How Much ‘Freedom of Contract’ in EU Copyright Law?

This contribution asks whether and to what extent right holders can use contracts to prevent users from engaging in uses of copyright protected works which are permitted by copyright’s limitations and exceptions. We first point out that where a statutory rule does not expressly state whether it is overridable or not, the question of overridability must be determined in a way that reflects both the private and individual interests and wishes of the parties and the public interest in maintaining the overall balance on which the legislation is based. Based on analyses of the EU’s copyright directives and case law from the Court of Justice of the EU, we identify two guiding principles for assessing whether a statutory rule in the grey zone, where the law is unclear should be considered overridable or not: (1) the more individualized the contractual terms are (in terms of conclusion and content) the greater the room for manoeuvre to deviate from the statutory point of departure; and (2) the more weighty the public interest considerations underlying the legal basis from which the agreement derogates, the less scope there is for derogating from that basis.