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68 limitations listed in the Directive are optional, but more importantly from the fact that the text of the Directive does not lay down strict rules that Member States are expected to transpose into their legal order. Rather, articles 5(2) to 5(5) of the Directive contain two types of norms: one set of broadly worded limitations, within the boundaries of which Member States may elect to legislate; and one set of general categories of situations for which Member States may adopt limitations. Moreover, instead of simply reproducing the wording of the Directive, most Member States have also chosen to interpret the limitations contained in the Directive according to their own traditions. The outcome is that Member States have implemented the provisions of articles 5(2) to 5(5) of the Directive very differently, selecting only those exceptions that they consider important.

The European legislator’s decision to opt for a list of optional limitations is all the more surprising given that the possible consequences of a lack of harmonisation for the functioning of the Internal Market were already known. The result is that Member States have implemented articles 5(2) and 5(3) very differently, selecting such exceptions as they saw fit, and implementing specific categories in diverse ways. With such a mosaic of limitations throughout the European Community, the aim of harmonisation most likely has not been achieved, and legal uncertainty persists. The fact that Member States have implemented the same limitation differently, giving rise to a variety of different rules applicable to a single situation across the European Community, could ultimately constitute a serious impediment to the establishment of cross-border services. Especially for smaller users, the lack of harmonisation of the limitations on copyright is a serious issue. The level of knowledge required for the conclusion of the necessary licensing agreements per territory is too high and costly to make the effort worthwhile. Larger content providers who wish to extend their services across Europe also suffer from the lack of harmonisation, because it raises transaction costs.

2.2 Limitations to the benefit of libraries, archives and museums

Limitations adopted for the benefit of libraries are thus meant to allow these institutions to perform their general tasks and to encourage the dissemination of knowledge and information among members of