Сontractual overide of copyright exceptions

Abstract

With the introduction 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, the European legislator tried, as part of its proclaimed goal to make copyright exceptions and limitations mandatory and uniform, to grant certain exceptions imperative status. Article 7 of the Directive states that all contractual provisions contrary to some of the exceptions provided for therein are not enforceable. Thus, the Directive explicitly prohibits the possibility of those specific exceptions being overridden by contractual clauses to the contrary. However, this unambiguous goal has been compromised by the numerous trade-offs in favour of stakeholders’ interests in this area. For some of the exceptions, the imperative nature of the provision has been declared, but subsequently completely derogated from. The imperative mechanism can now be overridden by the mere availability of certain licenses. This development shows the EU legislator’s failure to reform andmodernize this subject-matter using straightforward legislative technique and imposing consistent rules based on general principles.