A new policy paper by the European digital rights organization, COMMUNIA, argues that “access rights” should be established in EU law “when lawful access is needed to allow users to effectively exercise their rights under existing copyright exceptions.” [1] The paper further argues that “rights holders must be further subject to a positive obligation to grant access to digital formats” to knowledge institutions such as libraries to facilitate their cultural heritage missions. [2]
The paper highlights the different failures in the European knowledge market, emphasizing that the current system fails to balance the interests of creators and the public. The authors argue that rights holders have excessive control over IP, leading to restrictive and prohibitively expensive licensing terms for knowledge institutions. This control is strengthened by the recent shift from ownership to licensing, which allows rights holders to dictate access conditions. Additionally, despite the recognition of user rights in EU copyright law, the authors argue that there are inadequate enforcement mechanisms to protect these rights, particularly when technological protection measures (TPMs) are employed to restrict access.
To address these issues, COMMUNIA recommends introducing specific measures in EU copyright law to facilitate the licensing and acquisition of digital works by knowledge institutions under fair access conditions. This includes the introduction of an ancillary access right for beneficiaries of copyright exceptions and an obligation on rights holders to facilitate effective access to digital works for these institutions. COMMUNIA argues that these measures should be subject to a proportionality assessment which considers the purpose of the use and the economic interests of the rights holders, to ensure that licensing terms are fair and reasonable. This draws on existing human rights instruments and legal precedents under EU law, and key cases from the Court of Justice of the European Union (CJEU), such as the decisions recognizing the enforceability of user rights, provide a legal foundation for these recommendations. [3] Additionally, the principles established in the Copyright in the Digital Single Market Directive, which mandates exceptions protected against contractual overrides and ensures educational licenses are adequate, further support the need for legislative measures.
[1] Policy paper #21 on the right to license and own digital materials, COMMUNIA Association (June 26, 2024), https://communia-association.org/policy-paper/policy-paper-21-on-the-right-to-license-and-own-digital-materials/.
[2] Id.
[3] See e.g. CJEU, Case C-314/12, UPC Telekabel Wien, para. 57 (balancing fundamental rights in the context of an injunction against an internet service provider to prevent access to infringing websites); Case C-117/13, Eugen Ulmer, para. 43 (affirming the right of publicly accessible libraries to digitize works in their collection to facilitate research and private study); Case C-469/17, Funke Medien NRW, paras 70-71 (interpreting exceptions and limitations in copyright law to ensure a fair balance between the rights of rights holders and users, emphasizing the need to observe fundamental freedoms).
[4] See Recital 3 of the DSM Directive, highlighting the need to facilitate access: ‘This Directive provides for rules to adapt certain exceptions and limitations to copyright and related rights to digital and cross-border environments, as well as for measures to facilitate certain licensing practices, in particular, but not only, as regards the dissemination of out-of-commerce works and other subject matter and the online availability of audiovisual works on video-on-demand platforms, with a view to ensuring wider access to content’ (emphasis added).
