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Rh 2. Exceptions and limitations in Directive 2001/29/EC

With the adoption of the Information Society Directive, the European legislator actually pursued several objectives among which was the creation of a harmonised legal framework that is consistent with international norms that would provide legal certainty to market players, would be sustainable and would preserve a balance between protecting the rights of right holders and the freedoms of users. Whether the legislator has achieved its goal, particularly from the point of view of libraries, archives and museums, is discussed below.

2.1 General remarks

Besides harmonising the rights of reproduction, communication to the public and distribution, the Directive ended up dealing extensively with an issue that was mentioned only incidentally in the Green Paper: copyright limitations. The European Commission was of the opinion that without adequate harmonisation of these exceptions, as well as of the conditions of their application, Member States would continue to apply a large number of rather different limitations and exceptions to these rights and, consequently, apply these rights in different forms. The harmonisation of limitations proved to be a highly controversial issue, which explains in large part the delay experienced not only in the adoption of the Directive itself, but also in its implementation by the Member States. The difficulty of choosing and delimiting the scope of the limitations on copyright and related rights that would be acceptable to all Member States also proved to be a daunting task for the drafters of the Information Society Directive. Between the time when the Proposal for a directive was first introduced in 1997 and the time when the final text was adopted in 2001, the amount of admissible limitations went from seven to twenty.

The regime of limitations established by the Information Society Directive leaves Member States ample discretion to decide if and how they implement the limitations contained in article 5 of the Directive. This latitude not only follows from the fact that all but one of the twenty-three