Today we are releasing The Post-DSM Copyright Report (available as PDF here). This report analyses how Member States have implemented key user rights provisions of the DSM Directive: text and data mining rights, education rights, cultural heritage rights, the Public Domain safeguard, protections against overrides, limits to the press publishers’ right, and user rights safeguards in online content-sharing services.
By examining national implementation across the European Union, the report identifies emerging trends and implementation gaps that are relevant for the ongoing review of the Directive.
Research and education rights
In the area of research, our analysis shows that most Member States recognise that the mandatory text and data mining (TDM) exception introduced by Article 3 does not fully capture the needs of contemporary research practices. A clear majority therefore complement it with broader national scientific research exceptions covering a wider range of activities, including the ability to share research materials for purposes of collaboration and verification of results. These approaches demonstrate that more comprehensive protection of scientific research is both legally and politically feasible. The DSM review should therefore reassess how EU law can better support the full research lifecycle.
The report also identifies targeted national solutions for addressing legal uncertainty in the field of AI development and strengthening the effectiveness of research rights. Despite efforts at EU level to clarify the relationship between TDM and AI training, uncertainty within the research community, combined with restrictive licensing practices, continues to have a chilling effect on researchers. By explicitly linking TDM to AI development, the Italian implementation provides a valuable model for addressing this issue. Slovenia and Bulgaria, on the other hand, demonstrate how two distinct layers of technological control – security measures and technological protection measures – can be addressed through time-bound access mechanisms. Together, they offer complementary models to ensure the practical usability of the TDM exception in the face of technical access controls.
The comparative evaluation of the national copyright frameworks for education, in its turn, reveals that the mandatory digital education exception introduced by Article 5 provides only a partial solution to the needs of the education community. Many Member States maintain or introduce broader education exceptions covering non-digital teaching activities or additional categories of users, providing concrete models for EU law to better protect educational uses beyond narrowly defined digital teaching activities and formal educational establishments.
Cultural heritage rights and Public Domain safeguard
The implementation of the out-of-commerce works (OOCW) regime under Article 8 shows significant divergences across the Union. Our analysis illustrates the variety of national criteria to determine the representativeness of collective management organisations. It also reveals that the pathway to OOCW qualification differs significantly due to a variety of time-based rules, which in most cases condition or delay eligibility regardless of actual market absence, increasing the evidentiary burden placed on cultural heritage institutions. The DSM review should thus consider introducing temporal rules that enhance legal certainty rather than merely postponing eligibility. The review should also explore other legal mechanisms to support large-scale OOCW digitisation, considering that cultural heritage institutions are not registering OOCW in most Member States under the current system. A possible way forward would be to introduce an exception that applies in the absence of adequate licences that meet the needs and specificities of cultural heritage institutions.
On the positive side, our report confirms broad recognition of the importance of preventing the re-appropriation of Public Domain works through digitisation: Article 14 has been widely implemented even where its immediate practical impact is limited. The DSM review could therefore consider extending the logic of this provision to other categories of works beyond visual art where similar risks of re-appropriation arise. The review should also aim to clarify the relationship between Article 14 and cultural heritage laws, as in some jurisdictions this legislation continues to restrict the reuse of faithful reproductions of Public Domain works, creating legal uncertainty and potentially undermining the effectiveness of the safeguard.
Protections against overrides
Our assessment shows that the protections against contractual and technological overrides introduced by Article 7 have not been implemented consistently across the Union. While a majority of Member States provide protection against contractual override, not all categories of protected subject matter benefit from this protection, and national laws rely on different legal formulations with varying degrees of effectiveness. These differences affect the extent to which contracts can be used to circumvent mandatory exceptions, particularly in the presence of choice of law agreements.
The protection against technological overrides is even more uneven. In several Member States, users are only partially protected, or not protected at all, from the restrictive effects of technological protection measures. In addition, the continued application of the on-demand limitation significantly weakens the effectiveness of these safeguards in digital environments.
Limits to the Press Publisher’s right
The report reveals that the introduction of the press publishers’ right under Article 15 has not been matched by consistent implementation of the mandatory limits intended to contain its scope. Despite the largely prescriptive nature of the Directive, a significant number of Member States have failed to fully implement these safeguards. In addition, some jurisdictions have chosen not to apply existing copyright exceptions to the new right, resulting in a broader scope of protection for press publishers than for other rightholders and further contributing to fragmentation across the internal market.
User rights safeguards in online content-sharing services
The implementation of user rights safeguards under Article 17 reveals a predominantly minimalist approach across the Union. Most Member States have limited themselves to restating the Directive’s requirement that lawful uploads must not be blocked, leaving the practical balancing of copyright enforcement and freedom of expression largely to platforms and courts. While a small number of jurisdictions have introduced stronger safeguards – such as ex ante protections against overblocking, transparency obligations, and mechanisms to address abusive claims – these remain the exception. As a result, the level of protection for lawful user expression continues to vary across Member States.
Finally, our comparative analysis of the implementation of the mandatory exception for caricature, parody and pastiche shows that some Member States limit the exception to uses on online content-sharing service providers, while others exclude certain purposes. This perpetuates fragmentation and undermines the harmonising intent of the Directive. The DSM review should therefore clarify and strengthen this exception, ensuring consistent protection for lawful expressive practices across platforms and Member States.
Taken together, these findings reveal a recurring pattern in the implementation of the DSM Directive. In several areas, Member States have demonstrated that stronger and more balanced protections for research, education, preservation and user expression are both legally feasible and already functioning in practice. At the same time, the comparative analysis shows that gaps, inconsistencies, and uneven national implementation continue to undermine the Directive’s harmonising objectives. The ongoing DSM review therefore provides a crucial opportunity not only to correct implementation shortcomings, but also to build on emerging national best practices and strengthen the protection of user rights across the Union.