Dear Member States, dear European Commission: Thanks for nothing!

The Directive (EU) 2019/790, once praised as a milestone for protecting authors and intended to close the value gap, is today suffering from massive misinterpretations. National implementations leave book authors with no means of enforcement and copyright contract law that is ignored. The flawed overinterpretation of the TDM exception(s) as a freeway ticket to profitable generative “AI” development has, for the past five years, paved the way for an all-you-can-read free buffet for non-European tech companies.

 

Brussels, 1^st June 2026

One in two fiction writers receives no advance payment for their book. Transparency about e-lending, or audio book streams is rarely given to writers by their publishing partners. Contracts often last over 100 years. And “thanks” to the constant overinterpretation of the scope of the infamous TDM exceptions, non-European companies are invited to plunder cultural works for the development of so-called “Generative AI” technologies. TDM exceptions have opened the door to numerous criminal business models at the expense of authors, people, and societies.

On the 5th Anniversary of the entry-into-force of the Directive on Copyright and related Rights in the Digital Single Market (EU) (2019/790; “CDSM Directive”) on 7^th June 2026, the EWC raises high concerns of the effects and damages done by the once-praised law:

• Contract law has not been appropriately applied everywhere; worse, in some Member States existing author-friendly laws have been watered down. Enforcement mechanisms for writers and translators are lacking; negotiating positions have not been strengthened; transparency remains inadequate; and remuneration has decreased rather than increased.
• Exceptions and Limitations are hopelessly overinterpreted by those who wish to use authors’ works for their own purposes, ranging from non-European tech companies to Cultural Heritage Institutions (CHI), which, for example, grant access to out-of-commerce works for AI development without seeking the authors’ consent.
• In many countries, the exceptions for education and teaching have been implemented without compensation, and thus turns authors into subsidy payers for the ailing state education budget.
• Conclusion: more books and text works are being used than ever before, but authors are asked for authorisation less frequently, are not remunerated, and transparency is withheld.

(1) The flexibility granted to Member States has largely been used to the detriment of authors – only a few genres within the book sector have benefited in some cases from (new) laws, which were previously simply non-existent.

In 2023 and in 2025/26 the EWC monitored the contractual situation of fiction writers, and of children’s books and young adult writers in EU, non-EU, and EEA countries and the effect of the CDSM Directive on their contracts and remuneration. This monitoring reveals that the national contractual provisions under the Directive have had no impact:

• Neither timely nor appropriate remuneration: Advance payments are only obtained by 42% of writers. New and emerging writers do not, or rarely get, any advance. Overall, the remuneration to writers has declined since 2021.
• Proportionate remuneration: Writers are never paid for their work, but only receive a financial share of the usage-related revenues: for example, a royalty of between 5% to 8% of the sales price for pocketbooks and between 8% to 10% for hardcovers (in fixed book price countries). There has been no increase in this share since 2021, and, indeed not for the last fifty years. Proportionate remuneration in streaming and digital uses of e-books and audiobooks is still a mission impossible, above all because of the lack of transparency given by non-EU based companies, e.g. Amazon or Spotify.
• Transparency has vanished: Overwhelmingly, authors receive financial statements once a year and have to wait another three-to-six months for the payment. Bi-annual accounting is only reported as typical for five countries. The largest gap in transparency is with respect to digital loans: up to 80-85% of authors get no figures from commercial and non-commercial e-lending.
• Full absence of mediation bodies: EU Member States are obliged to guarantee that provisions implementing alternative dispute resolution procedures are unwaivable. To date, only 10% of EU Member States have put mediation protocols or dispute entities in place. Authors continue to be lonely fighters and avoid going to court for fear of being blacklisted or financially ruined.
• Positive effects: In 70% of countries, buy-out contracts are no longer common for books, but still remain for smaller texts. For children’s books writers, the contract duration is, in some countries, now often limited to 3-9 years (and not 100 as in most of fiction book agreements), and authors find it easier to revert their rights. Also, writers of children’s books benefit from their writing community and are often able to obtain collegial support in seeking legal advice. 

“The outcome on the practices of authors in the book sector stands in particular contrast to the true intent of the legislators: the MEPs who jointly developed this Directive against strong opposition of tech and CHI, and who intended it to improve remuneration, increase transparency, and, overall, give originators, the artists and authors, a negotiating position on equal footing,” confirms Maïa Bensimon, EWC Vice President and Head of the EWC’s internal contract monitoring since 2022. “On paper, the Directive and especially it’s triangle of fairness of the Articles 18-21, is a great achievement – but in its national implementations, it is nothing more than a toothless paper tiger.

It is a complete disappointment how little the Member States were willing to follow the vision of this EU legislation in the spirit of pro-author provisions.” 

(2) The fundamental flaw of the so-called text and data mining exception: overinterpreted by tech billionaires for their own benefit, misused by CHI, still defended by the European Commission today, never intended by the European Parliament, and currently facing sharp criticism in the Culture and Legal Affairs Committees and by PACE (Council of Europe).

It was only in the final stages of the trilogue on the CDSM Directive that the Dutch delegation, encouraged by the Microsoft Alliance, managed to squeeze the infamous TDM exception in Article 4(3) into the EU law up for a vote. Rights holders – that is, authors – are supposed to be able to protect themselves through a rights reservation. As early as 2019, authors’ associations intervened, warning of potential abuse. While there was no mention of “AI” at the time, the fact that “AI development” was not intended to be included in the TDM exception(s) has been ignored to this day, particularly by the Directorates under the lead of Commissioner Henna Virkkunen, and guidelines and further legislation have been based on a legal and technical misinterpretation, thereby exacerbating the flaw rather than eliminating it.

Seven years after the approval and five years since its entry into force, there is no functioning all-over opt-out-system applied in the book sector. And where opt-outs are applied, they meet ignorance by crawlers, collectors, curators of text works, and by AI-providers. Furthermore, IP protected works had been not lawfully accessed but downloaded via e.g. piracy sites (Library Genesis, Anna’s Archive, Books3, The Pile, and 68.000 furthermore existing text sets, circulation e.g. on Hugging Face and GitHub).

At the same time, book corpora are misused, such as when a research entity like university shares its corpora and collections with a commercial enterprise within a “private partnership”. This undermines the chance for authors to ever apply a rights reservation, as they are never informed that their works are moving from regulation under Art. 3 to Art. 4.

“The invisible data trade in AI business is manifold and shows how AI providers circumvent TDM opt-outs, as there will always be a file without rights reservation, especially when published before 2021”, says Nina George, Political Commissioner of EWC and its Task Force AI Chair. “Furthermore, at EWC we are baffled that institutions like libraries, archives, museums or other CHI in the Europeana Network Association, are misinterpreting the purpose of Art. 8 CDSM Directive, and offer digitised out of commerce works to commercial AI developers, also outside the EU, or to develop national LLM without any authorisation by, remuneration, or transparency for writers and translators. In this way, certain CHIs are actively hindering authors in their efforts to apply a rights reservation or to open up negotiations on paid licensing under full control. This adds to the long list of violation of authors’ rights regarding the “input” in so-called ‘Generative AI’.”

“But also, the output of automated text systems and synthetic text generators compete with an existing, once-thriving market, and massively harms the legitimate interest of authors, other rightsholders, but also, consequently, entire societies”, adds EWC President, the writer and translator Sebastià Portell.

“The European Commission, fatally, has not promoted the obligatory 3-step-test, has avoided risk assessments and to date ignores the damage of the overinterpreted exceptions on TDM. The Commission has not recognised the strength of the argument that the TDM, in fact, should not apply to any generative AI development, as this was not intended by the parliament.

Authors are plundered on a historical scale and their right to voluntarily opt-in under fair licensing conditions is ignored. This non-authorised, non-remunerated and utterly opaque exploitation of human endeavours and investments is a transfer of value towards foreign tech and for the sole profit of users, not societies. Whatever benefits the Directive may have brought in a few individual cases, this «license to steal» completely nullifies all good intentions.”

Measures to improve the effet utile

Since 2014, the EWC followed the development, heated debates, and implementations of the CDSM Directive with the goal of securing better contractual provisions, but also of regulating dominant players in the digital environment, which has taken advantage of authors’ labour and works. However, it turned out that the fragmented and poorly implemented contract law, the regulations governing out-of-commerce works as well as education and teaching exemptions, and the TDM exception(s) actually did authors harm.

In light of the current review of the CDSM Directive, the European Writers’ Council (EWC) calls upon the European Commission to:

• Remove the non-applicable TDM exception(s), to allow entirely voluntary licencing by authors as genuine rights owners for the use of their works against appropriate and proportionate payments, and fully transparent and controlled conditions;
• Make transparency requirements in general enforceable against distribution monopolies based outside the EU and also in the case of digital use by national libraries and educational institutions;
• To advocate for competition law to allow authors’ associations to publicly provide advice on contracts and fees and to introduce a right of collective action for writers’ associations;
• To point out to the CHI digitising out-of-commerce works, that Article 8 does not permit them to transmit authors’ works to AI-developers;
• To remind the Member States Bulgaria, Portugal, and Romania of their for 25 years neglected obligation to implement a public lending right subject to remuneration.

The EWC calls on Member States to:

• Adjust contractual law provisions to ensure that the Directive achieves its intended “effet utile” to improve the remuneration and overcome outdated practices;
• Establish mediation bodies in the book sector;
• Make the educational provision (Art. 5) subject to remuneration.

  

ABOUT

The European Writers’ Council (EWC) is a non-profit non-governmental federation constituted by currently 52 national professional writers’ and literary translators’ associations and unions in 34 countries, from EU Member States, the EEA countries Iceland and Norway, as well as Belarus, Montenegro, North Macedonia, Switzerland, and the United Kingdom. EWC members comprise over 250,000 professional authors in the book sector and of all genres, incl. academic, scientific and educational texts, writing and publishing in 37 languages. www.europeanwriterscouncil.eu

RELATED RESOURCES

• The EWC responses on the evaluation of the CDSM Directive 2026
• The EWC Contract report https://europeanwriterscouncil.eu/writers-contracts-ewcsurvey-2024/
• The EWC Position Paper on the 3^rd Anniversary of the CDSM Directive https://europeanwriterscouncil.eu/transparency-is-the-needed-commitment-to-fairness