Copyright as an Access Right: Concretizing Positive Obligations for Rightholders to Ensure the Exercise of User Rights

Abstract The legal frameworks that govern access to information are essential for safeguarding a sustainable, creative ecosystem. Institutions, such as libraries, research organizations, educational and other cultural heritage institutions, are gateways to diverse collections of scientific production, media and other cultural artefacts. Enabling access to creative works requires careful balancing of the interest of creators, producers of information, publishers and users of that information. While copyright law has traditionally recognized that rightholders enjoy exclusive rights, courts have only recently emphasized that users of works must also enjoy rights, which better reflects that copyright is based on a social contract with reciprocal obligations. This study explores what positive obligations must be imposed on rightholders as a consequence of the rights users enjoy under copyright law. Although specific access-enabling mechanisms already exist in EU copyright law, they are often not properly implemented or lack efficient enforcement tools. For that purpose, certain exceptions and limitations must be made mandatory, prohibitions on contractual override must apply horizontally, privileged institutions should enjoy enforceable rights to obtain copies on reasonable terms, and the existing ‘lending’ right must become a ‘right to lend’. Supporting these substantive changes is the proposal for a new governance structure for the EU copyright framework through the establishment of an independent EU regulatory body. It is only through a blend of changes that copyright can serve society and that a sound ecosystem for creators and creativity is set up making the EU fit for the knowledge economy.