Time and Access to Copyright-Protected Works in the Digital Age

Digitalization has radically transformed the way we understand and enjoy property. The function of property has also changed. It has been transformed into a right to administer access to resources, such as experiences or functionalities. In other words, we do not need physical possession in order to enjoy it.¹

The concept of property is intrinsically linked with the idea of control over an object. This control and the declaration of the intention to exercise this control can take various forms – from lockers to walls, fences or “no trespassing” warnings, the holder of the right sets the terms of access to the property by third parties.

Copyright law, as a special kind of “property”, has also been subject to the same principles and philosophy. Before digitalization, access controls to intangible works or other copyright-protected subject matter were exercised through the physical control over the tangible medium incorporating the work. The dematerialization of the medium has created the need to exercise the control over works in immaterial ways. Nowadays, the concept of “access restrictions” has evolved into a complex techno-legal reality that triggers debates on the stifling of creativity, innovation, consumer rights and the social construct of copyright.

Indeed, dematerialization has transformed not only the way by which we obtain access to copyright-protected content, but also when and for how long we can preserve access. The disappearance of the tangible copy is a defining 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 In this context, the need to access a tangible copy of an intellectual creation in the analogue world has been replaced by access to the work itself.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.²

Traditionally, the purchase of the tangible copy of a work afforded the buyer or every subsequent lawful acquirer of the tangible copy the possibility to enjoy the work as long as the physical object incorporating the work exists. However, the shift from a market of goods to a market of services has changed this paradigm.

There is a dominant personal and temporal dimension to the online access of content. Most digital media and services platforms’ terms of service agreements do not allow accounts to be transferred to others.³ The subscriber’s successors in law do not inherit the subscription and, therefore, their access to the content is not guaranteed. Downloads can be used only by the subscriber and often for a specific period after the download.

The idea of “permanence of use” is vanishing. The user’s access to the work is safeguarded as long as the service is offered, and the user often does not have a right to enjoy the work after the subscription contract is terminated. Similarly, perpetual access to digital content by libraries and cultural organizations is guaranteed only as long as the subscription contract is valid or if the subscription enables libraries to obtain their own digital copies or the right to continued access after the cancellation of the subscription.⁴

In a dematerialized world, the disappearance of the market entails the risk of the disappearance of the work itself. The access to a work depends on the willingness of the service provider to continue to offer the work, and this decision is taken on a purely commercial basis. Access to videogames, music or films, which are not already part of the public domain, may be lost forever if the service provider decides to stop offering it. This could seriously endanger cultural diversity, creativity and the preservation of cultural heritage.

For instance, old videogames can easily become an abandonware game or an out-of-commerce work. While the role of digital video game marketplaces might be significant since they gather thousands of videogames, the range of works found in these marketplaces is dependent on the will of the publisher and the licence agreements between the video game publisher and the digital video game marketplace.⁵

The possession of a copy of the work by private individuals, libraries and cultural organizations has traditionally served an important role in the preservation of the cultural asset and access to it. Indeed, intellectual access to works in the public domain, their enjoyment and their use presuppose prior material access to these works. Material access to works is made possible and regulated either by the right of ownership of the original form of the work, or by concluding a contract with a distributor in order to obtain a material copy of the work.⁶

Nevertheless, in a dematerialized world, the prototype of a permanent copy of the work for the benefit of the user is replaced by the model of a “user’s right” to access a work for a limited time.

This change of paradigm endangers the implicit dogma that copyright law shall ultimately serve access to culture in the long term.

In light of this, a new copyright regime for out-of-commerce works was established by Arts. 8–11 of the Directive on Copyright in the Digital Single Market (CDSM Directive). The new EU legislation has placed an emphasis on the role of cultural institutions in preserving access to dematerialized works.

The CDSM Directive established a dual regime which consists of a combination of a new licensing mechanism and a mandatory copyright exception. Both the licensing scheme and the exception are based on the use of the works without the author’s prior consent. While this is typical for an exception, bypassing the author’s authorization in a collective licensing mechanism necessarily requires that the voice of the natural owner of copyright be able to be effectively heard even at a later stage. In this context, the Directive provides a mechanism which enables authors to opt out from the licensing scheme. It is noteworthy that the right to opt out is also established where the making available of the work is based on the exception.

However, the regime for out-of-commerce works is a special one. It is limited to specific types of works (out-of-commerce works) and by the requirement that the out-of-commerce works be permanently in the collection of the institution.

The criterion of “works permanently in the collection” of a cultural heritage institution (CHI) reflects the prototype of access to works in the analogue world (through the possession or ownership of a physical medium incorporating the work) or a model of access of work as product (through downloading the software, music, film). According to recital 29, this is the case when copies of works or other subject-matter are owned or permanently held by an institution, for example, as a result of a transfer of ownership or a licence agreement, legal deposit obligations or permanent custody arrangements. Even if the concept of “permanence” appears to be broadly construed, the criterion is restrictive and does not reflect the digital reality of access, which is based on the business model of services, it is much more complex and is connected to chronological or other restrictions.

Furthermore, in a dematerialized reality of access to copyright-protected works, it is also important to safeguard the necessary balance between copyright protection and the public domain. The public domain is consubstantial with that of intellectual property: only certain objects may, because they are original or new, be appropriated. This leaves a vast area of unprotected elements that are necessary to creators, inventors, scientists and businesses.⁷

It is within this context that the concept of the public domain has been implicitly accepted as a synonym of free access in copyright law. The use of works in the public domain is deemed to be free for all. In other words, no one cannot control or prevent their reproduction, communication to the public, or any other use that would fall under copyright law.⁸ On the contrary, copyright law encourages those uses, since one rationale for the public domain is to let anyone use an unprotected work in the hope that doing so will increase the work’s availability, decrease its cost, and allow it to serve as the basis for further authorial creation.⁹

To fully understand the technical and legal challenges, it should be noted that the concept of the public domain is not officially defined or established in European copyright law. The EU legislator merely limits the term of protection in time (the author’s lifetime plus 70 years after his or her death). The concept is broadly conceived negatively as an area where no copyright exists. Therefore, the public domain is mainly understood as the period following the expiry of the term of protection. Furthermore, the expression is used to cover intellectual assets which cannot benefit from copyright protection, for example, because of their lack of originality.

Recital 25 of the Term Directive 2006/116 offers some additional information on this concept. The legislator explains that in case of revival of copyright, if a person undertook in good faith the exploitation of the works at the time when such works lay within the public domain, no payment may be demanded. This implies a principle that the public domain is synonymous with free access to and exploitation of the work, as a general principle of EU copyright law. This would in practice mean that once the work has “fallen” into the public domain, that it is freely available for digitization.¹⁰

The lack of a positive definition and of a clearly established legal status might facilitate the encroachment of the public domain through efforts for its appropriation.¹¹ Indeed, while access to works within to the public domain is by default free, the public is not officially granted or recognized a right to free access to such works in the public domain.

Therefore, the status of the public domain within the EU is characterized by uncertainty. In the era of mass digitalization of cultural goods, it remains unclear whether investments made in digitalization can be rewarded by granting exclusive exploitation rights. Indeed, there is a high risk of reappropriation of works in the public domain on the basis of human, technical, financial investments made by the owner or the legitimate possessor of a work (mainly of a tangible unique artwork) for the digital reproduction of the work and its inclusion in a digital gallery. The creation of a new exclusivity endangers public access to works, which should remain free. Indeed, the reproduction of a work not only provides the public with greater access for viewing and studying it, but also allows and, inevitably, inspires the public to use a work in its reproduced forms in a myriad of ways which are not possible with the original itself.¹²

A solution to this problem, at least for a particular category of works – “Works of visual art” – is given in Art. 14 of the CDSM Directive. This Article prevents the expansion of copyright to “faithful” reproductions of works that are already part of the public domain. In that sense, it supports “access to and promotion of culture” and ensures access to European cultural heritage.¹³ This provision should be construed as a response to attempts to reappropriate the public domain through the appropriation of the digitalization of cultural assets. Art museums are the richest repositories of public domain images being copied and sold, and for a variety of reasons they seek financial and aesthetic control over the public domain images in their collections. For instance, in the 2018 Museumsfotos case,¹⁴ the German Federal Supreme Court was asked to decide whether posting photos on Wikipedia of a museum’s works (paintings) which had fallen into the public domain violated the museum’s copyright. The Court held that the photographs in question were not entitled to normal copyright protection, but they could be protected under German law as non-original photographs. Wikimedia Germany responded to the judgment by saying that the country’s cultural heritage no longer belonged to the public and demanded that the German legislature change the law.¹⁵ This litigation is typical of a deeper attempt to circumvent the principle of the public domain.¹⁶

In this context, Art. 14 of the CDSM Directive takes on a particular significance since, for the first time, European copyright law grants a positive status to works belonging to the public domain by prohibiting the regaining of any exclusivity therein.¹⁷ It should also be noted that while the faithful (non-creative) reproduction of a work in the public domain is not protected, the original incorporation of a work in the public domain into a new work (an adaptation) does result in protection. The criterion between the reproduction and the adaptation is “originality”. In this context, both the specific form of the work (e.g. two-dimensional works or three-dimensional works) and the technology used can be decisive in establishing originality.¹⁸

Both the out-of-commerce regime and Art. 14 of the CDSM Directive are the expression of a greater sensitivity in European copyright law for the safeguarding of access to cultural goods and the preservation of the public domain. However, they are limited, scattered and sectoral solutions to the larger problem, which is the growing control and appropriation of the cultural sector. Robust mechanisms of preserving access to copyright protected content for the purpose of cultural preservation should be established. It might, therefore, be necessary to reconsider the role of CHIs in the preservation and possible dissemination of works for public interest purposes against the danger of the monopolization of access to these cultural assets by private entities. New mechanisms serving the public interest could be explored, such as an obligation for content providers to deposit a digital copy of the work in a CHI, at least for preservation purposes.

Furthermore, European copyright law should take a broader and clear stance in the delineation and the safeguarding of the public domain as a vehicle of creativity and an organic and dynamic part of a sustainable copyright ecosystem. In this context, the line of reasoning and the symbolism of Art. 14 could serve as a model for a more explicit consecration of the public domain and of the significance of free and unhampered access to works which have fallen into the public domain. Indeed, although Art. 14 has a limited scope, since it concerns only works of visual art, it contributes substantially to highlighting the position that access to works in the public domain must be completely free. At the same time, the inconsistencies in the implementation of this provision in some Member States should serve as a lesson to avoid an encroachment of the principle due to the concurrent application of conflicting national laws, which override this principle by imposing exclusive rights over cultural material held in national collections.

This is, for instance, the case with the Greek¹⁹ or the Italian²⁰ provisions implementing Art. of the 14 CDSM Directive. By having safeguarded the application of their national cultural heritage norms in the knowledge that it may prevent the application of Art. 14, they have created a legal conundrum, which the Court of Justice of the European Union might be called upon to resolve.²¹