Who Is a Lawful User in European Copyright Law? From a Variable Geometry to a Taxonomy of Lawful Use

Abstract

This chapter analyses the concepts of “lawful user”, “lawful use” and “lawful access” in European copyright law. These concepts, which appeared in sectoral EU copyright legislation, still remain largely unexplored. Firstly, the emergence of these concepts is analysed, while possible interpretations are discussed. The author rejects restrictive interpretations that result in defining lawful use solely in terms of the private will of the copyright holders, and argues in favour of a uniform and dynamic definition of the concept of “lawful use”, which could include elements of fairness and reasonableness in the rigid EU copyright acquis. The author argues that it is vital to conceive these concepts flexibly to include uses implied by the interpretation of contracts between right holders and users, in accordance with standards of fairness and good faith. Furthermore, it is demonstrated that for the Court of Justice of the EU (CJEU) the concept of lawfulness of use is linked to the mens rea of the user, in the sense that the use will not be lawful if the user was aware—or ought to have been aware—of the manifestly unlawful nature of the copy of the work reproduced or made available to the public.

The insertion of these concepts into European copyright law could be seen as a silent revolution that alters the nature of copyright law and opens the door to a more calibrated co-existence of the interests of right holders and users. However, since the standards of reasonableness and fairness vary among the national legal traditions of the Member States, a uniform legislative definition of these concepts is necessary at European level. The author proposes a taxonomy of lawful use that consolidates the EU copyright acquis on lawful use. The EU taxonomy of lawful use will comprise a horizontal definition of lawful use, accompanied by a list of categories of lawful use, together with a clause of exemption from liability for non-commercial users who are not in a position to be aware of the unlawful nature of the source of the copy that they used based on copyright exceptions.

The author concludes that recognition of the concepts of “lawful user” and “lawful use” injects a new subversive approach into copyright law. These concepts can have a dual function and be used either to reinforce the position of users or to restrict the uses made of copyright-protected works and to make the users liable for copyright infringement. In the author’s view, a necessary pre-condition for a balanced application of these legal norms is the establishment of all copyright exceptions as ius cogens, whose protection could be claimed by users before the courts.