EU Digital Copyright Law and the End-User

Abstract

The aim of this dissertation is to analyse whether and how EU harmonisation of national copyright law in the digital environment accommodates copyright exceptions by permitting end-users to engage in both transformative and non-transformative use of copyrighted content. The dissertation uses an open notion of “end-user”. Due to the new expressive opportunities and enhanced usage expectations created by the digital environment, the single user is alternatively viewed as a potential consumer of copyrighted digital works, as a user of these works on the Internet, and as a possible follow-on creator, who wishes to build upon pre-existing materials in order to make new copyrightable creations. The thesis argues that the interface resulting from EU digital copyright law, electronic licences and technological protection, as currently envisaged by Directive 2001/29, leads to an implicit transfer - from public to private hands - of copyright regulation as formerly provided by statutory law. The encouragement of this kind of private legislation may considerably diminish the freedom of end-users to interact with copyrighted work released in digital formats, despite the enhanced possibilities that these formats present for creative expression. The dissertation is divided in four parts. Part One explains how the increasing implementation of digital right management (DRM) technologies, despite having the potential to make the access and use of digital works subject to the contractual terms which accompany the protected good, does not weaken the social desirability of exceptions which pursue public policy objectives. Part Two examines the legal framework created by the Directive 2001/29: this analysis seeks to demonstrate that the harmonisation process undertaken in the EU, while, as a matter of industrial policy, affording stronger and immediate protection to copyright holders, does, in fact, ignore the constitutional objectives laid down in the EC Treaty with regard to culture, consumer protection and Internal Market integration. Part Three examines the new condition of the end-user through two case studies which shed light on still-unsettled issues. The first case specifically relates to the Internet as a digitally networked environment where end-users are increasingly able to engage in “peer-topeer” transfer of creative works. The second scenario deals with digital settings where the use of DRM technologies may preclude the effective enforcement of statutory copyright exceptions. Finally, Part Four analyses possible reforms of the EU copyright system, in order to encourage specific solutions to the erosion of end-user opportunities for the legitimate use of copyright material, as a result of digital copyright enforcement efforts. The dissertation concludes that current EU copyright law is unfit to accommodate the legitimate interests of end-users in digital settings. Copyright exceptions should be made mandatory, and, possibly, should be given the status of subjective rights.