The Right of Access in Digital Copyright: Right of the Owner or Right of the User?

Abstract

In the last decade, copyright scholarship has been suggesting the existence of a new right in copyright law: the right of access -- that is, the right to control access to copyright works for the rightholder, and the right to access copyright works for the user. According to some authors, this new right was effected through the implementation and the legal protection of technological protection measures (TPMs). On the other hand, advocates of freedom of expression suggest that users have the right to access and use copyright works.This article investigates whether a right of access exists either for owners or users of copyright works in the European Union (EU) law or international law impacting on it. It finds that no express reference to a right of access can be detected, on either side. However, the EU Copyright Directive (EUCD) gives de facto copyright holders the possibility of controlling access and use of copyright works beyond their exclusive rights, which is not counterbalanced by a user’s right of access in the occurrence of copyright limits. Legislative action therefore needs to be taken to re-establish this balance. This action can be shaped by universal principles recognized in international human rights treaties and charters. From both owners’ and users’ side, the limits of the right of access can be drafted by bearing in mind the ultimate goal of copyright protection: the circulation of culture.