the right to benefit from the exception and simply ignore any provisions in the contract which conflict with the exception.

According to Article 7 (2) second sentence, Member States have to ensure that users can access and use TPM-protected content according to some of the new mandatory exceptions. Crucially, this also applies to content acquired under contract and made available across the internet (something that was not the case under previous legislation).

It is important to note that the DSM Directive does not change the existing EU laws on TPMs, meaning that the users only have the right to require the rightsholder to provide the technical means necessary to benefit from the exceptions but not the right to remove the TPMs themselves. This means that in practice TPMs can still significantly inhibit the use of these exceptions, which is highly problematic.

Rapid TPM removal

To mitigate this problem, Member States should put in place a transparent rapid-response administrative procedure to ensure that beneficiaries of the exceptions covered by Article 7 receive the technical means to access and use TPM-protected content without undue delay (within 72 hours). To provide an incentive for rightholders to comply with such a requirement, Member States should consider allowing beneficiaries of the exceptions to circumvent TPMs to the extend needed to use the TPM protected content if the use has not been enabled 72 hours after the request. Alternatively Member States could consider to make copyright owners liable towards users if uses covered by these exceptions is not enabled within 72 hours from being requested.

Implementation outlook

The provision prohibiting contract override for the new exceptions and limitations is as clearcut as it is welcome and it leaves no discretion to Member States. The provisions dealing with TPMs are of a much more technical nature and will likely cause much more discussion during the national implementations of the Directive. While the intention of the European legislator (to shield the beneficiaries of the new exceptions from the adverse effects of TPMs) is very welcome, much will depend on the willingness of national legislators to create sufficient incentives for rightholders to remove TPMs at the request of the beneficiaries of exception.

While seemingly of a technical nature the ability to exercise the rights granted under these exceptions without interference from TPMs is extremely important for research, education and cultural heritage institutions. Given the increased digitization of collections the prevalence of TPMs must be expected to increase. Forward looking national legislators must therefore ensure that the provisions on TPM in Article 7 of the Directive are implemented in a way gives the beneficiaries of the new exceptions real leverage.