Exceptions and Limitations: User Rights or Mere Defenses?

In modern copyright law, Exceptions and Limitations (E&L) serve as essential mechanisms to balance exclusive rightholder’ interests with fundamental freedoms. This paper addresses the central research question: do exceptions and limitations operate as enforceable user rights or merely as defenses against infringement claims? Focusing on the EU, it examines harmonisation efforts via Directives, persistent national fragmentation due to optional exceptions, and digital challenges including TPMs, contract overrides, and cross-border access barriers. The paper analyses EU legislation alongside CJEU jurisprudence interpreting exceptions and limitations. The paper proceeds as follows: 1) Delineates the legal character of exceptions and limitations; 2) Examines the EU legislative acquis and CJEU jurisprudence; 3) Evaluates EU harmonisation efforts alongside fragmentation risks; 4) Investigates digital enforceability challenges; 5) Covers the examples demonstrating the function of exceptions and limitations “rights” in CJEU practice.

Limitation is a boundary of the IP right-holder’s right. That is to say, the IP right-holder’s right does not extend into the space delineated by the limitation. Put another way, the limitation is an integral part of the definition of the IP rightholder’s right. By this definition, limitations are general constraints on the scope of the IP regime.

Exception is a carve-out from the IP right-holder’s right. That is to say, an exception cuts back on the IP right-holder’s right, by removing a part of it, either partially (in the case of remunerated exceptions) or wholly (in the case of unremunerated exceptions). Put another way, an exception is a space into which the IP right-holder’s right would extend but for the existence of the exception [5, p. 3–4].

Exceptions are more specific than limitations. They operate by removing liability for infringement for undertaking certain acts that would, but for the exception, be within the scope of the IP right-holder’s exclusive rights.

Notably “exceptions and limitations are crucial for any copyright system as they secure common constitutional values such as freedom of expression and information and freedom of arts and sciences, while also serving the public interest in a comprehensive cultural life” [7, p. 2]. There are number of justifications for copyright Exceptions and Limitations [13, p. 9–22]: to protect fundamental rights and freedoms, fulfill public interests; to promote ongoing authorship; to fulfil social and cultural policy goals; to address market failures.

Without exceptions and limitations the rightholder’s exclusive right is absolute and all-encompassing (e. g., author controls all reproductions, all distributions, all derivations) With exceptions and limitations the exclusive right is surgically cut back certain defined acts fall outside the scope of enforcement, either with no payment (exceptions) or with mandatory compensation (limitations).

Exceptions and limitations do not expand the scope of protection but carve out permitted uses within it, maintaining balance between rightholders and public interest. The scope defines what is protected, while exceptions and limitation apply via tests like Article 9(2) Berne Convention or Article 13 TRIPS. According to these norms, it shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

1.2.    Legal characterisation

Of course, one might argue that this does not matter if exceptions are simply defenses against infringement, rather than conferring positive rights or freedoms on consumers. However, the Court of Jusctice of European Union (CJEU) has departed from viewing exceptions solely as derogations to copyright principles, instead treating them as bearing autonomous legal status and independent sources of rights.

In Padawan Case the Court took the view that by purchasing media equipment on which a levy fee has been charged, private users are “rightly presumed” to take full advantage of all functionalities of such equipment, including making copies. While not explicitly endorsing a “users’ right” argument, the Court’s reasoning may be seen as approximating the compensated private copying exception to a fully-fledged right, in that the purchase of levied media equipment creates a presumption that a right to make private copies is actually vested in the purchaser. Notably that, “this was not just a momentary flirtation with the idea of users’ rights is confirmed by the language used by the Court in subsequent rulings on copyright exceptions. In Technische Universität Darmstadt, the Court explicitly referred to beneficiaries of exceptions for libraries and educational establishments as having “rights” pursuant to those exceptions” [3, p. 4]. The language was then upheld and clarified with the exact same words in Funke Medien and Spiegel Online, where the Court observed: “Although article 5 of Directive 2001/29 is expressly entitled “Exceptions and limitations”, it should be noted that those exceptions or limitations do themselves confer rights on the users of works or of other subject matter. <...> In addition, that article is specifically intended <…> to ensure a fair balance between, on the one hand, the rights and interests of rightholders, which must themselves be given a broad interpretation <…> and, on the other, the rights and interests of users of works or other subject matter” [9, p. 54].

Padawan elevates statutory exceptions to sui generis rights — not mere derogations — placing them on equal footing with exclusive rights for balancing purposes. Notwithstanding the Court’s broad construction of owners’ rights, it concurrently acknowledges that exceptions vest beneficiaries with corresponding legal prerogatives.

1.3.    Interpretation principlesStrict interpretation vs effectiveness of EU law

When construing exceptions and limitations, courts must balance the competing interests of rightholders, creators, and users to give the provisions practical effect. The CJEU has progressively abandoned a rigidly narrow construction in favour of a purposive and proportionate interpretation that furthers the underlying objective of each exception. This shift is evident in Football Association Premier League (Joined Cases C-403/08 and C-429/08, Football Association Premier League and Others [2011] ECR I-09083), where the Court held that Article 5(1) of the InfoSoc Directive must be interpreted with due regard to its purpose, particularly to enable the development of new technologies and maintain a fair balance between the rights of rightholders and users. The Court reiterated this approach in Painer (Case C-145/10, Painer [2011] ECR I-12533), ruling that the quotation exception under Article 5(3)(d) must be construed so as to safeguard its effectiveness and raison d’être. A restrictive reading would not only undermine that balance but also conflict with the emerging recognition of exceptions as autonomous user entitlements, as confirmed in UPC Telekabel (Case C-314/12, UPC Telekabel [2014]).

The role of the three-step test(as a framework, not a prohibition)

Article 9(2) of the Berne Convention provides as follows: “It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author” [1].

Article 9 (2) of the Convention has set out three conditions that, today, still govern exceptions and limitations to copyright and related rights under international and EU law, namely that they be limited:

• -    to special cases, provided that the act

• -    does not conflict with a normal exploitation of the work, and

• -    does not unreasonably prejudice the legitimate interests of the author. “These three conditions, known as the “three-step test”, are used to determine whether or not an

• 2.    Exceptions and limitations in the EU legislation 2.1. The EU legislative framework enshrines exceptions and limitations chiefly to advance public-interest objectives — safeguarding fundamental freedoms, promoting education and research, and enabling specific permitted uses of copyrighted material. Within the acquis communautaire, the majority of these provisions are non-mandatory, leaving Member States with discretion over their transposition. These measures are codified across five principal directives, specifically: the InfoSoc Directive (Directive 2001/29/EC, Article 5); the Software Directive (Directive 2009/24/ EC, Articles 5 and 6); the Database Directive (Directive 96/9/EC, Article 6 and 9); the Directive on Rental Right and Lending Right (Directive 2006/115/EC, Articles 6 and 10); the Orphan Works Directive (Directive 2012/28/EU, Article 6); «the InfoSoc Directive is the most horizontal of these directives as it aims at harmonising the exceptions to copyright and related rights and applies to all types of works, with the exception of computer programs and databases, which continue to be regulated by the Software and the Database Directives» [4, p. 19].

  2.2.    General principles of exceptions and limitations in EU member states

exception or limitation is permissible under the international norms on copyright and related rights. Although the three-step test under Article 9(2) initially applied exclusively to the right of reproduction, it was later extended to all exclusive rights under other international treaties” [4, p. 10].

1.4.    The Russian legal approach to free use

Russian legislation provides for cases of free use of works, e. g. situations in which the use of a work is permitted without the authorisation of the rightholder and without payment of remuneration, provided that the moral rights of the author are respected. These cases are exhaustively enumerated in Articles 1273–1279 of the Civil Code of the Russian Federation. The permissible instances of free use are strictly delimited by Russian law and comply with the three-step test enshrined both in the Berne Convention for the Protection of Literary and Artistic Works and in paragraph 5 of Article 1229 of the Civil Code of the Russian Federation. Under Russian legal doctrine and judicial practice, free use is construed as a derogation from the exclusive rights of the rightholder. Exclusive rights constitute the general rule, whereas free use represents an exception that is permitted solely within the narrowly defined boundaries prescribed by statute. The courts consistently adhere to a literal interpretation of the statutory provisions governing free use. Consequently, a defendant in copyright infringement proceedings may invoke one of the permitted free use cases as a defence against the claim. However, the court does not treat such invocation as an exercise of a substantive “user right” but rather examines whether the defendant’s conduct falls within the narrow scope of the statutory exception.

CJEU case law confirms that Member States retain considerable latitude both when incorporating exceptions and limitations into their domestic legal orders and when specifying the detailed operational rules for those provisions, to the extent that the Directive offers no express guidance on the matter. Notwithstanding, such discretion remains circumscribed by the parameters delineated by EU law and must be exercised in accordance with such principles as:

Proportionality and high level of protection of copyright.

The need for legal certainty. In Infopaq International A/S the CJEU stated: “legal certainty for rightholders further requires that the storage and deletion of the reproduction not be dependent on discretionary human intervention, particularly by the user of protected works. There is no guarantee that in such cases the person concerned will actually delete the reproduction created or, in any event, that he will delete it once its existence is no longer justified by its function of enabling the completion of a technological process” [10, p. 19].

The principle of strict interpretation : In Football Association Premier League Ltd the CJEU stated: “It is clear from the case-law that the conditions set out above must be interpreted strictly, because Article 5(1) of the Copyright Directive is a derogation from the general rule established by that directive that the copyright holder must authorise any reproduction of his protected work (Infopaq International, paragraphs 56 and 57)” [8, p. 162].

Effectiveness of the exception : In Eva-Maria Painer the CJEU stated: “It is also important to note that while the conditions set out in Article 5(3)(d) of Directive 2001/29 must, according to the Court’s case-law referred to in paragraph 109 of the present judgment, be interpreted strictly, since that provision is a derogation from the general rule established by that directive, the fact remains that the interpretation of those conditions must also enable the effectiveness of the exception thereby established to be safeguarded and its purpose to be observed (see, to that effect, Football Association Premier League and Others, paragraphs 162 and 163)” [12, p. 133].

Development and operation of new technologies : In Football Association Premier League Ltd the CJEU stated: “In accordance with its objective, that exception must allow and ensure the development and operation of new technologies and safeguard a fair balance between the rights and interests of right holders, on the one hand, and of users of protected works who wish to avail themselves of those new technologies, on the other. b) Compliance with the conditions laid down in Article 5(1) of the Copyright Directive” [12, p. 133].

Compliance with the “Three-step test”: In Football Association Premier League Ltd the CJEU stated: “Nevertheless, in order for the exception laid down by that provision to be capable of being relied upon, those acts must also fulfil the conditions of Article 5(5) of the Copyright Directive. In this regard, suffice it to state that, in view of the considerations set out in paragraphs 163 to 179 of the present judgment, the acts also satisfy those conditions” [12, p. 181].

3.    Contractual and technical restrictions 3.1.    Contract override and licensing pressures Copyright laws around the world provide exceptions that limit the exclusive rights granted to copyright owners. However, the shift towards the digital distribution of content has led to publishers distributing this contract under license. And these licenses frequently contain terms that seek to “override” the exceptions provided under the copyright statutes.

EU directives relating to copyright have required the nullification of license terms that override specific exceptions mandated by those directives. The EU recognized that “it would be pointless to require Member States to adopt exceptions if private parties could simply override them by contract. For example, the 2019 Directive on Copyright in the Digital Single Market renders unenforceable any contractual provision contrary to exceptions mandated under the Directive for preservation and text and data mining by cultural heritage institutions” [2, p. 1–2].

Every EU Member State is obligated to transpose into its domestic legislation the safeguards that nullify any contractual attempts to override statutory exceptions. Beyond the minimum requirements prescribed by EU Directives, certain Member States have gone further by enacting broader anti-waiver (COP) clauses. For example, the national copyright frameworks of Germany, Ireland, Portugal, and Belgium expressly preclude the enforcement of any contractual terms that would constrain uses otherwise permitted under a wide spectrum of statutory exceptions.

3.2.    TPM/DRM and the “practical unenforceability” problem

The “practical unenforceability” problem represents a fundamental flaw in the EU copyright framework: Technological Protection Measures (TPMs) and Digital Rights Management (DRM) grant rightholders technological control exceeding statutory copyright exclusivity, effectively nullifying limitations and exceptions despite legal protections.

The use of DRMs/TPMs enables post-purchase control of eBooks, software, movies and music, while statutory bans on circumvention further weaken the rights of users of digital content. Built-in surveillance is an example: Adobe Spyware, which allegedly tracks and reports the reading habits of users of Adobe’s e-book software, “Digital Editions,” illustrates growing concerns for readers’ privacy and security. Widespread monitoring and automated filtering by online platforms (e. g., YouTube Content ID) create further layers of protection which may threaten user rights to privacy and freedom of expression [6, p. 6–8].

• 3.3.    Whether EU law ensures effective access to E&L EU law ensures effective access to exceptions and limitations (E&L) through mandatory minima (such as Infosoc Art. 5, DSM Arts. 3–6), CJEU harmonization ensuring uniform interpretation, contractual override prohibitions, and user rights doctrine.

• 1.    Make Exceptions and Limitations Mandatory, Not Optional.

• 2.    Establish Positive Obligations on Rightholders to Grant Access

• 3.    Broaden Protection Against Contractual Override

• 4.    Strengthen Technical Protection Measures (TPM) Exceptions

• 4.    Balance of interests copyrights and fundamental or other public rights

Optional nature of exceptions across EU Member States creates legal disharmonization and uncertainty. User-rights-based exceptions should be mandatory and uniformly implemented across all Member States to ensure legal certainty and consistent protection, especially for access-based uses like research, teaching, and cultural heritage preservation.

A core recommendation is imposing mandatory positive obligations on rightholders to make works available in formats and conditions that enable users to exercise their fundamental rights. These obligations should require rightholders to: provide access to specific format copies when necessary for lawful uses; grant licenses on reasonable terms for access-enabling purposes; facilitate access without using barriers that prevent exception exercises

To extend Article 72 CDSM Directive protections beyond the few exceptions it currently covers. All user-rights-based exceptions (including research, teaching, and preservation) should be protected from contractual override, including both express and implicit restrictions that undermine exception effectiveness.

Article 64 InfoSoc Directive should be reformed to provide concrete, enforceable mechanisms enabling rightholders to remove TPMs or provide TPM-free copies when technological barriers prevent lawful uses. The current framework is voluntary and insufficient; enforcement tools must be strengthened.

Copyright protection is recognized in Article 17(2) of the EU Charter of Fundamental Rights, but it is not absolute. It must be balanced against other Charter rights, including freedom of expression and information (Article 11), freedom of the arts and sciences (Article 13), and the right to education (Article 14). Exceptions and limitations are therefore the primary legal instruments through which this constitutional balance is achieved. The balance is established between two complementary entitlements: on one side, exclusive rights that afford authors the opportunity to control and exploit their works; on the other, privileged free uses that create what I would call “breathing space” for socially valuable ends. Copyright law serves a dual purpose: it incentivizes creation and ensures access to information, learning, and culture.

The CJEU has consistently construed Article 17(2) of the Charter of Fundamental Rights as conferring non-ab-solute protection upon intellectual property rights. In the case of Pari Pharma (T-235/15, EU: T:2018:65), the Court dismissed the applicant’s contention that the public disclosure of clinical trial data — pursuant to the European Medicines Agency’s (EMA) transparency policy — contravened Article 17(2), insofar as such data allegedly consti- tuted trade secrets safeguarded as intellectual property under Article 39(2) of the TRIPS Agreement. Although the applicant ultimately failed to substantiate the protectability of the information as a trade secret, the Court affirmed the EMA’s competence to apply redactions to clinical dossiers in accordance with Regulation (EC) № 1049/2001 on public access to documents, without the obligation to consult the applicant ex ante to avert disclosure of genuinely confidential information.

In Cofemel (C-683/17, EU: C:2019:721), the Court adopted an even more restrained interpretation, holding that Article 17(2) merely establishes that subject matter constituting intellectual property qualifies for protection under EU law, imposing no requirement upon the EU legislature to afford identical levels of protection to all categories of qualifying subject matter.

Pari Pharma and Cofemel demonstrate that protection of intellectual property can give way “by default” to other interests recognized by EU law, such as transparency in the public interest and autonomy of EU legislation. The same principle applies, by analogy, to copyright exceptions and limitations.

There are undoubtedly competing interests that should be balanced. Firstly, without copyright protection, competitors can copy expressive works at near-zero cost, forcing legitimate creators to compete against free-riders. Copyright protection solves market failure by allowing monopoly pricing, enabling authors to recover sunk costs. This is the only mechanism that enables creative markets to function at all. Secondly, as copyright protection increases, creator revenues rise, making more authors willing to invest in creation. Users obtain vastly more creative works (novels, films, music, software) with copyright protection than without it. The right holders’ interest in property protection is aligned with society’s interest in abundant creative content. A world without copyright has impoverished culture — no film industry, no software industry, minimal literature. There are fundamental user interests, including the freedoms of expression and information, and the rights to education, research and participation in cultural life.

The CJEU has moved away from a strict interpretation of exceptions as “derogations” to general principles of copyright protection, recognizing their autonomous legal status. Copyright exceptions serve a dual function: they define the inherent boundaries of protection, while simultaneously embodying broader legal values. This duality is evident in the Court’s judicial reasoning, which treats these exceptions not only as autonomous legal entitlements but also as affirmations of the fundamental rights enshrined in the EU Charter.

A shift in judicial reasoning became apparent in Padawan, which addressed the private copying exception. In that ruling, the Court determined that individuals who acquire media equipment subject to a levy are ‘rightly presumed’ to utilize all its capabilities, including the reproduction of content. Although the Court stopped short of explicitly framing this as a ‘user right,’ its logic suggests a movement toward treating the compensated private copying exception as akin to a substantive entitlement. Specifically, the payment of the levy on the equipment gives rise to a presumption that the purchaser holds an actual right to make private copies (Padawan SL v Sociedad General de Autores y Editores de Espana (SGAE), Case C-467/08 (2010).

A significant development occurred in Technische Uni-versität Darmstadt, where the Court expressly characterized the parties benefiting from the library and educational establishment exceptions as holding ‘rights’ under those very provisions (Technische Universität Darmstadt v Eugen Ulmer, Case C-117/13 [2014]).

The language was then upheld and clarified with the exact same words in Funke Medien and Spiegel Online, where the Court observed: «although article 5 of Directive 2001/29 is expressly entitled “Exceptions and limitations”, it should be noted that those exceptions or limitations do themselves confer rights on the users of works or of other subject matter. [...] In addition, that article is specifically intended […] to ensure a fair balance between, on the one hand, the rights and interests of rightholders, which must themselves be given a broad interpretation […] and, on the other, the rights and interests of users of works or other subject matter» (Funke Medien v Bundesrepublik Deutschland, Case C-469/17 [2019], and Spiegel Online v Volker Beck, Case C-516/17 [2019])

In Poland v Parliament (Case C-401/19) the Court constitutes a landmark affirmation of exceptions and limitations as autonomous user entitlements, operationalizing Article 17(7) of the DSM Directive within the broader framework of Charter Article 17(2). Dismissing challenges to Article 17’s platform obligations, the Court held that hosting providers must implement best-efforts measures to prevent infringing uploads while ensuring ex ante safeguards for lawful uses, including quotation, criticism, review, caricature, parody, and pastiche. Critically, these safeguards preclude automated filtering systems that indiscriminately block protected expressions, thereby preserving the effectiveness of exceptions and limitations as positive rights rather than contingent defences. The judgment integrates the three-step test with fundamental rights balancing, mandating that user freedoms (Charter Article 11) prevail absent demonstrable prejudice to rightsholders exploitation. This doctrinal evolution cements exceptions and limitations as inherent scope delimiters, impervious to technological circumvention.

Although this judicial trajectory could eventually yield full acknowledgment of user entitlements, a major obstacle arises from the fact that EU law equally enshrines intellectual property as a fundamental right. Nevertheless, the Court has warned against adopting an ‘absolutist’ stance on IP protection. Consequently, exceptions ought to be viewed less as public-interest ‘dispossession’ and more as legitimate ‘regulation’ of property usage. Once relegated to the margins of EU harmonization efforts, copyright exceptions have now moved to the core of the copyright framework. Achieving their complete recognition as user rights — on equal footing with authors’ rights — will necessitate deeper examination of copyright’s legal character, objectives, and boundaries. This is a challenge that the CJEU will inevitably need to confront in future rulings.

Сonclusion

The trend unequivocally favors user rights recognition, yet normative progress has not translated into guaranteed access. To strengthen effectiveness, the following optional steps might be taken into consideration: EU should mandate all user-rights-based exceptions universally; expand contractual override protection horizontally; impose positive obligations on rightholders to facilitate access; clarify TPM circumvention exemptions with enforcement mechanisms; resolve lawful access ambiguity through legislative definition and right holder access obligations.