A new era for EU copyright exceptions and limitations? Judicial flexibility and legislative discretion in the aftermath of the CDSM Directive and the CJEU Grand Chamber’s trio

After being long neglected, copyright exceptions and limitations have been subject to multiple interventions from the EU legislator and the CJEU, some of them impressing landmark changes to the approach, nature and interpretation of such provisions. Taking stocks from the long road made in the past decades, this article systematizes the results achieved in the field and highlight outstanding flaws and inconsistencies that will characterize the way forward in the EU copyright harmonization. To this end, it offers an overview of the evolution of exceptions and limitations in EU copyright law before the CDSM Directive (§2), analyzes the interpretative problems solved, created and left behind by the CJEU (§3), and looks at the policy debates and preparatory works that led to the CDSMD, highlighting which reform proposals were successfully concluded and which ones were abandoned through the years (§4). Then, it provides a brief analysis of the innovations introduced by the CDSMD and their impact on the state of the art of EU copyright exceptions and limitations (§5), linking it to the recent Grand Chamber’s decisions (§6.1) to draw the new boundaries of discretion and flexibility left to national legislators and courts in setting the copyright balance (§6.2), and to comment on the strengths and weaknesses of the new framework