Last week, we were delighted to publish a study by Christophe Geiger and Bernd Justin Jütte exploring the case for positive obligations on rightholders to enable the enjoyment of the rights of users as enshrined in copyright law. This analysis was commissioned by Knowledge Rights 21 alongside Communia Association.
The study addresses a fundamental reason for the existence of the Knowledge Rights 21 programme—the need for action to make the rights to research, education, and cultural participation a reality in a digital age.
These rights have traditionally been protected in law, through copyright exceptions and limitations (even if treating acts grounded in fundamental rights as ‘exceptions’ remains odd). These rights exist to protect many important interests of individuals as well as support longer-term sustainability, for example, by facilitating reading and education for future generations, or supporting research and innovation.
As the authors note, they are a practical example of how copyright represents a form of social contract – a granting of rights to creators and publishers, but in return, an obligation to allow for socially useful forms of access to the public at large.
Given the stakes around research, education and cultural participation, it would also make sense to realise the huge potential created by technology to help deliver on them. However, on the contrary we are seeing the shift from physical to digital formats leading to the undermining of these key rights.
Where a researcher, educator, student or the libraries that serve them could once simply go to a shop and buy a book, magazine or journal, rightsholders can now simply refuse to licence them. Libraries in particular have a special role in this space, providing equitable possibilities for access and use, as well as building up collections for the future.
Rightsholders may deny access for different reasons – a preference to license to individuals (not libraries), a decision not to license across borders, simply not producing a digital version of a work – but the crucial impact is that the researcher, educator, student or library is then denied any possibility to make use of the rights created by copyright exceptions in law.
This, as Geiger and Jütte underline, completely undermines the efforts made by legislators to uphold the rights to research, education and cultural participation. Rather than offer researchers, teachers and learners a guarantee, it leaves them dependent on whether their access and use is seen as commercially advantageous. If it isn’t, their rights are left unfulfilled.
However, this does not need to be the case. The authors underline that the Court of Justice of the European Union has already strongly established that exceptions and limitations should be seen as user rights. In the Copyright in the Digital Single Market Directive a small number of exceptions are protected from contractual and technological override.
Moreover, EU law already creates possibilities to enforce access, for example by allowing users possibilities to remove or circumvent technological protection measures (TPMs). These TPMs can act as effectively as a refusal to licence in the first place and stop researchers, educators and others in their tracks. Similarly, provisions allowing users to override or disregard contract terms preventing them from enjoying (some) exceptions go in the same direction.
In pointing this out, the authors underline that there is, therefore, already a strong case for arguing that rightsholders should have a positive obligation to provide access to allow for other activities (research, education, cultural participation) to be possible.
In this, they highlight the specific role of libraries (and their host institutions), as institutions focused on providing equitable access, arguing that they should, in particular, have powers to buy or otherwise acquire materials on reasonable terms.
It is worth noting that the idea of access rights is not new. The whole open access movement has built on the understanding that barriers to access are by default undesirable from the perspective of advancing research.
Legislation under the last European Parliament mandate included steps to open up access to data (and in particular health data), information about the functioning of platforms, and , also created new obligations to make publicly funded research data accessible to all through the Open Data Directive.
The case made by Geiger and Jütte is an important one, and indeed echoes one of the actions set out in the KR21’s EU Action Plan (Action 8: Create a right of fair access to data and knowledge for research, innovation and education purposes).
We see many examples of the work of researchers, educators, learners and the libraries that serve them being frustrated by refusals to provide access, even when there is a full readiness to pay reasonable fees. It is surely a matter of time before the question of whether such a refusal constitutes an illegitimate restriction on users’ rights – or failure to deliver on a positive obligation on rightsholders themselves.
In the meanwhile, the EU can move to provide clarity by creating such an access right as set out in our Action Plan. Complementing this, the authors also call for an independent authority tasked with ensuring that copyright works for all, in line with Action 4 of the EU Action Plan (Establish structures at the College of Commissioner level to provide ongoing support for digital public research and education infrastructures).
Providing this access right would help us return to the balance that has been lost in copyright, and ensure that Europe can guarantee its citizens their rights to research, education and cultural participation in the 21st century.
2 July 2024
