Last week, COMMUNIA hosted a Salon on the upcoming review of the EU Copyright Directive in the Digital Single Market (DSM Directive). The event, moderated by Paul Keller, brought together representatives from the European Commission and civil society to discuss how the Directive has been implemented across the EU and what lessons can be drawn ahead of the Commission’s review process. The recording is now available.
The Commission’s review of the DSM Directive is underway
Sabina Tsakova, Deputy Head of Unit at the Copyright Unit of DG CONNECT, opened the discussion with an overview of the European Commission’s ongoing review of the DSM Directive. She explained that the Commission has now formally started the evaluation process, which aims to assess the practical impact, effectiveness and continued relevance of the Directive in today’s rapidly changing digital environment. Rather than focusing on Member States’ compliance with the DSM Directive, the Commission intends to gather evidence about how the rules are functioning in practice across the copyright value chain and what experiences stakeholders have had with the various provisions introduced in 2019.
Tsakova announced that the Commission’s external contractor has now launched a public stakeholder survey, which will remain open for approximately one month and forms a central part of the evidence-gathering process. In addition to consultations with Member States and stakeholder interviews, the contractor is also preparing country fiches, as well as case studies focusing particularly on the provisions in Title III of the Directive, including the press publishers’ right, Article 17 and the remuneration framework for authors and performers. Tsakova also referred to Executive Vice-President Henna Virkkunen’s recent announcement that the Commission will examine whether the copyright framework remains fit for purpose in light of technological developments, including artificial intelligence. While she did not provide a timeline for when this work will be published, she noted that the Commission hopes to present it soon and that stakeholders will have the opportunity to provide feedback as part of the process.
Mapping implementation gaps and positive trends
COMMUNIA’s Legal Director Teresa Nobre presented the findings of The Post-DSM Copyright Report (available as PDF here), an extensive comparative analysis of more than 500 national provisions implementing the DSM Directive across all EU Member States. The report identifies both encouraging trends and persistent implementation gaps in areas that are particularly relevant from a public interest perspective. One of the report’s central findings is that many Member States chose to go beyond the DSM Directive’s minimum harmonisation requirements, especially in the field of research and education. In the case of text and data mining, twenty Member States now provide broader research exceptions extending beyond the mandatory TDM provisions of the DSM Directive, demonstrating growing recognition that researchers require broader rights across the full research workflow.
At the same time, the report documents significant fragmentation and legal uncertainty. Nobre highlighted recurring failures to properly protect exceptions against contractual override and technological protection measures, despite Article 7 of the DSM Directive. She also pointed to problematic national approaches to the out-of-commerce works regime, including restrictive eligibility conditions and unclear criteria for determining whether collective management organisations are “sufficiently representative.” Other areas of concern include the incomplete implementation of mandatory limitations to the press publishers’ right. The report also notes that several Member States implemented parody, caricature and pastiche safeguards only in the context of online content-sharing platforms, rather than as general user rights applicable across copyright law.
Visualising the state of copyright exceptions across Europe
Ana Lazarova of Digital Republic presented the joint project copyrightexceptions.eu, developed together with Open Future and COMMUNIA. The platform maps the implementation of copyright exceptions and limitations across all EU Member States under both the InfoSoc Directive and the DSM Directive. Lazarova explained that the project evaluates national implementations according to a detailed set of criteria, including beneficiaries, purposes of use, subject matter coverage, remuneration requirements and additional legal or technical restrictions that may hinder the exercise of user rights in practice.
Her presentation highlighted the extent to which national implementations continue to diverge despite the DSM Directive’s harmonisation objectives. In many Member States, important protections against contractual override or technological protection measures are missing entirely, while some countries have introduced additional restrictions that significantly narrow the scope of mandatory exceptions. Lazarova also drew attention to recurring omissions affecting related rights, including press publishers’ rights and sui generis database rights, which are sometimes excluded from the scope of exceptions due to incomplete legislative cross-referencing. The project aims not only to document these divergences, but also to provide an open and collaborative resource that researchers, policymakers and advocates can use to better understand how copyright exceptions operate across Europe in practice.
