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Study – Paul Keller
The provisions included in the first half of the DSM Directive significantly improve the position of the research, education and cultural heritage sectors. The new mandatory exceptions are generally straightforward and address real needs identified by these sectors. During the legislative proceedings the research and cultural heritage sectors have managed to further strengthen these provisions. The most important concerns related to the new exception are the ability of Member States to (partially) override the new education exception and a number of issues related to the complexity of the OOCWs provisions. In both cases the European Legislator should closely monitor the implementation. In the case of the Out of Commerce provisions the EU legislator can play a more active role by facilitating information exchange between Member States and by ensuring that the EUIPO portal can actively support cultural heritage institutions in making Out of Commerce Works in their collections available online.
In order to implement the DSM Directive all Member States will need to update their copyright acts. This provides an opportunity for them to implement some of the optional exceptions identified in the InfoSoc Directive. In the light of the overall objective of the Directive to further the goal of a Digital Single Market, all Member States should make sure that they have implemented the five key, public interest derived exceptions discussed above. Together with the now mandatory quotation and parody exceptions and the five new exceptions introduced by the DSM Directive this would ensure a minimum level of harmonisation of user rights across the EU.