Over the past two decades, copyright scholarship has increasingly debated the emergence of a new legal entitlement in digital copyright law: the right of access. This concept has been invoked in two competing ways—first, as the right of copyright holders to control access to protected works through technological protection measures (TPMs), and second, as a corresponding right of users to access those works in order to exercise copyright exceptions and fundamental freedoms.
This debate gained prominence with the widespread implementation of Digital Rights Management (DRM) systems and the legal protection afforded to TPMs at both international and European Union (EU) levels. While rightholders argue that access control is indispensable for enforcing exclusive rights in the digital environment, critics contend that these mechanisms undermine copyright limits, freedom of expression, and the circulation of culture.
Now, does a legally recognisable right of access exist for copyright owners or users under EU law and the international legal framework? Well, it's complicated. Although no explicit right of access is formally recognised on either side, EU copyright legislation—most notably the EU Copyright Directive (EUCD)—has de facto enabled rightholders to control access beyond their exclusive rights, without providing users with an equivalent and effective counterbalance. Re-establishing this balance requires normative intervention grounded in fundamental human rights and the original rationale of copyright: the circulation of culture.
Access Control and the Digital Turn in Copyright
Historically, access control has always been implicit in copyright protection. Exclusive rights of reproduction and distribution initially served state interests in regulating knowledge and later allowed publishers to control dissemination in order to recover investment costs. Over time, however, copyright limits and exceptions granted users legally sanctioned access to protected works, creating a structural tension between owners’ control and users’ entitlements.
The digital environment intensified this tension. DRM systems, implemented through TPMs, were designed to enforce exclusive rights by preventing unauthorised copying and access. Their legal protection—introduced through international treaties and later EU legislation—appeared to expand copyright protection by adding a new layer of control: not merely over use, but over access itself.
At the same time, digital technologies facilitated low-cost reproduction and distribution, prompting users to challenge access restrictions, particularly when TPMs prevented acts permitted by copyright exceptions. Because TPMs are technically incapable of distinguishing between lawful and unlawful uses, they often block legitimate access, including to works in the public domain. This has raised concerns about the erosion of users’ rights and the transformation of copyright into an access-based regime detached from its original balance.
International Copyright Treaties and Access
At the international level, access control is primarily addressed through the protection of TPMs under the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), both adopted in 1996. These treaties require contracting parties to provide legal protection against the circumvention of “effective technological measures” used by rightholders.
Crucially, however, the treaties condition TPM protection on compliance with copyright law. Article 11 WCT explicitly limits protection to measures that restrict acts “not authorised by the authors concerned or permitted by law.” This formulation suggests that TPMs should not override copyright exceptions. Although the treaties do not define “effective measures,” their wording implies that access control cannot exceed the scope of exclusive rights.
Similarly, the TRIPS Agreement, while silent on TPMs, requires enforcement measures to avoid abuse and barriers to legitimate use. Read together, international instruments do not establish an autonomous right of access for rightholders; rather, they permit access control only insofar as it enforces existing copyright entitlements.
EU Directives Beyond the EUCD
Several EU directives address access-related issues indirectly. The Software Directive and the Database Directive explicitly allow lawful users to access and use protected works without authorisation where such access is necessary for intended use. The Conditional Access Directive (CAD), by contrast, protects access-control measures for certain information society services, many of which distribute copyright works.
Importantly, the CAD distinguishes access control from copyright protection, framing it as a separate economic interest. While it indirectly benefits rightholders, it does not confer an access right grounded in copyright law itself. These instruments therefore provide fragmented and context-specific access privileges, leaving the EUCD as the central framework governing digital copyright access.
The EU Copyright Directive and the De Facto Right of Access
The EUCD does not explicitly recognise a right of access for either rightholders or users. Nonetheless, copyright scholarship has identified access-related implications in two core areas: the broad interpretation of reproduction and communication rights, and the anti-circumvention provisions protecting TPMs.
The reproduction right under the EUCD includes temporary acts of reproduction, such as RAM copies and caching. This expansion implies that mere access to digital works may constitute reproduction, thereby subjecting access itself to rightholder authorisation. Although Article 5(1) introduces a mandatory exception for certain transient reproductions, its reliance on concepts such as “lawful use” and “independent economic significance” has been criticised for transforming the reproduction right into a general “use right,” extending copyright control beyond traditional boundaries.
Similarly, the right of communication to the public—particularly the “making available” right—has been interpreted by some as enabling rightholders to control initial access to digital works. While this interpretation is contested, it reflects a broader trend toward access-based copyright enforcement in the digital environment.
Most controversially, Article 6 EUCD protects TPMs against circumvention and defines “effective measures” as including access-control mechanisms. Unlike the WCT, the EUCD limits the obligation to accommodate copyright exceptions to a narrow and selective list. This creates a dual system in which TPMs are subject to fewer constraints than exclusive rights, effectively granting rightholders enhanced access control powers without adequate safeguards for users.
Fundamental Rights and the User’s Right of Access
In response to this imbalance, scholars have turned to fundamental rights as a source of users’ access entitlements. International human rights instruments—including the Universal Declaration of Human Rights, the European Convention on Human Rights, and the International Covenant on Economic, Social and Cultural Rights—protect freedom of expression, access to information, and participation in cultural life.
These rights support the circulation of culture and knowledge, which is also the foundational rationale of copyright. While copyright itself is recognised as a human right to the extent that it protects authors’ moral and material interests, this protection is not absolute. Human rights instruments emphasise proportionality, diffusion of culture, and public interest, thereby imposing inherent limits on copyright enforcement.
European jurisprudence reflects this tension. Some courts have confined freedom of expression within copyright exceptions, while others have allowed constitutional principles to override rigid copyright rules in specific cases. This divergence highlights the insufficiency of the EUCD’s closed and optional system of exceptions in addressing access conflicts, particularly when TPMs are involved.
Rethinking Access Through Copyright’s Rationale
The emergence of access control as a central feature of digital copyright represents both an evolution and a potential distortion of copyright law. While access control may be technologically necessary to enforce rights online, it risks undermining the normative foundations of copyright if left unchecked.
The circulation of culture—not the maximisation of rightholders’ control—remains copyright’s ultimate goal. Any de facto access right for rightholders must therefore be strictly limited and counterbalanced by robust user entitlements. This requires reinterpreting existing provisions in light of fundamental principles and adopting legislative reforms to ensure that TPMs comply fully with copyright limits, especially those grounded in fundamental rights.
Conclusion
Neither international treaties nor EU copyright legislation explicitly establish a right of access for copyright owners or users. Nevertheless, the EUCD has effectively enabled rightholders to control access and use through the legal protection of TPMs, while offering users only weak and selective safeguards.
Correct interpretation of copyright law, anchored in the circulation of culture, can mitigate some of these effects. However, interpretative solutions alone are insufficient. Normative action at the EU level is required to realign access control with copyright’s original balance, ensuring that both owners and users can exercise access rights consistent with fundamental freedoms and cultural dissemination.
This blogpost is based on the journal article:
Favale, ‘The Right of Access in Digital Copyright: Right of the Owner or Right of the User?’, 15(1) The Journal of World Intellectual Property, (2012) 1-25
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