This guide aims to familiarise readers with Article 7 of the DSM Directive, which regulates the issue of contractual and technological override of copyright exceptions and limitations. The guide was authored by Teresa Nobre and Natalia Mileszyk. It represents the views of Communia on the implementation of that provision.
For a summary of this guide please see the TL;DR version of this guide:
TL;DR Article 7: Contractual and Technological Override
Article 7 regulates two important issues for users: the overlap between copyright exceptions and contracts, and the overlap between copyright exceptions and technical protection measures (“TPM”).
According to Article 7(1), some of the new mandatory exceptions and limitations to copyright cannot be overridden by contract. In other words, even if a user signs a private contract whose terms attempt to limit the rights of said user to use copyrighted materials under certain copyright exceptions, such contract terms are not enforceable against the user. It does not matter what country the contract is from, or whatever country’s law the contract is in, users based in the EU can continue to enjoy the right to benefit from the exception and simply ignore any provisions in the contract which conflict with the exception.
According to Article 7(2) second sentence, Member States have to ensure that users can access and use TPM-protected content according to some of the new mandatory exceptions. Crucially, this also applies to content acquired under contract and made available across the internet (something that was not the case under previous legislation).
The DSM Directive does not change the existing EU laws on TPMs, meaning that the users only have the right to require the rightholder to provide the technical means necessary to benefit from the exceptions, and not to remove the TPMs themselves. This has a deterring effect and it means that, in practice, TPMs can still significantly inhibit the use of these exceptions, which is highly problematic.
Member States wanting to do no more than they are obliged to, shall (a) implement Article 7(1) and (2) second sentence with regards to the exceptions of the DSM Directive foreseen in those provisions, and (b) put in place a system to ensure that the beneficiaries of those exceptions can effectively use TPM-protected content without undue delay. Member States wanting to improve the framework for user rights in their countries, shall (a) make use of all the policy space available to them and prevent contractual overrides of all national copyright exceptions, and (b) ensure that users can circumvent TPM-protected content to the extent needed to make uses under any national copyright exceptions. The latter is the ideal scenario.
The existing EU copyright laws do not fully regulate the issue of whether copyright exceptions shall prevail over contracts. In general, freedom of contract is seen as automatically overriding law on the assumption that both sides have given their agreement to the terms. A recent decision by the CJEU (paragraphs 36 to 38 of the ruling) seems to imply that, by default, copyright exceptions shall prevail over contracts, even if there is no written law prohibiting contractual override, but the ruling is not entirely clear.
The Software Directive, the Database Directive and the Directive implementing the Marrakesh Treaty explicitly exclude the possibility of the copyright exceptions in those instruments being undermined by contracts. However, the InfoSoc Directive, which is the most important legal instrument in the field of copyright exceptions (it includes 21 potential exceptions and limitations to copyright, including quotation, parody, pastiche, etc.), does not contain any similar rules. The fact that there are no express rules in the InfoSoc Directive prohibiting contractual override of the copyright exceptions laid down in that Directive led some academics to argue that such overrides were therefore permitted under the Directive, and that it was up for the Member States to decide to prohibit it or not under their national laws.
This fragmented landscape, where some countries have written laws preventing contracts from ruling out copyright exceptions while other countries are silent about it creates legal uncertainty: users do not know if they can rely on the rights granted to them by copyright exceptions or if they lose those rights when they sign contracts that prevent them from benefiting from said exceptions. Article 7(1) does not solve the problem completely, but at least harmonizes this landscape with regards to the new exceptions, by making it mandatory for all Member States to protect most of these new exceptions against contracts.