Cropped etching of man in a library by Simon Fokke.

New study on positive obligations for rightholders

EU copyright law provides rights holders with powerful tools, in the form of exclusive rights and enforcement mechanisms, that allow them to control the dissemination of essential knowledge goods. In the digital ecosystem, rights holders can exercise these formally legitimate rights to segment access and restrict who can buy and license their digital works. This creates the risk of upsetting the delicate balance of the copyright system, which needs to protect the legitimate interests of creators and the public interest in access to knowledge and information. Today, COMMUNIA and Knowledge Rights 21 are releasing an independent expert study, commissioned to Christophe Geiger (Luiss Guido Carli University) and Bernd Justin Jütte (University College Dublin), which develops the notion of copyright as an access right and identifies positive obligations of rightholders in providing access to their works.

Traditionally, the European copyright framework has focussed predominantly on the exclusive rights that rights holders enjoy which allow them to control the exploitation of their works. However, this only represents one side of the coin. On the flipside, users of works also enjoy certain rights which are rooted in fundamental rights and are crucial to enable education and scientific research. In spite of its recognition as enforceable rights by the Court of Justice of the European Union, these rights are not fully realised as users can struggle to exercise their freedoms in the digital environment.

One group of institutions that is particularly affected in this regard are public institutions, such as libraries, research organisations, educational and other cultural heritage institutions, which act as gateways to diverse collections of scientific production, media and other cultural artefacts. They function as an important distributor of knowledge and information, yet digital formats are not always available to them, at least not under reasonable conditions.

In this independent expert study, the authors examine what obligations must be imposed on rights holders as a consequence of the rights users enjoy under copyright law. The authors call for a better legislative anchoring of access rights which comes with both negative and positive obligations for rights holders ranging from protecting all exceptions and limitations from contractual override to an obligation to facilitate access to works at least by certain privileged institutions.

The full study “Copyright as an Access Right: Concretizing Positive Obligations for Rightholders to Ensure the Exercise of User Rights” by Christophe Geiger and Bernd Justin Jütte is available on our website (PDF file).

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