Five years after

Platforms’ access-based dissemination model poses various challenges to the copyright regime, including the need for “fair balance” between the interests of rightholders and other members of society. Copyright norms try to guarantee this balance by granting a high level of protection for rightholders, on the one hand, and preserving some flexibility for end-users, on the other hand. The most important copyright reform package of the European Union in this field was the Copyright in the Digital Single Market Directive (CDSM Directive). It not only introduces new substantive rights and further guarantees for the rightholders to secure a fair reward for their activities, but also numerous new exceptions and limitations were harmonized. As a part of the deal, platforms were obliged to introduce certain safeguards for the benefit of their end-users in their end-user license agreements. Shortly after the adoption of the CDSM Directive, a grandiose research endeavour kicked off, namely, the reCreating Europe H2020 project. As a part of that, the research group of the University of Szeged focused on how Member States regulate and indeed update their statutory provisions on end-user flexibilities, on the one hand, and how platforms’ private norms allow for or diminish the exercise of end-user flexibilities, on the other hand. The empirical review of 10 selected Member States statutory and case law as well as the private ordering mechanisms of 17 selected platforms led us to the conclusion that, first, Member States followed a rather defensive approach in the transposition of the new EU provisions, and, second, intermediaries offer substantive flexibilities for their consumers, but they meaningfully limit the possibilities and decrease the expectations of end-users by restricting certain uses and provide limited access to contents. Five years after the adoption of the CDSM Directive, the question still remains: can the new model more effectively preserve the copyright balance in the platform age? The follow-up review of our findings and the developments in this field prompts us to summarize the sad conclusion that such a balance remains predominantly a dream rather than a reality, and that end-user flexibilities are not fully enforced yet.