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
SUMMARY

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 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. The article proposes to establish a... (see full summary)

 
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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, <http://digitalcommons.
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: <https://ssrn.com/abstract=2127736>.
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.

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