Copyright and Digital Teaching Exceptions in the EU: Legislative Developments and Implementation Models of Art. 5 CDSM Directive

Abstract

Article 5 of the 2019 EU Directive on Copyright in the Digital Single Market (CDSM) attempted to modernize the regime of copyright exceptions and limitations related to teaching activities. Its aim is to enhance the flexibility behind permitted uses to the benefit of educational institutions regarding their digital and cross-border teaching. The pressing need for such a legislative reform was confirmed by the outbreak of the COVID-19 pandemic, which dramatically moved teaching environments to online platforms. This paper dissects Art. 5 CDSM Directive unveiling three layers of analysis. First, the substance, logic, and promises of the new provision are introduced. Second, it identifies diverging national implementation models, developing a comparative study of the Hungarian, German, and Italian experiences. Third, drawing from the comparative study, the paper provides fundamental guidance in understanding whether Art. 5 CDSM Directive can be considered an evolution or, rather, a devolution of the copyright teaching exceptions in Europe. Focusing on the systematic concerns arising from the new provision, its embedded limits, and the strategic uses of the licensing carve-out, we conclude that the EU legislature has only partially achieved the goal of striking a more European, modern, and sustainable balance between copyright protection and the right to education in the digital environment.