Lawfulness for Users in European Copyright Law: Acquis and Perspectives

• Author: Tatiana Eleni Synodinou
• Position: Associate Professor, Law Department, University of Cyprus.
• Pages: 20-37

2019

Tatiana Eleni Synodinou

20

1

Lawfulness for Users in

European Copyright Law

Acquis and Perspectives

by Tatiana Eleni Synodinou*

© 2019 Tatiana Eleni Synodinou

Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and

conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8.

Recommended citation: Tatiana Eleni Synodinou, L awfulness for Users in European Copyright Law : Acquis and Perspectives,

10 (2019) JIPITEC 20 para 1.

Keywords: Copyright law; lawful user; lawful use; lawful access; lawful source; copyright exceptions; fairness;

reasonableness; good faith; users’ rights

European Copyright Law. The concept must be clari-

fied and given a broad meaning in order to cover both

uses which are authorized by the right holders, but

are also not restricted by law, by taking into account

the legal ideals of fairness and reasonableness. This

change must be accompanied by the recognition of

all copyright exceptions as jus cogens and the es-

tablishment of effective procedural mechanisms to

safeguard the enjoyment of lawful users’ rights.

Abstract: This article analyses the emerg-

ing dynamics of the concepts of lawful user, lawful

use, and lawful access in European Copyright law.

It aims to demonstrate that these concepts, which

are part of the EU copyright law acquis, have the po-

tential to provide a fair solution to the controversies

regarding the “rights” and “duties” of users in Euro-

pean copyright law. The article proposes to estab-

lish a legislative dynamic definition of lawful use in

A. Introduction

“When law can do no right,

Let it be lawful that law bar no wrong:

Law cannot give my child his kingdom here,

For he that holds his kingdom holds the law”1.

1

Would a modern Shakespeare write about copyright

law? In a modern version, one would say “because

the author holds the means to control access to the

work, he holds the copyright law”. Traditionally,

copyright law is exclusively author-oriented, and

users’ freedoms are seen as some narrow-interpreted

restrictions, justied in specic circumstances.

* Associate Professor, Law Department, University of Cyprus.

1 (King John, 3.1.189), Constance to Cardinal Pandulph.

There is no general concept of lawful or fair use of

work of mind.

2

Lawfulness and fairness could, at rst sight, be

seen as antagonistic concepts in copyright law.

Lawfulness is generally seen as a restriction in the

sense that the use of a copyright-protected work

could be made only on the grounds of a specic legal

basis. On the other hand, fairness is perceived as an

enabling concept, because it presupposes a balancing

between the interests of the right holders and users,

which would ideally result in a reasonable outcome

with no unjustied adverse effects on both parties.

3

Exploring the concept of lawfulness of use and

specically researching the status of “lawful user”

in European copyright law could be considered as

heresy. Copyright law doctrine classically perceives

Lawfulness for Users in European Copyright Law

2019

21

1

the use of copyright-protected works through

the prism of exclusive control of the work by the

copyright holder and it is characterized by the

absence of the user.2 Public interest is satised by

the establishment of strictly dened exceptions or

limitations to copyright. Moreover, exceptions or

limitations are not traditionally considered as rights

of the end-users.

4

The absence of the concept of the “user” in

copyright law is also linked to another issue: the

fundamental copyright premise that the mere use

of works is free

3

and the traditional disinterest of

copyright law in personal uses which do not have

a commercial nature. Fifty years ago, copyright law

rarely concerned itself with uses that were not both

commercial and public,4 while people believed that

they were free to use copyright-protected works

for non-commercial purposes.5 In line with this

approach, since controlling access to and use of

copyright-protected works by private users was not a

realistic goal, copyright holders have mainly focused

on controlling reproductions and communications

to the public that have a commercial nature.

5

However, the digital era changed this paradigm

and it is now possible to control access to and use of

works by private users. The dematerialization and

the disappearance of the tangible copy is a dening

feature of the digital environment. In this context,

the need to access a tangible copy of an intellectual

creation in the analogue world has been replaced

by access to the work itself. Consequently, the

intrinsic value of information resides much more

in its use than in its acquisition or possession.6

In this context, traditional users’ liberties come

under siege, since the growing dependence on

digital content, accompanied by stronger copyright

protection, has led to a narrowing of freedom of

use.7 Accordingly, it has become extremely difcult

2 Synodinou T., ‘The Lawful User and a Balancing of Interests

in European Copyright Law’ (2010), IIC: 819-843. ∙ Cohen J.,

‘The place of the user in copyright law’ (2005) 74 Fordham L.

Rev 347-374.

3 Westkamp G., ‘Temporary Copying and Private

Communications-the Creeping Evolution of Use and Access

Rights in European Copyright Law’(2004) Geo. Wash. Int’l.

LR: 1057.

4 Litman J., ‘Lawful Personal Use (Symposium: Frontiers of

Intellectual Property)’ (2007) Tex. L. Rev. 85, no. 7: 1871-920;

Litman J., ‘The Exclusive Right to Read’, (1994) 13 CARDOZO

ARTS & ENT. L.J. 29, 35; Pamela Samuelson, ‘Freedom of

Expression in Historical Perspective’, (2003) 10 J. INTELL.

PROP. L. 319, 326.

5 Litman, J., ‘Lawful Personal Use (Symposium: Frontiers of

Intellectual Property), op.cit., p. 1873.

6 Dusollier S., ‘Incidences et réalités d’un droit de contrôler

l’accès en droit européen’ in: Le Droit d’auteur: un contrôle

de l’accès aux œuvres?’, (2000) Cahiers du CRID n° 18,

p. 25-52.

7 Elkin Cohen N., ‘Copyright in the Digital Ecosystem, A User

to identify permissible use and exercising exceptions

may require some serious brainwork.8

6

The thesis that it is necessary to safeguard copyright

users’ interests or rights

9

has effectively emerged

as a reaction and a necessary counterbalance to the

growing asymmetry between the widespread control

of right holders over copyright-protected works and

the ambiguous restricted scope of copyright users’

freedoms. In light of the above, the concepts of the

“use” and of the “user” of copyright-protected works

have obtained an autonomous status in European

copyright legislation and case law through the

corresponding concepts of lawful use, lawful user,

and lawful access.10

7 This article analyses the emerging dynamics of the

concepts of lawful user, lawful use, and lawful access

in European Copyright law. It aims to demonstrate

Rights Approach’, in: Okediji R. (ed.) Copyright Law in an Age

of Limitations and Exceptions, (Cambridge University Press,

2017), p. 133.

8 Janssens M. C., ‘The issue of exceptions: reshaping the keys

to the gates in the territory of literary, musical and artistic

creation’, in: Derclaye, E.(ed.), Research Handbook on the

Future of EU Copyright, (Edward Elgar,2009), p. 317-318.

9 See, for instance: Litman J. ‘Readers’ Copyright’, (2011)

J. Copyright Soc’y 58, no. 2: 325-53; Niva Elkin-Koren, ‘Making

Room for Consumers Under the DMCA’, (2007) 22 Berkeley

Tech. L. J. 1119; L. Ray Patterson, Stanley W. Lindberg, The

Nature of Copyright: A Law of Users Rights, (Athens, Georgia:

University of Georgia Press, 1991); Carys C., ‘Globalizing

User Rights-Talk: On Copyright Limits and Rhetorical Risks’

(2017), Articles & Book Chapters,

osgoode.yorku.ca/scholarly_works/2666>; Liu J., ‘Copyright

Law’s Theory of the Consumer’, (2003) 44 B.C. L. REV. 397;

Geiger C., Schönherr F., ‘Dening the Scope of Protection

of Copyright in the EU: The Need to Reconsider the Acquis

regarding Limitations and Exceptions’ (2012) in: Synodinou

T. E. (ed.) ‘Codication of EU Copyright Law: Challenges and

Perspectives’ (Kluwer), pp. 133-167; Mazziotti G., EU Digital

Copyright Law and the End-User (Springer, 2008); Chapdelaine

P., ‘The Ambiguous Nature of Copyright Users’ Rights’, (2013)

26 INTELL.PROP.J. 1, 5; Dusollier S., ‘The Relations between

Copyright Law and Consumer’s Rights from a European

Perspective’ (2010), European Parliament Publication,

Available at SSRN: .

The importance of establishing a “fair balance” between

copyright protection and users’ interest is also mentioned

in the recital 31 to the Directive 2001/29, which states

the following: “A fair balance of rights and interests between

the different categories of rightholders, as well as between the

different categories of rightholders and users of protected subject-

matter must be safeguarded”. For a recognition of the need

to safeguard user interests by the CJEU, see, for instance:

Case C-145/10, Eva-Maria Painer v Standard VerlagsGmbH and

Others, ECLI:EU:C:2011:798, where it is stated in par. 134 that

the quotation exception “…is intended to strike a fair balance

between the right to freedom of expression of users of a work or

other subject-matter and the reproduction right conferred on

authors.”

10 Analogous developments have taken place worldwide. For

the emblematic recognition of exceptions as users’ rights in

Canada, see: Canadian Ltd. v. Law Society of Upper Canada [CCH]

2004 SCC 13.

2019

Tatiana Eleni Synodinou

22

1

that these concepts, which are part of the EU

copyright law acquis, have the potential to provide

a fair solution to the controversies regarding the

“rights” and “duties” of users in European copyright

law. In the state of the art, exceptions to Copyright

law are analyzed and interpreted either through

the scope of the three steps test,11 or with reference

to externalities such as freedom of expression. It is

proposed in this article that the emerging concept

of lawfulness should play a substantial role in the

conceptual delimitation of the copyright exceptions.

The article argues that lawfulness and fairness of

use in copyright law should not be considered

as antagonistic but as mutually complementary

elements of an EU dynamic concept of “lawful use”.

It further proposes the establishment of a taxonomy

of lawful use in European copyright law, which

would be based on the consolidation and further

development of the existing acquis and principles

of lawful use, as the latter have emerged via the case

law of the Court of Justice of the European Union

(CJEU).

8 The article is divided into three parts. The rst part

(B.) will examine the piecemeal legislative birth of

the concepts of lawful user and of lawful use and

the variant interpretations of these notions by the

CJEU. The second part (C.) will explore the adjacent,

but not identical, emerging concept of lawful access,

which was introduced in the rhetoric of the EU

copyright digital single market package. Finally, the

third part (D.) will bring to light aspects of the silent

consolidation and expansion of these concepts by

the CJEU through the establishment of a prototype of

a lawful and responsible user of copyright-protected

works on the Internet.

11 From the vast bibliography see: Geiger C., Gervais D. J.,

Senftleben M., ‘The Three-Step-Test Revisited: How to Use

the Test’s Flexibility in National Copyright Law’ (2014),

American University International Law Review, Vol.

29, No. 3, pp. 581-626. Available at SSRN:

com/abstract=2356619> or

ssrn.2356619>; Senftleben, M., ‘The International Three-

Step Test A Model Provision for EC Fair Use Legislation’,

(2010) 1 JIPITEC 67, para. 1; Grifths J., ‘The ‘Three-Step

Test’ in European Copyright Law - Problems and Solutions’

(2009), Queen Mary School of Law Legal Studies Research

Paper No. 31/2009. Available at SSRN:

abstract=1476968>. See also: Geiger C., Hilty R., Grifths J,

Suthersanen U., ‘Declaration A Balanced Interpretation Of

The “Three-Step Test” In Copyright Law’, 1 (2010) JIPITEC

119 para 1; Hilty R., ‘Declaration on the “Three-Step Test”:

Where do we go from here?’, 1 (2010) JIPITEC 83, para. 1.

B. The origins and dynamics of

the concept of lawful use in

European copyright law

9

The concept of “lawful user” made its rst appearance

in the Computer Programs Directive.

12

The Directive

has introduced the notion, but paradoxically does

not establish a clear terminology and does not use

an identical term for dening the person who is

entitled to enjoy the exceptions. In this context, the

term “lawful acquirer of the program” or descriptive

denitions such as the “person having a right to

use the computer program” or the “person having

a right to use a copy of a computer program” are

used indiscriminately to determine the person who

can lawfully invoke the application of copyright

exceptions.13

10

The same expression reappears ve years later in

the Database Directive.14 In this case, the person

who can claim the application of the exceptions

established by that Directive is dened consistently

as the “lawful user of a database”. Even though the

two Directives do not use exactly the same term, the

meaning of the concept in both Directives has to be

perceived as identical. This interpretation seems to

be implicitly conrmed by the Report published by

the Commission on the implementation and effects

of Directive 91/250/EEC on the legal protection of

computer programs.15 As stated in the Report, Articles

6 and 8 of the Database Directive (Directive 96/9/EC),

which use the term “lawful user”, were modelled

along the lines of Article 5 (1) of the Computer

Programs Directive. In any case, since the CJEU has

not expressly dealt with this question, the issue will

have to be addressed in a future consolidation or

codication of the EU copyright acquis.

11

From a copyright policy point of view, the

introduction of the concept of “lawful user” in

those two Directives constitutes the expression of

a new perception of the delimitation of copyright

monopoly, characteristically of a paradigm shift. It

is the rst time ever that the individualized entity of

the user of copyright-protected works is recognized

12 Council Directive 91/250/EEC of 14 May 1991 on the legal

protection of computer programs, OJ L 122, 17.5.1991, p.

42–46. The Directive has meanwhile been codied. See:

Directive 2009/24/EC of the European Parliament and of the

Council of 23 April 2009 on the legal protection of computer

programs (Codied version) OJ L 111, 5.5.2009, p. 16–22.

13 Synodinou T. (supra n.1).

14 Directive 96/9/EC of the European Parliament and of

the Council of 11 March 1996 on the legal protection of

databases, OJ L 77,27.3.1996, p. 20–28.

15 Report from the Commission to the Council, the European

Parliament and the Economic and Social Committee on the

implementation and effects of Directive 91/250/EEC on the

legal protection of computer programs, Brussels, 10.04.2000

COM (2000) 199 nal.

Lawfulness for Users in European Copyright Law

2019

23

1

as an autonomous subject who is entitled to exercise

certain legal prerogatives in the form of mandatory

copyright exceptions. Indeed, the introduction of

the concept of “lawful user” carries great symbolism,

but it would have remained a purely theoretical

advance if the lawful user’s capacity to enjoy the use

of copyright-protected works was not safeguarded

or guaranteed.

12 Indeed, effective means to secure a proper balance

of interests in copyright law is to take into account

the general interest through specic mechanisms of

recognition of the users’ interests inside copyright

law, such as through the establishment of users’

rights which could be enforced in courts.

16

In this

context, another unique feature of both Directives

is that they establish some of the exceptions in favor

of lawful users as mandatory, both in the sense that

Member States shall provide for those exceptions

and, more signicantly, in the sense that these

exceptions cannot be overridden by contractual

terms. Specically, Article 9 of Directive 91/250/

EC states that any contractual provisions that limit

or abrogate the right to create a back-up copy of a

computer program, to observe, study and test the

program and to decompile the program in order

to achieve interoperability shall be considered as

null and void.17 Article 15 of Directive 96/9/EC also

declares the binding nature of some exceptions. Any

contractual provision contrary to Articles 6 par. 1

and 8 of the Directive shall be treated as null and

void. Assigning a mandatory nature to exceptions

or limitations to copyright injects a new perspective

into copyright exceptions. This development could

be seen as an indirect recognition of the category

of “user rights” as an essential counterbalance to

copyright protection. So, in addition to the concept of

“lawful use”, a new category of “legal prerogatives”

also emerges: the “rights of the lawful user”.

13

In 2001, the adjacent concept of “lawful use” appears

in the Information Society Directive.18 The Directive

does not dene the lawful user as the sole beneciary

of copyright exceptions. However, the mandatory

16 Geiger C., ‘Copyright as an Access Right, Securing Cultural

Participation Through the Protection of Creators’ Interests’

in R. Giblin, K. Weatherall (eds.) What if We Could Reimagine

Copyright?, (Canberra, ANU Press, 2017), pp. 73-109; Max

Planck Institute for Innovation & Competition Research

Paper No. 15-07, available at SSRN:

abstract=2643304>. See also: Burell R. and Coleman A.,

Copyright Exceptions: The Digital Impact (Cambridge University

Press, 2005) 279; Riis T. and Schovsbo J., ‘User’s Rights,

Reconstructing Copyright Policy on Utilitarian Grounds’

(2007) European Intellectual Property Review 1.

17 See Article 8 of Directive 2009/24/EC (codied version of

Directive 91/250), supra n.3.

18 Directive 2001/29/EC of the European Parliament and of

the Council of 22 May 2001 on the harmonisation of certain

aspects of copyright and related rights in the information

society, Ofcial Journal L 167, 22/06/2001 P. 0010 – 0019.

temporary copy exception provided for by Article

5 par. 1 presupposes either acts of reproduction

whose sole purpose is to enable transmission by an

intermediary on a network between third parties,

or lawful use to be made of a work or other subject

matter. Even though the “lawfulness” of the use is not

directly assessed in relation to the user’s status as it

is in the Software and the Database Directives, but in

relation to the purpose of the act of reproduction,19

the concepts of “lawful user” and of “lawful use”

in the three Directives must be deemed to have the

same meaning and the same function.

14

While the Software Directive and the Database

Directive did not provide a denition of the “lawful

user”,20 Recital 33 of the Information Society

Directive denes “lawful use” broadly as any use

which is authorized by the right holder or not

restricted by law. There are two alternative criteria

for assessing the “lawfulness” of the use. Either

such use is authorized by the right holder (either

expressly or implicitly if a work is made freely

available through a website without any terms and

conditions governing its use) or it is not restricted

by law. In that sense, even though it is not entirely

clear, it appears that a use would be lawful not only

if it is based on a copyright exception or limitation,

21

but also on other legal grounds outside the purview

of copyright law. Especially with regard to the

assessment of lawful use on the grounds of copyright

exceptions, it strongly depends on the possibility of

neutralizing copyright exceptions by technological

protection measures (TPMs) and contractual

agreements. Concerning the enforceability of

exceptions against TPMs, Directive 2001/29 chose

to respond under an umbrella solution in Article 6

(4), which gives great freedom to Member States to

adopt appropriate measures for safeguarding the

enjoyment of copyright exceptions,22 while this

provision does not apply if the work is made available

via on-demand services on agreed contractual

terms.23 Specically, EU copyright legislation has

19 Dussolier S., ‘Droit d’auteur et protection des œuvres dans

l’univers numérique, Droits et exceptions à la lumière

des dispositifs de verrouillage des œuvres’ (2005) Larcier,

Bruxelles, p. 449.

20 For possible interpretations, see: Vanovermeire V., ‘The

concept of the lawful user in the database directive’, (2000)

IIC, Vol. 31, p. 63-81; Dusollier S., ‘L’utilisation légitime de

l’œuvre: un nouveau sésame pour le bénéce des exceptions

en droit d’auteur?’ (2005) Communication-Commerce

Electronique (11), pp 17-20; Aplin T., ‘Copyright Law in the

Digital Society: The Challenges of Multimedia’, (2005), Hart

Publishing, p. 181.

21 Van Eechoud M., Hugenholtz P. B., Van Gompel S., Guibault

L., Helberger N., ‘Harmonizing European Copyright Law’

(2009), Wolters Kluwer, Kluwer Law International, p. 116.

22 Bechtold, S., ‘Information Society Directive, art. 6’, in: Dreier

Th., Hugenholtz, P.B. (eds.), ‘Concise European Copyright

Law’ (2006), Kluwer Law International, p. 391.

23 Article 6 (4) of Directive 2001/29/EC of the European

2019

Tatiana Eleni Synodinou

24

1

an ambiguous approach on this issue. Regarding

the thorny issue of the tension between exceptions

and overriding contractual terms, Directive 2001/29

did not provide a clear answer. Recital 45 states

that “the exceptions and limitations referred to in

Article 5(2), (3) and (4) should not, however, prevent

the denition of contractual relations designed

to ensure fair compensation for the rightholders

insofar as permitted by national law”. As Guibault

highlights, this has led to somehow conicting

interpretations. Some commentators argue that the

limitations of Articles 5(2) to 5(4) can be overridden

by contractual agreements, while others consider

that the ability to perform legitimate uses that do

not require the author’s authorization is a factor

that can be considered in the context of contractual

agreements regarding the price.24 Consequently,

while certain exceptions might be safeguarded

against TPMs in national copyright laws under

the ambivalent conditions set by Article 6 par. 4 of

Directive 2001/29, the question of the prevalence of

copyright exceptions over contracts, or vice-versa,

has been left mainly to the discretion of the Member

States. An approach favoring a general prevalence

of copyright exceptions over contractual clauses

emerged in the Verwertungsgesellschaft Wort (VG Wort)

cases,25 where the CJEU appears to support the view

that Member States generally have a choice over

whether or not to allow exceptions to be overridden

by, limited by, or otherwise dependent on contract

terms. However, where contract or license terms

are not expressly allowed by domestic copyright

laws to limit the scope of an exception, the default

position is that the exception will prevail over any

rights holder authorization.

26

Whether this approach

would become a prevailing principle in European

copyright law remains to be seen, while in the

meantime the question has only been harmonized

for specic copyright exceptions.

15

Consequently, it appears that a use would be

lawful on the grounds of a copyright exception or

limitation, provided that this exception has not been

Parliament and of the Council of 22 May 2001 on the

harmonisation of certain aspects of copyright and related

rights in the information society.

24 Guibault L., ‘Relationship between copyright and contract

law’ in: Derclaye, E.(ed.), Research Handbook on the Future of

EU Copyright, (Edward Elgar,2009), p. 529.

25 Cases C-457/11 to C-460/11, Verwertungsgesellschaft

Wort (VG Wort) v Kyocera and Others (C-457/11) and Canon

Deutschland GmbH (C-458/11) and Fujitsu Technology Solutions

GmbH (C-459/11) and Hewlett-Packard GmbH (C-460/11) v

Verwertungsgesellschaft Wort (VG Wort), ECLI:EU:C:2013:426.

26 See par. 37 of VG Wort, op.cit. : “Where a Member State has

decided, pursuant to a provision in Article 5(2) and (3) of Directive

2001/29, to exclude, from the material scope of that provision,

any right for the rightholders to authorise reproduction of their

protected works or other subject-matter, any authorising act the

rightholders may adopt is devoid of legal effects under the law of

that State.”

contractually forbidden, unless European or national

copyright law has established, either expressly or

implicitly (by not expressly allowing contract or

license terms to limit the scope of an exception),

this exception as being resistant to contractual

agreements.

16

The CJEU was called upon to interpret the

prerequisite of “lawful use” laid down in Article 5

par. 1, in the Infopaq II, Football Association Premier

League and the recent Filmspeler cases. As will be

demonstrated, the CJEU’s stance in relation to the

concept of lawful use is ambivalent, because while at

rst it embraced a exible approach - which appears

to comply with Recital 33 of the Information Society

Directive - more recently it restricted its scope by

linking lawfulness to the author’s consent and by

establishing lawful access (interpreted as accessing

the work via a “lawful source”) as a prerequisite for

subsequent lawful use.

17

In point of fact, the Court rst adopted a broad

construction of the concept of “lawful use”, with

reference to Recital 33 of the Information Society

Directive.27 In Infopaq II,28 the Court conrmed

that the specic authorization of the copyright

holder is not required for asserting that the use

is lawful. The Court held that the drafting of a

summary of newspaper articles, even though it

was not authorized by the copyright holders, was

not restricted by the applicable legislation and the

use could not be deemed unlawful. Similarly, in its

judgment of 4 October 2011 in Football Association

Premier League,

29

the Court was called upon to analyze

whether the temporary copy exception could apply

to the ephemeral acts of reproduction which were

taking place upon the mere reception of satellite

broadcasts by television viewers. It held that the

picking up of such broadcasts and their visual

display in a private context did not constitute an act

restricted by the legislation and that such reception

was to be considered lawful in the case of broadcasts

from a Member State, when brought about by means

of a foreign decoding device. In this context, the

notion of lawfulness can therefore be dened as a

specic application of the notion of good faith.

18

However, in the recent Filmspeler case,30 the CJEU

afrmed that the temporary copy exception of

Article 5 par. 1 of the InfoSoc Directive cannot

27 Seville C., EU Intellectual Property Law and Policy, (Edward

Elgar, Cheltenham, 2016) p. 75.

28 Case C-302/10, Infopaq International A/S v Danske Dagblades

Forening, [2012], ECLI:EU:C:2012:16, paras 44 and 45.

29 Cases C-403/08 and C-429/08, Football Association Premier

League Ltd and Others v QC Leisure and Others and Karen Murphy

v Media Protection Services Ltd, ECLI:EU:C:2011:631, par. 170

to 172.

30 Case C-527/15, Stichting Brein v Jack Frederik Wullems, [2017],

ECLI:EU:C:2017:300.

Lawfulness for Users in European Copyright Law

2019

25

1

be relied on by users of Kodi boxes, and thus of

multimedia players on which there are pre-installed

add-ons, which modify the settings and allow the

Kodi box user to have access to private servers on

which copyright-protected works have been made

available to the public without the right holders’

consent. Even if the content is streamed to the

device, a technical and temporary copy of the work

is still held in the device’s memory. The CJEU rmly

rejects the application of the exception of temporary

reproduction, since it is clear that these settings do

not correspond to a lawful use. On the contrary, the

temporary reproductions on the multimedia players

are made in the course of an obviously illegal use,

since the users of such devices are deliberately

accessing a free and unauthorized database of

protected works.31

19 Consequently, the users of the device are not lawful

users and they are also infringing copyright law,

because no copyright exception can be invoked in

their favor in relation to the reproductions made.

This stance taken by the CJEU is not surprising; since

the seminal ACI Adam case,32 it would be impossible

for users to invoke the private copy exception, due

to the lack of a lawful source of the copy. As the

Court stated, to accept that such reproductions may

be made from an unlawful source would encourage

the circulation of counterfeit or pirated works, thus

inevitably reducing the volume of sales or of other

lawful transactions relating to protected works,

with the result that a normal exploitation of these

works would be adversely affected. In line with the

ACI Adam’s argumentation, the CJEU in Filmspeler

has also closed to users the escape route of the

temporary copy exception. In order to arrive at this

conclusion, the CJEU takes into account the mens

rea of users of Kodi boxes, who deliberately access a

free and unauthorized database of protected works,

in order to conclude that they cannot rely on the

temporary copy exception, because the temporary

acts of reproduction take place in the context of a

clearly illegal use.

20 From the above, it appears that the CJEU has opted

for a exible denition of the notion of “lawful use”

based on the equally broad formulation of Recital

33 of the Information Society Directive, in the sense

that a lawful use could also be any use which is

not restricted by law, and therefore any use that

can rely on copyright exceptions. However, as the

Filmspeler judgment shows, the assessment made of

the “lawfulness” of use on the grounds of a copyright

exception is holistic, in the sense that the status of

the user’s knowledge in relation to the legality of the

31 Ibid, par. 69.

32 Case C-435/12, ACI Adam BV and Others v Stichting de Thuiskopie

and Stichting Onderhandelingen Thuiskopie vergoeding, [2014],

ECLI:EU:C:2014:254.

source of the copy of the work, which is accessed and

used, is also taken into consideration.

21 In this context, the lawfulness of use for end-users

depends on two interrelated criteria: a) their access to

the work via a lawful source; and b) their knowledge

in relation to the lawfulness or unlawfulness of this

source. This approach is pragmatic because it takes

into consideration the informational asymmetry

in relation to the assessment of the lawfulness of

the source of a copyright protected work, which is

used on the grounds of a copyright exception. If only

the rst criterion, which is an objective one, were

to apply, this would make it impossible for users to

invoke copyright exceptions every time they access

the work via an unlawful source, regardless of

whether they are reasonably in the position to know

or assume the unlawfulness of the source. In this

context, the second criterion, which is subjective,

would enable users who are not in a position to know

or to logically assume the unlawfulness of the source,

to still invoke copyright exceptions and be regarded

as lawful users.

22

As will be shown, this line of reasoning has been

consolidated by the CJEU in the hyperlinking

cases (Svensson, Bestwater and especially GS Media).

Furthermore, the question of the “lawful source”

has dynamically reappeared recently, through the

analogous concept of lawful access. The latter has

emerged as a new trend in the EU Digital Single

Market Copyright Package, though in variant forms,

while the nature of the relationship between lawful

access and lawful use is not clear (C.).

C. “Lawful access” in the Digital

Single Market Copyright

Package: a new trend?

23

The concepts of lawful access or lawful use must not

be confused with the concept of lawful user. In this

case, lawfulness is attached to the act, not to the

person. The concept of “lawfulness” is also present

in the recently adopted Directive on Copyright in the

Digital Single Market. Specically, “lawful access”

to works or other protectable subject-matter is a

prerequisite for enjoyment of the text and data-

mining exceptions.33 The prerequisite of “lawful

access” is not something new in the Digital Single

Market Package, since Article 6 (4) of the Directive

2001/29 referred to the associated concept of “legal

access”.34 When referring to “lawful access” as a

33 Articles 3 and 4.

34 “6. 4. Notwithstanding the legal protection provided for in

paragraph 1, in the absence of voluntary measures taken by

rightholders, including agreements between rightholders

and other parties concerned, Member States shall take

2019

Tatiana Eleni Synodinou

26

1

condition for enjoyment of the exception, the text

closely follows the model of the UK text on the

data-mining exception35 and not the criterion set

in the French text on the data-mining exception,36

which covers reproductions from “lawful sources”

(material lawfully made available with the right

holders’ consent).37

24 From the wording of the provision, it appears that

lawfulness of access is a prerequisite for enjoyment

of the exceptions as lawful use. Nonetheless, the

text of the Directive does not dene what “lawful

access” is. Some indications are to be found in

Recital 14 of the Directive, where it is explained

that lawful access to copyright-protected content

occurs, for example, when researchers have access

through subscriptions to publications or open-access

licenses. Furthermore, it is noteworthy that lawful

access comprises also access to works which are

freely available on the Internet.

38

Nonetheless, there

is no indication whether lawfulness of access is to

be assessed purely objectively or also by taking into

consideration other factors, such as the presumed

state of mind of the user in relation to the lawfulness

of the source of the work. Consequently, a crucial

question is to determine the relationship between

“lawful use” and “lawful access”.

25

First, the two concepts could be differentiated

chronologically: it could be argued that lawful access

refers only to the initial access to the work via a

lawful source. So, “lawful access” to the work is a

rst checkpoint of the lawfulness of the subsequent

user’s acts. The underlying idea is that there cannot

be lawful use of the work or the database without

initial lawful access to it. The Proposal, however,

remains silent on whether “lawful access” should

only be interpreted as having access to the work

appropriate measures to ensure that rightholders make

available to the beneciary of an exception or limitation

provided for in national law in accordance with Article 5(2)

(a), (2)(c), (2)(d), (2)(e), (3)(a), (3)(b) or (3)(e) the means of

beneting from that exception or limitation, to the extent

necessary to benet from that exception or limitation and

where that beneciary has legal access to the protected

work or subject-matter concerned”.

35 Copyright, Designs and Patents Act 1988, § 29A (UK).

36 Art .38 of the Law No. 2016-1231 for a Digital Republic added

paragraph 10 to Art.L122-5 and paragraph 5 to Art. L 342-

3 of the Intellectual Property Code (Code de la propriété

intellectuelle, CPI).

37 Geiger C., Frosio G., Bulayenko O., ‘The Exception for

Text and Data Mining (TDM) in the Proposed Directive

on Copyright in the Digital Single Market-Legal Aspects,

In depth Analysis for the JURI Committee. European

Parliament, E 604.941’ (2018), p. 17.

38 However, the exception of Article 4 is not applicable if

the the use of works and other subject matter has been

expressly reserved by their rightholders in an appropriate

manner, such as machine readable means in the case of

content made publicly available online. See: Art. 4, par.3.

with the consent of the author or other right holder,

or whether there might be other legal grounds for

having lawful access to the work.

26

On the other hand, it could also be argued that

lawful access and lawful use should be perceived as

the necessary complementary steps accompanying

the act of use as a whole. In this sense, “lawful use”

encompasses both access to the work and all uses

made of it, either simultaneously or subsequently

to accessing it. This approach has two advantages.

Firstly, it consolidates the various existing

terminologies found in the piecemeal EU copyright

legislation (lawful acquirer,39 person having a right

to use a computer program,

40

lawful user,

41

lawful

use,42 legal access,43 lawful access).44 Secondly,

instead of evaluating the lawfulness of the user’s

acts in the form of two steps (access, other uses), it

promotes a holistic approach to the lawfulness of

users’ acts, which could enable more exibility, but

also injects an element of responsibility with regards

to the users’ acts vis-à-vis copyright protected works.

27

Accordingly, lawful use should be endowed with

a broad meaning. In the case of the text and

data-mining exception this would mean that the

exception could be enjoyed by every person who can

use the work or the database, either on the grounds

of a contract or license (in which case the license

granted to the research institution will necessarily

cover use by researchers), but also when their use

is not prohibited by law. In this context, it would

have been preferable to use the term “lawful use” in

the text on the data-mining exception too, since the

latter has been broadly dened and consolidated in

CJEU case law; at least regarding the temporary copy

exception established by the Information Society

Directive.

45

However, such an interpretation could

possibly be put forward by the CJEU if it is called on

in the future to decide on relevant questions.

28

It is also noteworthy that the text on the data-

mining exception of Article 3 is mandatory, since

any contractual provision contrary to that exception

will be unenforceable. The guarantee covering the

exception against contractual clauses certainly

strengthens the position of users, who can enjoy the

39 Article 5 (1) of Directive 91/250/EEC on the legal protection

of computer programs.

40 Article 5 (3) of Directive 91/250/EEC on the legal protection

of computer programs.

41 Articles 6, 8 and 9 of Directive 96/9/EC on the legal

protection of computer programs.

42 Article 5 (1) of the Directive 2001/29 on the legal protection

of computer programs.

43 Article 6 (4) of the Directive 2001/29 on the legal protection

of computer programs.

44 Recital 14 and Articles 3 and 4 of the Directive on Copyright

in the Digital Single Market.

45 Geiger C., Frosio G., Bulayenko O., (2018), p. 24.

Lawfulness for Users in European Copyright Law

2019

27

1

exception as a reinforced legal prerogative akin to a

“user right”. This is also in line with the reasoning

of the Software and the Database Directives, where

only “lawful users” can enjoy copyright exceptions.

However, conversely this stance also embodies

a more restrictive approach to enjoyment of the

exception,46 since as the European Copyright Society

has pointed out, it makes the exception subject

to private ordering. Indeed, the exception can

effectively be denied to certain users by a right holder

who refuses to grant “lawful access” to works or who

grants such access on a conditional basis only.47 So

the concept will act restrictively if the condition of

“lawful access” is interpreted in such a way that it

will always depend on the terms of a contract or

license. This is the reason why it is imperative to

consolidate the terms of “lawful access” and “lawful

use” into a single EU autonomous legal concept (that

of “lawful use”) and to dene it exibly.

29

The Digital Single Market Copyright Package also

introduced another mandatory copyright exception

in the Portability Regulation,48 which entered into

force in April 2018. Specically, Article 3(1) introduces

an obligation for an online service provider to enable

a subscriber to access and use the online content

service when temporarily present in other Member

States. Furthermore, Article 5 provides that any

contractual provisions, including those existing

between holders of copyright and related rights,

those holding any other rights relevant to the use

of content in online content services and service

providers, as well as between service providers and

subscribers, which are contrary to Articles 3(1) and 4,

shall be unenforceable. Even though it is not expressly

classied as a “lawful user’s right”, the obligation of

portability established by the Regulation takes the

form of a personal right in favor of a user/consumer.

Indeed, the portability privilege presents the two

essential features of a lawful user’s right. Firstly, it is

not established generally in favor of the public, but

in favor of a specic and distinct legal subject: the

subscriber-consumer of an online content service

who, on the basis of a contract for the provision of an

online content service with a provider, may lawfully

access and use such a service in his Member State of

residence. Secondly, like the software and database

lawful user’s rights and the text and data-mining

exception of Article 3, portability is fully guaranteed

against opposing contractual terms and cannot be

46 Dusollier S., ‘L’utilisation légitime de l’œuvre : un nouveau

sésame pour le bénéce des exceptions en droit d’auteur?’

(2005) 11 Communication-Commerce Electronique, pp 17-

20, at 18.

47 European Copyright Society, ‘General Opinion on the EU

Copyright Reform Package’, (2017).

48 Regulation (EU) 2017/1128 of the European Parliament and

of the Council of 14 June 2017 on cross-border portability

of online content services in the internal market OJ L 168,

30.6.2017, p. 1–11.

overridden by the contractual will.49

30

Nonetheless, unlike the concept of “lawful use” in

the Information Society Directive, the concept of

the “lawful user” who can claim the portability right

is dened narrowly in the Portability Regulation

as the subscriber to the online content service.

Consequently, beneciaries of the portability

privilege are the only persons who have been

contractually granted the right to use the service.

This is also explained in Recital 15 of the Portability

Regulation. According to this provision, “This

Regulation should apply to online content services

that providers, after having obtained the relevant

rights from right holders in a given territory, provide

to their subscribers on the basis of a contract, by any

means including streaming, downloading, through

applications or any other technique which allows use

of that content. For the purposes of this Regulation,

the term contract should be regarded as covering

any agreement between a provider and a subscriber,

including any arrangement by which the subscriber

accepts the provider’s terms and conditions for

the provision of online content services, whether

against payment of money or without such payment.

A registration to receive content alerts or a mere

acceptance of HTML cookies should not be regarded

as a contract for the provision of online content

services for the purposes of this Regulation”.

31

The restrictive denition of “lawfulness” in this

case corresponds to the reality of the transactions of

such services, which are normally provided against

payment. In this context, the entire edice of the

portability mechanism is modelled on the case where

a subscription contract exists, and therefore all the

necessary checks on the user’s Member State of

residence are based on information provided through

the subscription contract. Consequently, the concept

of “lawfulness” takes on a very specic meaning and

has to be distinguished from the broader concept

of “lawful use” contained in the Software, Database

and Information Society Directives, as well as the

notion of “lawful access” of the text and data-mining

exceptions.

D. The implicit consolidation and

expansion of the concept of

“lawful use” in the CJEU’s case law

32

The concept of “lawful user” was expressly

recognized in sectoral EU copyright law Directives

(the specic cases of software and databases) and

the temporary copy exception of the Information

Society Directive, while the adjacent concept of

49 Synodinou T (2016), p. 14.

2019

Tatiana Eleni Synodinou

28

1

“lawful access” is a criterion for enjoyment of the

text and data-mining exception in the Directive in

the Digital Single Market.

33

However, the appearances of these concepts

are sporadic and inconsistent. In this context,

even though the emergence of “lawful use” has a

signicant symbolic value, it still remains marginal

in EU copyright legislation.

34 Nonetheless, the CJEU seems to have taken on the

task of implicitly expanding and further elaborating

the concept. As has been demonstrated in ACI Adam,

50

the CJEU introduced lawfulness of access to the work

as a prerequisite for lawful use when afrming that

the benet of the private copy exception concerns

only reproductions made from “lawful sources”.

51

The Court takes a rm stance and considers that

the application of the private copy exception is

not possible under EU copyright law, basing its

argumentation solely on the unlawful nature of the

source, which is interpreted by reference to the three

steps test. The CJEU does not give a precise denition

of what constitutes an “unlawful source”, but it bases

its argumentation mainly on the three steps test. In

this context, the prerequisite of the lawful source

appears to be emancipated from the specic private

copy context and takes on the broader dimension of

“lawful access”. Since the CJEU did not expressly link

its line of reasoning to the private copy exception,

it could be deduced that the same reasoning could

apply to all copyright exceptions. This could imply a

general underlying principle that only lawful users

can claim the application of copyright exceptions.52

35

It is noteworthy that the assessment of “lawfulness”

is strictly linked to the source of the copy and

does not take into consideration the end-user’s

knowledge in relation to the unlawfulness of the

source of the copy. As a result, end-users cannot

claim the application of the private copy exception

for illegal downloads. In this sense, lawfulness differs

from the principle of good faith. The CJEU does not

take its reasoning further to ofcially declare that

end-users are not lawful users and are, therefore,

copyright infringers. Nonetheless this is implied,

even though for practical reasons and due to privacy

concerns, individual users who download material

from unlawful sources are not expected to face legal

action.53

50 Case C-435/12, ACI Adam BV and Others v Stichting de Thuiskopie

and Stichting Onderhandelingen Thuiskopie vergoeding, [2014],

ECLI:EU:C:2014:254.

51 Ibid, par. 39.

52 Lucas A., Lucas- Schloetter A., Bernault C., ‘Traité de la

propriété littéraire et artistique’ (2017), LexisNexis, supra

n.9, p.390, n 400.

53 Quintais J.P., de Leeuw A., ‘No more downloading from

unlawful sources?’ (2014) Kluwer Copyright Blog. Available

via

36

In the subsequent Copydan judgment,

54

the CJEU was

more explicit regarding the conditions governing the

“lawful source”. In the Court’s view, the focal point

for assessing the lawfulness of the source is the right

holder’s consent. As the Court stated, reproductions

made using unlawful sources are those which are

made from protected works that are made available

to the public without the right holder’s consent.

55

The lawfulness of the use (the making of a private

copy in this case) is therefore conditional upon the

way the source of the copy was made available to

the public. If the work was made available to the

public with the right holder’s consent, the source

is lawful and its use by the end-user is lawful too.

By doing so, the CJEU embodies in its reasoning a

logic of exclusive control of the uses of copyright-

protected works and of copyright exceptions by

private ordering. It will be fairly straightforward to

ascertain when the end-user has acquired a copy

of the work or has lawfully accessed the work as a

service on the basis of a license/contract concluded

directly between the right holder and the user.

There will, however, be grey areas if a work is made

available without rights holders clearly indicating

which acts are authorized.

37

Based on the nding that the lawfulness of the

source is assessed according to whether the work

was made available with or without the right

holder’s authorization, the CJEU further elaborated

on the lawfulness of linking the activities of users

of copyright-protected works. First, in Svensson56

and Bestwater,57 the CJEU held that when an author

published or authorized the publication of her work

on a website without any technical restrictions, it

is presumed that authorization was granted to all

Internet websites to access this work via hyperlinking

or framing. As the CJEU noted “…, it must be held

that, where all the users of another site to whom the

works at issue have been communicated by means of

a clickable link could access those works directly on

the site on which they were initially communicated,

without the involvement of the manager of that

other site, the users of the site managed by the

latter must be deemed to be potential recipients

of the initial communication and, therefore, as

being part of the public taken into account by the

copyright holders when they authorised the initial

communication”. Consequently, the lawfulness of

hyperlinking is dependent on the presumed consent

of the author or right holder who, in the absence

no-more-downloading-from-unlawful-sources/>.

54 Case C-463/12, Copydan Båndkopi v Nokia Danmark A/S, [2015],

ECLI:EU:C:2015:144.

55 Ibid, par. 74.

56 Case C-466/12, Nils Svensson and Others v Retriever Sverige AB,

[2014], ECLI:EU:C:2014:76.

57 Case C-348/13, BestWater International GmbH v Michael Mebes

and Stefan Potsch, [2014], ECLI:EU:C:2014:2315.

Lawfulness for Users in European Copyright Law

2019

29

1

of any technical restrictions of access to the work,

is supposed to have authorized the communication

of the work to all Internet users. This has also been

further afrmed in the case of Soulier and Doke,58

where the CJEU held that in a situation in which

an author had given prior, explicit and unreserved

authorization for the publication of his articles

on the website of a newspaper publisher, without

making use of technical measures restricting access

to these works from other websites, that author

could be regarded, in essence, as having authorized

the communication of these works to the general

Internet public.

38 This objective approach of the concept of the public

is broad, but still has its own limits. If the work is

communicated to the public lawfully but without

the author’s consent by a user on the basis of a

copyright exception, then third parties, such as

search engines, which provide a link to the work,

are not directly covered by the Svensson principles.

This is because the fact that it is impossible for the

author to prohibit use due to the prevalence of a

copyright exception (where the author cannot by law

prohibit specic uses) is not legally equivalent to the

positive act of granting authorization or consenting

to use.

59

However, the exceptional signicance of

hyperlinking for the Internet function could result

in reversing this line of thinking, as for instance

was the case in Germany, where despite GS Media’s

presumption of knowledge for prot-making linkers,

the German Federal Court of Justice held that such

a presumption would not apply to search engines

and for links displayed by search engines, because

of the particular importance of these subjects to

the functioning of the Internet. Consequently, the

Court concluded that Google had not infringed the

claimant’s copyrights by displaying thumbnails of

and links to photographs publicly available on the

Internet without the right holder’s consent.60

39

The CJEU’s approach raises some additional questions

in relation to what kind of restrictions the author

should impose in order to avoid being presumed

to have given his consent for communication of

the work to all Internet users. Are contractual

restrictions equivalent to technical restrictions,

such as a “paywall overlay”? If a right holder adds

a disclaimer below the work of mind, stating that

linking to this work is not authorized, could it

be possible that a potential link is not infringing

58 Case C-301/15, Marc Soulier and Sara Doke v Premier ministre

and Ministre de la Culture et de la Communication [2016],

ECLI:EU:C:2016:878.

59 See for such an approach : Varnerot, V., ‘La gestion collective

du droit de reproduction et de représentation des œuvres

d’arts visuels par les services automatisés de référencement

d’images’, Communication- Commerce Electronique (1)

2018, p. 11.

60 Bundesgerichtshof, I ZR 11/16 - Preview III.

copyright? In Renckhoff,

61

the CJEU concluded that

the lack of warnings, disclaimers (and presumably

other contractual restrictions of access) does not

have any legal impact on the application of the right

of communication to the public. This is relevant both

for professionals and for normal, non-professional

users, who do not have any prot-making intention

to make primary communications of copyright-

protected works to the public. The CJEU does

not give an answer to the effect of contractual

restrictions on the Svensson principle of free linking

to content lawfully made accessible on the Internet

without any technological access restrictions. Does

a non-professional linker who does not have any

prot-making intention have to diligently search

for the existence of such contractual restrictions

before linking? Although it could be risky to arrive

at general conclusions, the signicant level of

importance that the CJEU attached to hyperlinking

for the proper functioning of the Internet and for

the exercise of online freedom of expression, could

militate against such an approach.

40 Subsequently, in the GS Media case,62 the prototype

of a “responsible linker” complements the CJEU’s

previous stance in relation to “lawful use” and to

“unlawful sources”. In GS Media, the Court takes a

further step forward and sets the criteria governing

a-user’s liability for copyright infringement,

and specically for the violation of the “making

available right”. The conrmation of the concept

of “lawfulness” of the source/access in relation to

the making available right is a strong indication

that this concept is recognized by the CJEU as

having a horizontal application, since it cuts across

both the right of reproduction and the right of

communication to the public and also copyright

exceptions. The Court’s reasoning is divided into two

parts. Firstly, an assessment is made as to whether

the work was made available with or without the

right holder’s authorization. If the work was made

available without the right holder’s consent, then

the user’s liability depends on whether he knew

or ought to have known that the work was made

available without the right holder’s consent.

41

In the same way as a person who makes a private

copy of a copyright-protected work from an

unlawful source, a person who provides a link to

copyright-protected content, which has been made

accessible without the right holders’ authorization,

cannot be considered as a lawful user of the work.

In the CJEU’s reasoning, a linker is not a lawful

user of a copyright-protected work if that person

knew or ought to have known that the hyperlink

61 Case C-161/17, Land Nordrhein-Westfalen v Dirk Renckhoff,

[2018], ECLI:EU:C:2018:279.

62 Case C-160/15, GS Media BV v Sanoma Media Netherlands BV

and Others, [2016], ECLI:EU:C:2016:644.

2019

Tatiana Eleni Synodinou

30

1

he posted provides access to a work illegally placed

on the Internet. Specically, for prot-making

linking activities, that knowledge is presumed.63 In

so doing, the CJEU’s reasoning introduces elements

of extra-contractual liability law into the core of

copyright law, and thereby signicantly alters the

orthodox stance that copyright is established as

an exclusive property right, the infringement of

which does not take into account the mens rea of the

infringer.64 Indeed, in the CJEU’s view, the question

is no longer simply that of whether, objectively

speaking, an act of communication to the public

occurred: the assertion of the existence of the act

itself is connected to subjective elements, such as

the intention of the potential infringer’s direct or

constructive knowledge. This change is necessary

in the online environment, where it is not possible

for end-users who do not have a direct contractual

relationship with the right holder to investigate and

safely prove that the work is made available to the

public without the author’s consent.

42

The end-user’s constructive knowledge has to

be assessed with reference to the prototype of

the objective standard of the bonus pater familias,

the “reasonable person”, such as this concept is

established in the law of obligations of each Member

State (such as the common law concept of “the

man on the Clapham omnibus” or the French law

standard of the “homme avisé”).65 In this context, for

example, a reasonable and prudent person would not

have expected to access the latest Hollywood movie

for free via an Internet link, and therefore lawful use

will not occur if she/he further provides the link to

the public. Similarly, the deliberate act of advertising

the accessibility of copyright-protected works which

were made available on the Internet without the

copyright holders’ consent, is an undeniable factor

which reverses any argument in favor of the good

faith of the person who provides the links.66

43

While in such a agrant case, it would be fairly

easy to ascertain the unlawfulness of the use, more

complex situations will certainly arise where the

unlawfulness of the source/access will not be clear.

This is the case when, for example, a work was

placed on the Internet with the author’s consent,

but with a contractual prohibition on making it

further available which is not mentioned on the

relevant website from which the end-user accessed

63 Synodinou T., ‘Opinion, Decoding the Kodi Box: to link or

not to link ?’ (2017), EIPR (12), pp. 733-736.

64 Dormont S., ‘L’arrêt GS Media de la Cour de Justice de l’Union

européenne : de précisions en distinctions, l’hyperlien

lui fait perdre son latin…’ Communication Commerce

Electronique (2)’ (2017), p. 17.

65 For the concept of “responsible person” in the common law

of negligence, see: Blyth v. Birmingham Waterworks [1856] 11

Exch 781 ∙ Hall v. Brooklands Auto-Racing Club [1933] 1 KB 205.

66 Filmspeler, supra n.18, par. 50.

the work, and without any technological barriers

to accessing the work. Even though in such a case,

it would not have been possible for a reasonable

person to be aware of the contractual prohibition,

the dependence of the assessment of the user’s

liability on complex legal reasoning would certainly

be a deterrent factor against the use of the work. As

the CJEU has not specically dened the prototype

of the “reasonable user”, this assessment will have to

be made on the basis of the variant relevant national

legal standards.

44 It seems that for the CJEU, the delicate delineation

between “lawful” and “unlawful” use will be decided

on the grounds of the fundamental “fraus omnia

corrumpit” legal principle. A manifestly illicit act

(an unlawful source/access, the making available of

the work without the right holder’s authorization)

is enough to contaminate the entire chain of

reproductions and communications to the public of

copyright-protected works, and even to rule out the

application of copyright exceptions and limitations.

Unless the use has been authorized, only those acting

responsibly and in good faith could avoid liability and

be considered as lawful users. Furthermore, there is

a signicant differentiation regarding the burden of

proof of knowledge that the work was made available

without the right holder’s consent. The knowledge is

presumed in the case of professional users (such as

professional linkers), while the right holder carries

the burden of proof for ordinary end-users who use

the works in the context of a non-prot activity.

45

Indeed, a higher standard of care is generally expected

from professionals in a specic eld. So, while it is

not absurd to pretend that online newspapers check

whether the content they link to is authorized, no

one could ever think that private users could always

check and be aware of the legal status of the content

they link to.

67

Nonetheless, the distinction in practice

will not always be straightforward. The GS Media

decision does not dene the criteria which will be

used to assess the prot-making activity (whether

the link itself should generate prot, whether the

website as a whole is ‘for prot’, whether the fact

that the person creating the link is a commercial

party is sufcient for the purpose of the ‘for prot’

criterion).68 Furthermore, the dichotomy between

the “professional” (prot-seeking) and “non-

professional” linker is an articial one, where both

prot-seekers and amateur information providers

are formally protected equally by freedom of

67 Bellan A., ‘Compared to Svensson, GS Media is not that bad

after all’ (2016) Available via

com/2016/10/compared-to-svensson-gs-media-is-not.

html>.

68 Lokhorst G., ‘GS Media in the National Courts: Fresh Issues

on the meaning of for prot’, (2017) Available via

copyrightblog.kluweriplaw.com/2017/01/17/gs-media-

national-courts-fresh-issues-meaning-prot/>.

Lawfulness for Users in European Copyright Law

2019

31

1

expression, under Article 10 of the European

Convention on Human Rights. It is also questionable

whether this distinction is compatible with the Berne

convention, but it is worth mentioning that the

concept itself is not a novelty in European Media law.

For instance, in the Pihl

69

case, the ECtHR ruled that a

non-prot blog operator is not liable for defamatory

users’ comments in case of prompt removal upon

notice. The process of ascertaining the prot-making

nature of the activity has to take into consideration

the particularities of the Internet. In this context,

nancing by means of advertising revenues linked

to the website’s trafc appears on the face of it to

fall within the scope of prot-making activities.70

46 Moreover, another question is whether and to what

extent the lack of knowledge or of negligence of a

user with a non-prot activity could generally be

used as a decisive factor for denying her/his liability.

Indeed, the issue at stake is that of whether the

ndings of the GS Media case as regards individual

non-professional users could be applied more

generally in relation to the reproduction and/or

communication to the public of copyright-protected

works which are accessible on the Internet with no

technical constraints. The Advocate General Campos

Sánchez-Bordona, in his Opinion on the Renckhoff

case,71 clearly favored such an approach. The case

concerned the posting by a pupil, on a school’s

website, of a photograph which had been published

on another website with the author’s consent and

was freely accessible on the Internet. In the Advocate

General’s view, even though this case has to be

distinguished from the GS Media case (which involved

the question of hyperlinks to protected works that

were freely available on another website without the

copyright holder’s consent), the reasoning in the GS

Media case concerning the subjective component of

the behavior of persons with no prot motive could

be extrapolated, mutatis mutandis, to the Renckhoff

case. Indeed, it may be difcult, “in particular for

individuals”, to ascertain whether the copyright

holders of works on the Internet have consented

to their works being posted on the site concerned.

On the basis of the foregoing, the Advocate General

had opined that neither the pupil nor the school

had communicated the photograph to the public.

On the other hand, it was suggested that there will

be communication to the public where the copyright

holders give notice that the work to which access

is being provided has been “illegally placed on the

Internet” or where access to the work is provided

in such a way that users of the website on which it

69 ECHR, Rolf Anders Daniel PIHL against Sweden, 9 March

2017, app no 74742/14.

70 See the “Pirate bay” case: Case C-610/15, Stichting Brein v

Ziggo BV and XS4All Internet BV, [2017], ECLI:EU:C:2017:456.

71 Opinion of the Advocate General Campos Sánchez-Bordona

delivered on 25 April 2018, Case C-161/17, Land Nordrhein-

Westfalen v Dirk Renckhoff, [2018], ECLI:EU:C:2018:279.

is posted can “circumvent the restrictions taken by

the site where the protected work is posted or where

the author has notied the person seeking to publish

his photograph on the internet that he does not give

his consent”.

47

However, the CJEU did not follow the Advocate

General’s Opinion.72 By clearly distinguishing

this case from GS Media, it held that the posting

by the pupil of the photograph required a new

authorization by the author. As the CJEU stressed:

“unlike hyperlinks which, according to the case-

law of the Court, contribute in particular to the

sound operation of the internet by enabling the

dissemination of information in that network

characterised by the availability of immense

amounts of information, the publication on a website

without the authorisation of the copyright holder

of a work which was previously communicated on

another website with the consent of that copyright

holder does not contribute, to the same extent, to

that objective”.73

48 Furthermore, for the Court to hold that the posting

on one website of a work previously communicated

on another website with the consent of the copyright

holder does not constitute making available to a new

public, would amount to applying an exhaustion rule

to the right of communication. Lastly, it is irrelevant

that the copyright holder did not limit the ways in

which Internet users could use the photograph,

since the enjoyment and the exercise of the right of

communication to the public may not be subject to

any formality.74 The CJEU safeguarded the preventive

and exclusive nature of copyright. It appears that the

objective to establish a high level of protection for

authors does not permit a liberal interpretation of

the rights of the author in a way that the knowledge

or the negligence of the users is taken into account in

order to deny users’ liability when assessing whether

they have communicated a copyright-protected

work to the public. On the other hand, in the specic

case of links, given their signicant contribution to

the sound operation of the Internet by enabling

the dissemination of information, a more lenient

approach is possible.

49

The CJEU’s stance in Renckhoff is in line with

its previous ndings in the Vcast case, where

the lawfulness of the users’ acts has also been

approached restrictively, by taking into account

the whole context of their access to copyright-

protected works.

75

In the view of the Court, the users

72 Case C-161/17, Land Nordrhein-Westfalen v Dirk Renckhoff,

[2018], ECLI:EU:C:2018:279.

73 Ibid, par. 40.

74 Ibid, par. 36.

75 Case C-265/16, VCAST Limited v RTI SpA, [2017],

ECLI:EU:C:2017:913.

2019

Tatiana Eleni Synodinou

32

1

of a broadcast digital recording mechanism cannot

invoke the private copy exception in order to justify

access to content that is hosted in the cloud by the

recording service. Provided that the same content

can be accessed by various users who subscribed to

the service, the issue of lawfulness of use must be

analyzed not only in light of the application of the

right of reproduction, but also in light of the right

of communication to the public.

76

In this context,

even when online access could be permitted by an

exception to the right to reproduction, the issue of

the lawfulness of the user’s access has to be examined

broadly, in conjunction with the possible application

of other rights, such as the right of communication

to the public.

50

Consequently, in Renckhoff the CJEU closed the

door to a possible application of extra-contractual

liability evaluations when assessing lawfulness of

use in relation to whether an act of the user falls

within copyright monopoly because it has been

communicated to the public without the author’s

consent. However, the CJEU did not examine

whether the GS Media line of reasoning could nd

some application in relation to the assessment of

lawful use on the basis of copyright exceptions and

limitations. Indeed, Renckhoff should not be perceived

as precluding the lawfulness of the users’ acts on the

grounds of copyright exceptions in general terms. In

the present case it was clear that the essay with the

photo was uploaded onto the school’s website, while

the possible application of the educational exception

was not raised by the domestic court. The application

of the educational exception was therefore not

examined by the CJEU, which focused only on

whether an act of communication to the public, with

or without the author’s consent, took place. As stated

in para. 42 of the judgment, “it sufces to state that

the ndings set out in paragraph 35 of the present

judgment, relating to the concept of ‘new public’, are

not based on whether the illustration used by the

pupil for her school presentation is educational in

nature, but on the fact that the posting of that work

on the school website made it accessible to all the

visitors to that website”.

51 Even though the use was deemed unlawful, because

it did not lie outside the scope of the right of

communication to the public, the Renckhoff case does

not preclude that the use might have been considered

lawful on the grounds of the educational copyright

exception. It is noteworthy that the argument has

also been discussed in the ALAI Opinion on this

case,77 where it was stated that in relation to the

76 Jougleux P., ‘Access to works protected by copyright

law’ in Synodinou T. (ed), ‘Pluralism or Universalism in

international copyright law’ (Kluwer Law International,

Alphen aan den Rijn, Netherlands: Wolters Kluwer,

forthcoming in 2019).

77 Opinion on case Case C-161/17, Land Nordrhein-Westfalen

assessment of lawful use by way of illustration for

teaching, the crucial question, from the viewpoint

of the Berne Convention (Article 10(2)), is whether

communication on a website that is accessible to

all Internet users and is not restricted solely to the

school community, can still be characterized as use

by way of illustration for teaching and whether

such use is compatible with fair practice. The ALAI

Opinion concludes that communication of a work

on a website open to everyone, even if it is made by

a school, doubtless exceeds the scope of a broadcast

by way of illustration for teaching. Therefore, article

10(2) cannot justify it. However, it has also been

argued that communication on a school’s website

with more restricted access might prove to be

perfectly compatible with the Convention’s norms.

52 In this context, the Renckhoff case does not answer

the question of whether the unlawful nature of

the source, or more broadly unlawful access to

a copyright-protected work, contaminates all

subsequent uses, and thus necessarily neutralizes

lawful use on the grounds of copyright exceptions as

well. This is because in Renckhoff, the work was made

available to the travel website without any technical

restrictions, with the author’s consent. Therefore,

the source of the photo on the Internet was lawful,

even though the author’s consent was contractually

limited to use on the travel website. Since the

educational exception could apply if the photo

was made available with more restricted access, it

can be deduced that the existence of contractual

restrictions, which constitute in personam limitations

regarding the use of the photograph other than on

the travel website, would not have been a sufcient

legal basis for rendering uses based on copyright

exceptions unlawful. In this context, Renckhoff, like

Svensson, implicitly promotes an “in rem” approach to

the effect of the author’s consent, in the sense that

the presence of the work on a website without any

technical restrictions and with the author’s consent,

could not exclude the lawful use of this work on the

grounds of a copyright exception.

53

Certainly, there is no answer to the question of

whether the existence of express contractual

restrictions on the travel website, in the form of a

disclaimer issued by the right holder or the licensee

(the travel website’s owner) would render use of the

photograph on the grounds of copyright exceptions

unlawful. In this case, the user’s access to the work

via the website containing the disclaimer would be

seen as an implied acceptance by the user of the

terms and conditions of access mentioned in the

disclaimer. Could a contractual restriction of this

type in relation to how much or what part of a work

v Dirk Renckhoff, [2018], ECLI:EU:C:2018:634, Available at:

opinion-land-nordrhein-westfalen-en.pdf>.

Lawfulness for Users in European Copyright Law

2019

33

1

can be quoted or used for illustration purposes for

teaching, render a use that does not respect those

conditions unlawful? Here again comes the question

of enforceability of copyright exceptions against

contractual restrictions and the possible scope and

specically the effect of these restrictions regarding

works found without any technical restrictions on

the Internet. The CJEU dealt with this question in

the Ryanair case only in the specic context of a

database that was not protected under the terms

of the Database Directive, either by copyright or

by the sui generis right, and held that the author

of such a database is not prevented from laying

down contractual limitations on its use by third

parties. It was furthermore concluded that the

author or producer of such a database is not obliged

to safeguard a minimum level of free use of the

database content for the users, such as the right for

a lawful user to extract and reuse an insubstantial

part of the database content for any reason, even for

commercial purposes.

54 Furthermore, the contractual method of delimiting

the use of information has its own inherent limits.

The principle of privity of the contract (or the

principle of the relative force of obligations in

civil law countries) precludes the imposition of

contractual obligations on third parties. So, where

a copyright-protected work accessed by the user

via a website with contractual restrictions which

restrict or neutralize copyright exceptions is

further disseminated on the Internet, the author

or the website’s right holder cannot invoke these

restrictions against third parties who did not access

the work via the website on which it was published

with these restrictions, but accessed it from other

sources where the restrictions were not mentioned.

This is, however, applicable only in relation to

copyright exceptions which have been established as

ius cogens by European copyright law or by domestic

copyright laws.

55 Leaving aside the complex issue of unlawfulness of

use due to contractual restrictions, the basic question

still remains of whether users can invoke copyright

exceptions when they have accessed the work via

an unlawful source, such as where the photograph

had been uploaded to the travel website without

the author’s consent. As the law stands now, there

is no straightforward answer. The unlawfulness of

the source/access would normally render copyright

exceptions unacceptable as a basis for lawful use -

as has already been claried rst in ACI Adam and

later in GS Media - in relation to hyperlinks pointing

to works which have been made available to the

Internet without the author’s consent. Accepting

the contrary would somehow result in “laundering”

the unlawfulness of the source/access via the

mechanism of copyright exceptions. However, even

though it is limited to hyperlinking, GS Media has

also shown that there is a difference between the

status of responsibility to be expected from non-

commercial and from for-prot users. Knowledge

of the unlawfulness of the source is presumed in the

case of for-prot users, while the right holder carries

the burden of proof for ordinary users who use the

works in the context of a non-prot activity. The

importance of hyperlinking for freedom of expression

on the Internet, combined with the technicalities of

this mode of communication (lack of control of the

source of the work, since the linker is pointing and

recommunicating an existing communication) was

crucial in reaching this conclusion.

56 Could a similar line of reasoning apply in relation to

the assessment of lawfulness of use on the grounds of

copyright exceptions as well? In our view, this should

not be excluded with reference to Renckhoff, since

the latter did not deal with this question, but simply

excluded the CJEU’s hyperlinking line of reasoning

only in relation to the assessment of whether a

communication to the public took place with or

without the author’s consent and not in relation to

the assessment of lawfulness of use on the grounds

of copyright exceptions. Certainly, there is no “one

size ts all” approach to all copyright exceptions.

Firstly, in some cases, such as for example in the

case of the exception of quotation,78 the lawfulness

of the source has been expressly established by

law as a condition for enjoyment of the exception.

This was also highlighted recently by AG Spuznar

in his Opinion on the Spiegel Online case, where the

necessity of the prerequisite of the lawfulness of the

rst publication of the work being quoted was rmly

stated because it safeguards the author’s moral right

78 See Article 10 of the Berne Convention: “(1) It shall be

permissible to make quotations from a work which

has already been lawfully made available to the public,

provided that their making is compatible with fair practice,

and their extent does not exceed that justied by the

purpose, including quotations from newspaper articles and

periodicals in the form of press summaries.” See also Article

5(3)(d) of the Directive 2001/29 that authorizes Member

States to allow: “quotations for purposes such as criticism or

review, provided that they relate to a work or other subject-

matter which has already been lawfully made available to

the public, that, unless this turns out to be impossible, the

source, including the author’s name, is indicated, and that

their use is in accordance with fair practice, and to the

extent required by the specic purpose”. As it is mentioned

by Rosati, “quotation has been regarded by some as a

‘right’ (rather than an ‘exception’) because the language

of Article 10(1) of the Berne Convention appears to require

Member States to authorize quotations of copyright

works”. See: Rosati E., ‘Non-Commercial Quotation and

Freedom of Panorama: Useful and Lawful?’, (2017) JIPITEC

8 4. For such an approach see: Goldstein P., Hugenholtz

P.B., ‘International copyright. Principles, law, and practice’,

(OUP:2013), p. 391; Tawk M. J., ‘International Copyright

Law: W[h]iter User Rights?’, in Michael Geist (ed.), In the

Public Interest: The Future of Canadian Copyright Law (Toronto:

Irwin Law, 2005) 66.

2019

Tatiana Eleni Synodinou

34

1

of divulgation.

79

The assessment of the lawfulness of

the source in the event of quotation, but also possibly

in other cases of copyright exceptions, the basis

for justication of which is freedom of expression,

deserves a special analysis through the prism of

fundamental rights. Indeed, the prerequisite of the

lawfulness of the source in this case functions as a

safeguard for protection of the author’s freedom of

expression regarding the decision on whether and

when the work should be released to the public,

which in copyright law is guaranteed through the

author’s moral right. It is noteworthy that this is

expressly recognized by AG Spuznar in his Opinion

on Spiegel Online, where it is stressed that the author’s

exclusive control over his own work is based both

on protection of the author’s personality (moral

right) and on his/her freedom of expression. This

enhanced focus on the fundamental rights basis

of copyright when it comes to the protection of

the author’s moral interests has the potential to

assert moral rights as a powerful limitation on the

dissemination of copyright-protected works on

the grounds of copyright exceptions in European

copyright law. This is also in line with the CJEU’s

ndings in Deckmyn, where the legitimate interest

of authors in ensuring that their works are not

associated with a racist and discriminatory message

has been recognized by the CJEU.80 The prerequisite

of the lawfulness of the source in the quotation

exception, both in Berne and in Article 5 of Directive

2001/29, should however, be interpreted broadly in

the sense that what is important is that the rst

divulgation of the work to the public was made with

the author’s consent or under a compulsory license,

regardless of the means of divulgation (it does not

have to be a “lawful published work” within the

meaning of article 3 (3) of the Berne Convention)81

and, presumably, of possible further contractual

restrictions on it. Since the underlying idea is that

it should be the author’s decision as to whether,

and if so when, he or she wants to render the work

public,82 if the author consented to publication of

the work on an Internet source, such as on a website

or on a public prole on a social media account,

the condition of lawfulness of the source should

normally be met for subsequent uses of the work

on the basis of the quotation exception.

79 Case C-516/17, Spiegel Online GmbH contre Volker Beck, Opinion

(2019), ECLI:EU:C:2019:16, par. 55.

80 Case C-201/13, Johan Deckmyn and Vrijheidsfonds VZW v Helena

Vandersteen and Others, ECLI:EU:C:2014:2132, par. 31.

81 Ricketson S., Ginsburg J., ‘International Copyright and

Neighbouring Rights, The Berne Convention and Beyond’,

(2005) Vol. I, (OUP), p. 785, 786.

82 Lewinski V., Walter M., ‘Information Society Directive,

Article 5’, in Lewinski V., Walter M., ‘European Copyright

Law, A Commentary’ (OUP, 2019), p. 1049.

57

Furthermore, the unlawfulness of the source

should not in any case render a use that is based

on copyright exceptions unlawful and, as a result,

lead to the user being held liable for copyright

infringement. The fact that it may be impossible –

or at least extremely difcult – to know or presume

that the source is unlawful, especially in the case

of sources found online, should be taken into

consideration as part of a holistic assessment of

the user’s liability. In this context, there should be

cases of lawful non-commercial use of a copyright-

protected work accessed via an unlawful source,

provided that, in line with GS Media’s underlying

principle, the user could not reasonably have been

in a position to know or assume the non-manifest

unlawfulness of the source of the work. Conversely,

uses from a manifestly unlawful source would not

qualify as lawful use, even for non-commercial users,

unless there is a specic background which renders

the specic use lawful, such as if use on the grounds

of the exception is absolutely necessary to safeguard

freedom of expression.83 However, according to the

GS Media principles, this benet would not apply to

the use of unlawful sources of copyright-protected

works for news reporting, parody or quotation by

media professionals who operate on a commercial/

prot-making basis, since their knowledge of the

sources’ unlawfulness will be presumed.

58 Is it possible to include in European copyright law

a horizontal analysis of the non-commercial user’s

state of mind in relation to lawfulness of the source

of the work that is being used on the grounds of

a copyright exception, even in cases such as the

exception of quotation, where the lawfulness of the

source is a criterion directly imposed by the Berne

Convention and EU Copyright law? Provided that

this assessment is made in relation to the user’s

liability and not in relation to the scope of copyright

protection (rights and exceptions) such as the

latter is dened in international copyright law, the

introduction into European copyright law of such

an exemption-from-liability clause - in favor of non-

commercial users who could not reasonably be in a

position to know or presume that a source of a work

that they use on the basis of copyright exceptions

is unlawful - would be possible. Clauses which

alleviate copyright users’ liability are not completely

unknown in copyright legislation,84 although these

83 Case C-516/17, Spiegel Online GmbH contre Volker Beck, Opinion

(2019), ECLI:EU:C:2019:16.

84 See for instance Article 13 (6) of the Cypriot copyright law

59/1976, where it is provided that : “(6) At any time in an

action for copyright infringement right it is proved or

admitted that - (a) there was an infringement, but (b) at that

time the defendant was unaware of, but had no good reason

to believe that the he work to which the claim relates is

copyright protected, the claimant shall not be entitled

under this Article to any compensation from the defendant

for the offense but shall be entitled to the benets derived

from the infringement irrespective of the granting or not of

Lawfulness for Users in European Copyright Law

2019

35

1

clauses are often applicable only when calculating

the amount of damages or other sanctions imposed

on the infringer. This clause would be part of a

dynamic concept of lawful use which consolidates

and further advances the existing acquis on lawful

use and lawful source/access.

59

In fact, “lawful use” should be perceived as a exible

concept which allows a comprehensive evaluation of

the user’s acts by taking into account both fairness

and reasonable expectations of responsibility.

Hitherto, the CJEU’s piecemeal elaboration of the

concept of lawful use has established its perimeter

in a one-dimensional format only, by focusing

mainly on the restrictive dimension of lawfulness

and not on its inherent enabling dynamic. However,

lawfulness could also be interpreted openly, in a way

that ensures that legal norms such as reasonableness

and fairness are also taken into account via a variety

of legal mechanisms both inside and outside the

scope of copyright law. It is noteworthy that in his

Opinion in the Spiegel Online case, AG Szpunar argued

that the courts might intervene in exceptional

circumstances to safeguard a fundamental right

(freedom of expression in this case), even in the

absence of a specic corresponding exception (when

the “essence of a fundamental right” is at stake),

since it is within the competence of the legislator

to strike a fair balance between copyright and other

fundamental rights.

85

This nding should not be seen

only as a restriction, but as a hint that it is within

the competence of the EU legislator to shape the

general perimeter of “sensitive” copyright norms

associated with exible and fundamental rights

under a taxonomy of lawful use.

60

This presupposes the consolidation and restructuring

by the EU legislator of the core of the concept

of lawful use, which now appears amorphous.

This dynamic denition should consolidate the

existing acquis on the lawfulness of use through

the elaboration of a denition of lawful use which

is sensitive to fundamental rights, accompanied

by a catalogue of examples of categories of lawful

use.

86

Under such an approach, the problematic of

lawful source/lawful access (gained by contract or

thanks to other legal grounds within copyright, such

any other remedy under this Article”.

85 See on this point: GeigerC. and Izyumenko E., ‘Freedom of

Expression as an External Limitation to Copyright Law in

the EU: The Advocate General of the CJEU Shows the Way’

(2018), European Intellectual Property Review.; Centre

for International Intellectual Property Studies (CEIPI)

Research Paper N°2018-12. Available at SSRN:

com/abstract=3293735> or

ssrn.3293735>.

86 For this approach, see: Synodinou T., ‘Who is lawful user

in European copyright law? From a variable geometry to

a taxonomy of lawful use’, in: Synodinou T., Jougleux Ph.,

Markou Ch., Prastitou Th. (eds.), ‘EU Internet law in the

digital era’, Springer (forthcoming in 2019).

as exhaustion and copyright exceptions) should be

seen as part of a comprehensive assessment of the

lawfulness of the user’s act and of the user’s liability.

This holistic assessment should be made on the

basis of two mutually complementary pillars: a) by

means of a fundamental rights’ analysis of copyright

norms87 combined with the application of abstract

legal principles embodying elements of fairness

and of natural justice, such as interpreting and

performing a contract/license of use in accordance

with good faith or analogous legal concepts such as

“unconscionability” in common law jurisdictions;88

or b) by assessing the users’ behavior on the grounds

of established principles of extra-contractual liability

in line with the GS Media logic and by introducing

an exemption-from-liability clause in favor of non-

commercial users who could not reasonably be in

a position to know or presume that the source of

a work that they used on the basis of copyright

exceptions was unlawful.

61 In this sense, the comprehensive approach could be

used not only to broaden the concept of lawful use

and to avoid unjust effects but could also function

in the opposite direction as an inner restriction

on lawful use itself, in case of misuse. Good faith

and fair practice could be used as criteria to judge

whether lawful use really is lawful or whether it still

remains lawful. This, in turn, would result in losing

the option of invoking the rights of the lawful user

under certain specic circumstances. For instance,

a lawful acquirer – such as a purchaser of a copy of

a software package who stores a back-up copy of the

software on an insecure server to which everyone

has free access – is offering other users of the server,

either intentionally or by negligence, the possibility

to reproduce the program. This user is violating

the principle of good faith and abusing the right

87 For Hugenholtz, the fair balance of copyright with other

fundamental rights, such as freedom of expression, the

right to privacy or the right to conduct business, would be

a source for exibility in European Copyright Law that is

alongside the existing structure of well-dened limitations

and exceptions. See: Hugenhlotz P. B., ‘Flexible Copyright,

Can the Author’s Rights Accommodate Fair Use?’, in: Okediji

R (ed.)., Copyright Law in an Age of Limitations and Exceptions,

(Cambridge University Press,2017), p. 287-289. For the “fair

balance” of copyright with other fundamental rights in

the CJEU’s case law, see: Grifths J., ‘Constitutionalising or

Harmonising? The Court of Justice, the Right to Property

and European Copyright Law’ (2013) 38 European Law

Review 65-78. Available at SSRN:

abstract=2217562>.

88 As Waddams notes, “Good faith, unconscionability and

reasonable expectations are concepts that sound somewhat

similar, and the terms are sometimes used together to signify

(usually with approbation) what might be summarised as a

exible approach to contract law, avoiding rigid rules, and

emphasising justice in the individual case, even at the cost

of stability and predictability”. See: Waddams S. M., ‘Good

Faith, Unconscionability and Reasonable Expectations’,

(1995) 9 Journal of Contract Law, p.58.

2019

Tatiana Eleni Synodinou

36

1

to make a back-up copy of the program and could

also be deemed to be in breach of his duty of care.

Consequently, even if the initial lawful acquisition

of the copy of the computer program has made him

a lawful user, his use could still not be considered as

lawful under these specic circumstances.

62 Additionally, the core of “lawful use” is intrinsically

connected to the broader question of the recognition

and effective protection of users’ interests in

European copyright law. The user of copyright-

protected works has gradually emerged as a new

norm in the CJEU’s case law.89 In this context, in UPC

Telekabel,90 the CJEU stressed the need to safeguard

Internet users’ right to lawfully access information

when Internet service providers adopt measures

to bring an end to a third party’s infringement of

copyright. As Geiger notes, the Court in Telekabel,

“clearly adopted the language of users’ rights as a

counterbalance to the disproportionally extensive

enforcement of copyright”.91 It is noteworthy that

this is the rst time that the CJEU gives a more

concrete substance to users’ rights by accompanying

them with a procedural safeguard, since, as the Court

states, national procedural rules must provide a

possibility for Internet users to assert their rights

before the court once the implementing measures

are known.92 A user could therefore address a

complaint to the court that the specic blocking

method chosen affects his/her fundamental rights.

93

However, the scope of these rights is still imprecise.

Shall this locus standi principle apply exceptionally

only in the case of general injunctions, such as those

provided by Austrian law in the UPC Telekabel case,

or should it be extended to all blocking injunctions,

even the specic ones that are issued by the courts?

89 See, for instance: Case C-117/13, Technische Universität

Darmstadt v Eugen Ulmer KG (‘Ulmer’), [2014], par. 43 ∙ Case

C-201/13, Deckmyn,[2014] (CJEU, Judgment of the Court

(Grand Chamber) of 3 September 2014, par. 26.

90 Case C-314/12UPC Telekabel Wien GmbH v Constantin Film

Verleih GmbHand Wega Filmproduktionsgesellschaft mbH (‘UPC

Telekabel’) [2014], Judgment of the Court (Fourth Chamber)

of 27 March 2014).

91 Geiger C., ‘Copyright as an Access Right, Securing Cultural

Participation Through the Protection of Creators’ Interests’

in R. Giblin, K. Weatherall (eds.) What if We Could Reimagine

Copyright?, (Canberra, ANU Press, 2017), pp. 73-109; Max

Planck Institute for Innovation & Competition Research

Paper No. 15-07. Available at SSRN:

abstract=2643304>.

92 Synodinou T., ‘Intermediaries’ liability for on line copyright

infringement in the EU: evolutions and confusions’ (2015)

31 Computer Law and Security Review, 57-67.

93 Savola P., ‘Website blocking in copyright injunctions:

a further perspective’ (2014). Available at:

the1709blog.blogspot.com/2014/03/website-blocking-in-

copyright.html>; Savola, P. ‘Proportionality in Fundamental

Rights Conicts in National Measures Implementing

EU Law’ (2014). Available at SSRN:

abstract=2432260> or

ssrn.2432260>.

63

The effective safeguarding of lawful users’ rights

necessarily presupposes a number of structural

changes in the copyright ecosystem, both at a

substantial and at a procedural level. First, copyright

exceptions should be established as real lawful

user’s right in the sense that they are jus cogens that

cannot be overridden by technological protection

measures (TPMs) and by contracts. This change must

be accompanied by the introduction of procedural

mechanisms, such as the establishment of locus

standi of lawful users to bring a claim before a court

against the neutralization or restriction of copyright

exceptions, and the establishment of out-of-court

redress mechanisms for the settlement of these

disputes. This is also the path that has been taken

by Article 17 (former Article 13) of the Directive

on Copyright in the Digital Single Market, where

it is provided that various mechanisms shall be

established by the Member States in relation to the

effective enjoyment of copyright exceptions by users

of the services ofine providers. First, an obligation

is imposed on online service providers to establish

complaint and redress mechanisms in order to

safeguard the effective enjoyment of quotation,

criticism, review and parody. Furthermore, Member

States should also ensure that users have access to

out-of-court redress mechanisms for the settlement

of disputes, which should allow these to be resolved

impartially. Users should also have access to a court

or other relevant judicial authority in order to assert

the use of an exception or limitation to copyright

rules.

E. Conclusion

64

The concept of lawful use could be seen as an

oxymoron in EU copyright law. On the one hand, it is

used as a means for restricting the use of copyright-

protected works, in the sense that there is a trend

towards only lawful users being able to avoid liability

for copyright infringement when accessing or using

works. On the other hand, the effective enjoyment of

copyright exceptions has hitherto been safeguarded

only for lawful users, since lawful users are the only

ones who enjoy exceptions in terms of user rights,

which cannot be overridden by contract. The two

facets of the concept of “lawful user” are organically

interlinked. Indeed, the concept of “lawful user”

makes sense if, in addition to being subject to

obligations, the lawful user also possesses certain

rights, in the sense that copyright exceptions are

mandatory.

65

The concept of “lawful use” rst made its appearance

in sectoral EU copyright legislation in relation to

information goods. It also appeared sporadically

in various EU copyright provisions in the eld of

copyright exceptions. Even though the concept is

Lawfulness for Users in European Copyright Law

2019

37

1

marginal in EU copyright legislation, the CJEU has

implicitly consolidated the concept of “lawful use”

and expanded its application in relation to the main

economic rights granted by copyright law for all

categories of works.

66 The EU law principle of legal certainty is based on

the fundamental premise that those who are subject

to the law must know what the law is in order to

be able to plan their actions accordingly, so that

they can have legitimate expectations, otherwise

they will regard the law as arbitrary.94 In this

context, it is vital to favor a dynamic denition of

the concepts of “lawful user” and of “lawful use” in

European copyright legislation. This denition shall

consolidate the existing acquis on the lawfulness of

use through a taxonomy of lawful use. This taxonomy

could be based on a broad denition of lawful use

accompanied by a catalogue of examples.95 The

concept must be claried and given a broad meaning

in order to cover both uses which are authorized by

the right holders, but are also not restricted by law,

by taking into account the legal ideals of fairness and

reasonableness. This change must be accompanied

by the recognition of all copyright exceptions as jus

cogens and the establishment of effective procedural

mechanisms to safeguard the enjoyment of lawful

users’ rights

67

In the author’s view, the dual function of the concept,

which acts both as an enabling and as a restrictive

clause, has the potential to provide an enhanced

calibration of the interests of both copyright holders

and users.

94 Tridimas T., The General Principles of EC Law (OUP, Oxford

2000), p. 163.

95 For this approach, see: Synodinou T., ‘Who is lawful user

in European copyright law? From a variable geometry to

a taxonomy of lawful use’, in: Synodinou T., Jougleux Ph.,

Markou Ch., Prastitou Th. (eds.), ‘EU Internet law in the

digital era’, Springer (forthcoming in 2019).