The rationale behind the EU exceptions and limitations regime is to allow people to use copyrighted works for a specific purpose as long as it complies with the internationally recognised principle of the Three Step Test. The current exceptions and limitations regime is a positive, flexible, useful, and appropriate one; it takes into account the different needs and traditions in EU Member States and allows for an adequate flexibility for Member States to adopt or adapt their regime to local and cultural traditions. The Three Step Test allows exemptions in special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightsholder.
In light of this, ICMP believes that the way exceptions and limitations are defined in the EU Copyright Directive provides a good system for rightsholders and users taking the needs of both into account. These exceptions and limitations have shown to be sufficiently flexible to meet the demands of the move from the analogue to the digital world. Therefore, extending the scope of existing exceptions is not the way forward to provide effective and quicker access to those that require it. As a result, an extension of the scope of the current exceptions is undesired.
When considering the need to add or remove exceptions and limitations from the existing list, a distinction should be made between what is in the public interest and what is free riding. Calls from certain stakeholders for a re-opening of the Directive and a re-examination of its list of exceptions often hide the intention to weaken the copyright framework so that they can develop new commercial services for free at the cost of the creative and economical efforts of rightsholders. It should not be forgotten that with technological developments, piracy has increased significantly. Therefore any exceptions and limitations must take into account the further increased risks that rightsholders face, particularly in the absence of adequate collaboration with Internet Service Providers (ISPs) who often hide behind existing limitations of liability and data protection rules.
Almost all relevant and necessary limitations and exceptions to copyright, as outlined in the EU’s copyright framework, have been adopted by the majority of EU Member States. The optional nature of most existing exceptions reflects the diversity and richness of Europe’s cultures and national cultural policies. Some Member States have not implemented all the exceptions due to national cultural specificities which in turn promotes European cultural diversity. Instead of making all exceptions and limitations in the list mandatory for all Member States, the focus should be on the consistent application of exceptions by EU Member States. The territoriality of exceptions and limitations does not distort or create discrepancies in the Single Market.
In our view, any changes to the existing exceptions and limitations regime in the EU should only be made after taking due consideration of the following factors:
- assessment of the impact of each exception on the Internal Market
- whether the proposed policy is supported by robust economic evidence
- whether the potential changes are compatible with international copyright law and the Three Step Test