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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.