The framework of rights and exceptions in EU copyright law is oftencriticised for lacking the flexibility that is necessary in times of rampant techno-logical change. Courts, however, occasionally refuse to abide by the framework’sinterpretative constraints, in order to accommodate certain technology-enabled uses.In some cases, the CJEU has adopted flexible readings of the exceptions in question.In other cases, national courts have openly construed the three-step test as anenabling standard, rather than as a restrictive one. Using the relevant case law of theCJEU as its research sample, this article aims to empirically investigate the extent towhich European courts are deciding in such a flexible manner and renderingtechnology-enabled uses to be non-infringing. This study reveals that the number ofuses that the CJEU has deemed non-infringing exceeds those that have been heldinfringing. It shows, moreover, that the CJEU has circumvented interpretativeconstraints in the majority of these cases. These findings suggest that the existingframework is indeed unfit for times of accelerated technological change, but for adifferent reason than that commonly thought. The main reason for introducing agreater degree of flexibility in EU copyright law is, somewhat paradoxically, relatedto legal certainty.

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• Copyright, Technology and the CJEU: An EmpiricalStudy