Rethinking Normal Exploitation: Enabling Online Limitations in EU Copyright Law

The adoption of limitations to copyright is regulated at international and EU level by the three-step test.The major obstacle to new limitations for online use is a strict interpretation of the test, namely its second step, according to which a limitation shall not conflict with the normal exploitation of works.This article examines the test with a focus on the second step and its application to the digital and cross- border environment. It argues for a flexible and policy-oriented reading of the concept of normal exploitation. Following this approach could enable the introduction of new online limitations in EU law. In particular, within the context of current EU copyright reform, a flexible interpretation could support the introduction of a mandatory and unwaivable limitation for user-generated content.