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Rh use of the website’s content also extends to the elements of such content that are in principle part of the public domain, because they lack originality or because they are no longer protected by any intellectual property right. Other common terms of use that can be found on the Internet prohibit the making of “any reproduction [of the content] for any purpose whatsoever”, clause which purports to restrict the use of protected as well as non-protected material posted on the website.

This chapter examined to what extent the provisions of the Information Society Directive affect the way digital works are being used. More particularly, this contribution considered whether the implementation of the provisions of the Directive pertaining to the limitations on copyright and the legal protection of TPMs allows libraries, archives and museums to comply with the objectives of the Recommendation on the digitisation and online accessibility of cultural material and digital preservation.

The analysis of the provisions of Directive 2001/29/EC inevitably leads to the following general observation: these provisions fail to contribute to the establishment of a clear framework for either rights owners or users, particularly as far as limitations on copyright and the legal protection of TPMs are concerned. The non-uniform implementation of the provisions of the Directive in the Member States gives rise to a mosaic of different rules applicable to a single situation across the European Community, which forms the main source of legal uncertainty. As a result, the lack of harmonisation may constitute a serious impediment to the establishment of cross-border online services and fails to offer a consistent approach with respect to the recognition of user interests, among which are those of libraries, archives, museums and scientists.

The transposition of article 5(2)c) of the Directive, permitting specific acts of reproduction by publicly accessible libraries and similar institutions, provides a good illustration of the prevailing uncertainty. In some Member States, the limitation applies to libraries and archives who may make reproductions of all types of works for purposes of preservation or restoration of their collection. In other Member States, this very limitation is restricted either to certain categories of works or to specific institutions. Finally, in a number of Member States, this limitation has not been