Thomas Margoni (KU Leuven – Centre for IT & IP Law), Martin Kretschmer (University of Glasgow – School of Law), Axel Metzger (Humboldt-Universität zu Berlin), João Pedro Quintais (Institute for Information Law (IViR)), and Tatiana Synodinou (University of Cyprus) have posted The Concept of Lawful Access and its Implications for User Freedoms in the EU Copyright Acquis: Opinion of the European Copyright Society on SSRN. Here is the abstract:
The advent of digital technologies and connected patterns of production and consumption has progressively displaced ownership in favour of access as the predominant mode of enjoyment of works of authorship and other information goods. This transition from acquiring physical copies to subscribing to digital services has become prevalent across various sectors and has even enabled new commercial, cultural and scientific practices. However, it also marks a major shift in the theory and function of copyright: it transforms a right primarily concerned with regulating certain exploitations and circulations of works into one capable of controlling individual acts of access and use. EU copyright law increasingly reflects this shift through conditions of lawfulness. These appear across the acquis in different forms: the “lawful acquirer” in the Software Directive, the “lawful user” in the Database Directive, “lawful use” and “lawful source” in the Information Society Directive and CJEU case law, and “lawful access” in the Text and Data Mining (TDM) provisions of the Copyright in the Digital Single Market Directive (CDSMD). These expressions are not merely terminological variants. They perform a boundary-setting function by determining when exceptions and limitations may be relied upon, and therefore when certain acts may take place without right holders’ authorization. The principal risk, surfaced in decisions such as ACI Adam or VOB, is that lawful access, lawful use or lawful source might be equated with right holders’ authorization. An interpretation of this kind would undermine the nature and function of exceptions and limitations. Since an exception presupposes that authorization is not required, making authorization the sole condition of lawfulness would create circularity and deprive exceptions of practical effect. At the same time, lawfulness cannot be understood as an unlimited permission to access or use protected works. It must operate within identifiable legal boundaries, including effective technological protection measures, valid and enforceable contractual restrictions where not overridden by mandatory law, and other legally binding limits. Its application must also be guided by contextual principles, including the meaning of content “freely available online”, the knowledge and role of the user, the purpose and commercial or non-commercial character of the activity, the applicable fundamental rights framework, and the three-step test.
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