With the work notification mechanism in Article 17(4)(b) and the opt-out mechanism in Article 4(3) of the 2019 Directive on Copyright in the Digital Single Market, EU copyright legislation seeks to strengthen the position of composers, performers, record labels and music publishers vis-& agrave;-vis online platforms and AI developers. From the perspective of copyright data governance, however, these provisions may have unintended side effects. Instead of strengthening the position of artists and music companies, they set in motion metadata streams from the music industry to providers of online platforms and AI developers. Ultimately, these metadata fortify the data hegemony of large technology companies. They may increase the dependence of artists and music companies on big tech platforms and AI systems for the distribution of content. To counterbalance the data hegemony of platforms and AI providers, it is advisable to establish a comprehensive EU music metadata infrastructure: a central, open data repository that bundles Article 17(4)(b) work notifications and Article 4(3) opt-out statements which are enriched with descriptive and rights clearance metadata. Once these work notifications and opt-out declarations are in parallel collected and pooled in a central EU music metadata repository, the resulting accumulation of music data can lead to a promising data reservoir capable of competing with the data collections held by online platforms and AI trainers.

In the debate on copyright exceptions permitting text and data mining (“TDM”) for the development of generative AI systems, the so-called “three-step test” has become a centre of gravity. The test serves as a universal yardstick for assessing the compatibility of domestic copyright exceptions with international copyright law. However, it is doubtful whether the international three-step test is applicable at all. Arguably, TDM copies fall outside the scope of the international right of reproduction and go beyond the test’s ambit of operation. Only if national or regional copyright legislation declares the test applicable does the question arise whether copyright exceptions supporting TDM for AI training constitute certain special cases that do not conflict with the normal exploitation of a work and do not unreasonably prejudice legitimate author or rightholder interests. As the following analysis will show, rules permitting TDM for AI training can satisfy all test criteria. An opt-out opportunity for copyright owners eliminates the risk of a conflict with the normal exploitation of a work and an unreasonable prejudice from the outset. A clear focus on specific policy goals, such as the objective of supporting scientific research, adds conceptual contours that dispel concerns about non-compliance. In the case of TDM provisions covering commercial AI development, equitable remuneration regimes can be introduced as a counterbalance to avoid an unreasonable prejudice.

In its questions for preliminary ruling to the CJEU, the Belgian Constitutional Court asks for clarification as to whether the remuneration rights enacted by the Belgian lawmaker when implementing the Directive 2019/790 on Copyright in the Digital Single Market (CDSMD), in the field of streaming service providers and of open content sharing service providers, are compliant with EU law. In the present Opinion, the European Copyright Society takes the view that an inalienable and non-transferrable remuneration right is a lawful mechanism under EU copyright law to ensure that authors and performers receive fair remuneration for the exploitation of their works and performances. The fair remuneration rationale rests on fundamental rights protection and constitutes an objective and key principle of EU copyright law, as affirmed by recent CJEU case law. Article 18 CDSMD requires Member States to ensure that authors and performers are entitled to an appropriate and proportionate remuneration when they license or transfer their exclusive rights, but states that Member States are free to choose the mechanisms to achieve that purpose. This flexibility allows national copyright laws to complement obligations of remuneration in the contractual sphere with residual rights of remuneration (RRRs), that authors and performers, generally through a collective management organization, can directly assert against economic operators exploiting their works and performances. Article 18 provides only minimum harmonization and is formulated in a way that does not require remuneration to be achieved solely through contractual arrangements between creators and their immediate contractual partners. RRRs are well established within the EU and Member States copyright law. The Rental and Lending Rights Directive already provides authors and performers with an unwaivable right to equitable remuneration for rentals. Similar remuneration mechanisms exist in several Member States for diverse modes of exploitation. The mechanism of RRR does not unduly interfere with exclusive rights. Authors and performers benefit from full exclusive rights but retain a right to remuneration (hence called residual) after they transfer or license them. This legal technique dissociates the exclusive right, necessary to authorize the reproduction, communication or making available to the public, from the right to be remunerated for such exploitation. The ECS also rejects the claim that RRRs create double payment obligations. Legally speaking, the remuneration paid under exploitation contracts concluded with producers or publishers and the remuneration paid under an RRR arise from different legal bases. Rather than requiring platforms to pay twice for the same use, the mechanism reallocates part of the overall revenue stream to creators. It is therefore a redistribution mechanism rather than an additional layer of compensation. It is in line with EU copyright law and CJEU case law admitting that the many entitlements and rights under copyright and related rights can be unbundled and separately assigned for distinct modes of exploitation. The RRR is not an exception or limitation to copyright either: it does not replace or substitute an exclusive right (as is the case with the right performers and phonogram producers to claim remuneration for broadcasting of phonograms) and it is not a compensatory system for a legally authorized use (as in the case of private copying). Regarding freedom of contract and freedom to conduct a business, the Opinion acknowledges that RRRs may require the economic operators concerned to deal with collective management organizations despite the conclusion of an exploitation contract. However, such limitations pursue legitimate public-interest objectives, namely correcting structural bargaining imbalances and ensuring fair remuneration for creators, in a proportionate manner. The RRR, provided for in Belgium in the field of online content-sharing, is not contrary to Art. 17 CDSMD, which governs online content-sharing service providers. The maximum harmonization pursued by Art. 17 only pertains to the obligation for online content sharing service providers to obtain an authorization for the making available of works and other subject-matter, and to the specific liability regime it lays down. It does not regulate how artists should be remunerated once authorization has been obtained. Remuneration issues remain governed by Arts. 18–23 CDSMD, which expressly allow Member States flexibility in implementing fair-remuneration mechanisms. National RRR systems therefore complement, rather than conflict with, Art. 17. In conclusion, Member States may lawfully introduce RRRs as a means of ensuring that authors and performers receive a fair share of the economic value generated by the exploitation of their works and performances.

This article explores the impact of EU copyright, related rights and sui generis database protection on the use of protected knowledge resources in scientific research (Sect. 1). We take a fundamental rights approach, focusing on the need to strike a fair balance between, on the one hand, copyright as an exponent of the right to property and, on the other hand, freedom of expression, freedom of information, and the freedom of the arts and sciences (Sect. 2). Surveying the current copyright/research interface reveals that the existing legal framework lacks adequate mechanisms for reconciling the divergent interests of copyright holders and researchers. Structural deficiencies are identified, such as fragmented and overly restrictive research exceptions, opaque lawful access provisions, outdated non-commercial use requirements, legal uncertainty arising from the three-step test in the EU copyright acquis , obstacles created by the protection of paywalls and other technological measures, and the risk of contracts overriding statutory research freedoms (Sect. 3). Empirical data confirm that access barriers, use restrictions, and the lack of harmonised rules for transnational research collaborations impede the work of researchers in the EU (Sect. 3). Against this backdrop, we propose legislative reform, in particular the introduction of a mandatory, open-ended research exemption to ensure reliable breathing space for scientific research across EU Member States, the clarification of lawful access criteria, a more flexible approach to public-private partnerships, and additional rules to support modern research methods, such as text and data mining. This reform agenda could form part of a broader European Research Freedom Act, aimed at establishing a balanced legal framework: an updated EU acquis that safeguards existing rights, such as copyright and sui generis database rights, while fostering innovation, collaboration, and scientific progress (Sect. 4). As a further step in the right direction, EU legislation should harmonise secondary publication rights, enabling researchers to provide open access to research results. However, this aspect of the reform agenda is beyond the scope of the present inquiry and will therefore be the focus of another study.

As of 2025, six EU Member States – Germany, France, Austria, Belgium, the Netherlands and Bulgaria – have introduced forms of Secondary Publication Rights (SPRs) as an effective tool for rebalancing the bargaining powers of authors and publishers, enhancing Open Access (OA) to scientific publications, and fostering national Open Science (OS) policies. Building on the results of a study conducted for the European Commission and published in 2024, this article supports the introduction of an EU-wide SPR as one of the key priority actions needed to fully align EU copyright law with the policy goals of the European Research Area (ERA). Given the fragmented nature of national approaches and the inherently transnational nature of much of scientific communication and publishing, a harmonised SPR with carefully tailored and balanced features is a precondition for creating a level-playing field for all scientific authors operating within the ERA. This article explores the potential of SPRs and where they intersect with OS, analysing their origins and underlying rationales. It then makes a comparative analysis of national SPR implementations and their main features. On this basis, it makes specific proposals for an EU-wide SPR, emphasising design, scope, and potential impact on stakeholders. It concludes by reflecting on the broader significance of integrating an SPR into the EU’s OS agenda.

Traditionally, the debate on trade mark law and the public domain has focused on the strategic use of trade mark law to artificially prolong exclusive rights after the expiry of protection in intellectual property systems with a limited term, and the grant of trade mark rights covering public domain material, such as cultural signs and traditional cultural expressions. While the glamorous world of fashion offers examples of protection term extension and public domain re-appropriation cases, the following analysis focuses on fashion reuse in the circular economy as a phenomenon that can be placed in a public domain context. Considering the urgent need for measures to enhance legal certainty for sustainable fashion reuse in the circular economy, the question arises whether the time has come to discuss a limitation of trade mark rights and a corresponding broadening of the public domain. More concretely, it seems tempting to establish a new public domain by giving second-hand and unsold fashion items the status of freely available resources for sustainable upcycling and reuse in the circular economy—even if these fashion items bear protected third-party brand insignia. Exploring options for the practical implementation of this new public domain space, the analysis will yield the insight that the termination of trade mark rights is beyond reach. Alternatively, however, lawmakers and judges could consider introducing a robust principle of free reuse that shields initiatives leading to the sustainable reuse of trade-marked fashion items effectively against allegations of trade mark infringement.

The shift from linear to on-demand consumption of copyright content on platforms like Spotify, Netflix and YouTube raises the question of whether authors and performers receive a fair share of streaming revenues. While industry rights holders have the opportunity to control access to protected content, it is often not the creators themselves who benefit from growing streaming revenue. The issue is global. In the EU, debates over the 2019 Copyright Directive led to harmonized rules on fair author remuneration. In 2023, the Group of Latin American and Caribbean Countries urged the World Intellectual Property Organization to analyse creators' earnings from digital content. South Africa followed suit with its Copyright Amendment Bill in 2024. Together, these regional, international and national initiatives underscore the central role of remuneration in today's copyright and streaming debates. This analysis focuses on the EU legal framework, which provides mechanisms to secure fair remuneration for authors and performers. These include rules for licensing agreements - such as contract adjustments, transparency obligations, revocation rights and jurisdiction norms - as well as a liability regime for user-generated content encouraging rights clearance. Mandatory collective licensing and remunerated copyright exceptions also help generate revenue for creators. Section I lays the groundwork for the discussion of these legal instruments. Section II reviews exclusive rights applicable to streaming. Section III describes the different legal mechanisms to ensure creators' fair remuneration - from individual and mandatory collective licensing to remunerated copyright exceptions. Section IV explores producers' bargaining power in streaming platform contexts, and Section V summarizes the results.

In its questions for preliminary ruling, the German Federal Court of Justice asked for clarification as regards the definition of pastiche under EU copyright law; and, in essence, whether and how this concept applies to musical sampling. In the present Opinion, the European Copyright Society takes the view that pastiche is an autonomous concept of EU law. Article 5(3)(k) InfoSoc Directive (ISD) should be read as an overarching provision including three forms of permitted use that share their underlying nature but shall be judged differently. The meaning of pastiche cannot be understood as a mere imitation of an artistic style and it need not entail an explicit interaction with the original work. The presence of humour or mockery is not a necessary requirement for the application of the pastiche exception. Also, the expression resulting from the exercise of the pastiche exception need not itself be an original work. Finally, the intention of the user to create pastiche plays no role in the review of the legality of any given use. At the same time, legitimate forms of pastiche need to have their own features that are distinguishable from the copyrighted expression in pre-existing works used as source materials. Overall, the use of the pastiche exception for purposes of musical sampling, as in the underlying Metall auf Metall case, complies with all the three steps of Art. 5(5) ISD.

Fashion upcycling is a form of reusing second-hand garments that has particular societal importance. It reduces fashion waste and contributes to environmental sustainability. Reworking and selling second hand and unsold fashion items, fashion upcyclers make a critical statement on the wasteful use of resources in the fashion industry. The use of trademarked fashion elements plays an important role in this free expression context. It makes the use of second-hand source material visible to consumers and enables them to understand the upcycled fashion product as an exponent of an alternative, different approach: as a harbinger of an indispensable change of course. Upcycled fashion products reflect the need for strategies to reduce fashion waste and pave the way for new, sustainable production and consumption patterns in the fashion sector. In upcycling contexts, third-party brand insignia are used in a specific metaphorical sense: as symbols of traditional production and consumption patterns which the upcycler seeks to overcome by providing an example of an alternative, sustainable approach. Considering the importance of this message in the light of the environmental crisis, it is desirable to develop legal solutions that offer support for the specific free expression context in which the use of third-party trademarks takes place. Fashion upcyclers should benefit from a particularly high degree of legal certainty – an immunity against allegations of trademark infringement – even though they reuse fashion items that bear third-party trademarks. To attain this goal, it is advisable to explore options for recalibrating the gatekeeper requirement of use as a mark. In the case of circular economy products displaying a sign which the public recognizes as a third-party trademark, it should be decisive that the public understands that the trademark is used as a symbol of problematic production and consumption patterns, and that it has become part of a “new” product consisting of reworked fashion items that served as raw materials and that have been included to provide an example of an alternative, sustainable mode of production. This finding should tip the scales in favour of the upcycler and reverse the burden of proof. The trademark proprietor should only be able to rebut the presumption of permissible use by producing evidence that the circular economy setting is a mere pretext for explicitly misleading or deliberately diluting use.

In EU copyright and trademark law, the protection of the right to intellectual property is the rule, and breathing space for competing fundamental rights, such as freedom of expression and the right to a healthy environment, is the exception. While formally recognizing the need to balance protection interests against other fundamental rights and values, the Court of Justice of the European Union (CJEU) fails to use competing fundamental rights productively. Instead, the Court has developed a meaningless fundamental rights rhetoric that produces the false impression that there is sufficient room for all competing rights and interests within the existing copyright and trademark systems. However, the current configuration of EU copyright and trademark law fails to offer users the chance of meeting right holders as equals, even if their fundamental rights are of equal ranking in the Charter. By adding fundamental rights cosmetics to imbalanced protection systems, the CJEU only cements and further stabilizes the existing rule/exception edifice that is strongly in favour of right holders. Introducing the mantra of internal balancing – requiring the reconciliation of competing rights and interests within the confines of secondary copyright and trademark legislation – the Court has even created a considerable risk of sacrificing competing fundamental rights on the altar of the EU harmonization agenda. By letting the harmonization objective reign supreme, the CJEU has also given the three-step test in copyright law and the honest practices proviso in trademark law a quasi-constitutional status. As a result, these open-ended provisions undermine limitations of exclusive rights that could support competing fundamental rights. To remove the imbalances in current EU copyright and trademark law, it would be necessary to introduce upfront gatekeeper requirements that prevent illegitimate infringement claims from the outset when competing fundamental rights are at stake.

Trademarked fashion items pose a particular obstacle to reuse projects in the circular economy. By granting broad exclusive rights, EU trademark law exposes sustainable reuse practices, such as upcycling, to allegations of infringement ranging from (post-sale) confusion to blurring, tarnishment and unfair freeriding. Against that background, this analysis explores strategies to assure fashion re-users that, as long as they do not specifically aim to mislead consumers or damage and exploit protected brand insignia, they can rework trademarked fashion items without risking the verdict of infringement. Two options for enhancing legal certainty will be explored: the first consists in adopting a strict test for ‘use as a trademark’ that could immunise sustainable fashion reuse against allegations of trademark infringement on the ground that consumers understand the specific reuse context and perceive third-party trademarks on circular economy products as mere decorative elements. The second option involves strengthening defences, in particular the referential use defence, by developing labelling guidelines that allow fashion re-users to ensure compliance with the requirement of honest practices in industrial or commercial matters.

Article 14(4) of the Digital Services Act (DSA) places an obligation on providers of intermediary services, including online platforms hosting user-generated content (see Article 3(g) DSA), to apply content moderation systems in “a diligent, objective and proportionate manner.” Against this background, the approach taken in Article 14(4) DSA raises complex questions. Does the possibility of imposing fundamental rights obligations on intermediaries, such as online platforms, exempt the state power from the noble task of preventing inroads into fundamental rights itself? Can the legislator legitimately outsource the obligation to safeguard fundamental rights to private parties?

This article provides an overview of the complex interplay between harmonized rules of unfair competition law at EU level and national approaches in the Member States. It discusses case law, sheds light on the objectives underlying protection against unfair competition and describes intersections with intellectual property rights. The analysis addresses general clauses that allow unfair competition law in the EU to keep pace with constantly changing marketing practices. It discusses the concept of confusion from a comparative trademark and unfair competition law perspective. Moreover, misleading practices, discrediting and denigrating allegations, slavish imitation, unfair free-riding, trade secret rules and transparency obligations will be explored. The analysis includes recent extensions of the canon of unfair competition rules, in particular in the field of product rankings within search results, influencer marketing and greenwashing. Particular attention will also be devoted to the growing body of transparency obligations in online marketing contexts, including obligations in the area of targeted behavioural advertising that follow from the Digital Services Act.