Tatiana Synodinou (University of Cyprus) has posted Access Restrictions in a Dematerialized World: An EU Copyright Law Perspective on SSRN. Here is the abstract:
Digitalization has radically transformed the way we understand and enjoy property. The function of property has 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. 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 trespass” 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”, also been subject to the same principles and philosophy. Before digitalization, access controls to the intangible work or other copyright-protected subject matter were exercised through the physical control of the tangible medium incorporating the work (the book, the videotape, the cassette tape). The dematerialization of the medium has created the need to exercise the control over the works in immaterial ways, through technological means. The rise of the Internet and file sharing led to an increase in digital piracy and to the significant development and application of digital rights management (DRM), which has gradually become standard for the distribution of digital content. DRM is a flexible concept and comprises any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorized by the right holder. The reality of controlling the use of works has been viewed by legal commentators as the foundation of a new legal prerogative that exceeds the limits of the classic legal monopoly. This is the right of access or, more generally, the right of use, which is the legal expression of the control of the "consumption" of works. Access restrictions in copyright law have been linked to the history and the controversies of traditional DRM: incompatibility and interference with usage, technical difficulties, even de facto control of uses out of the perimeter of the copyright monopoly on the basis of an exception, the term of copyright protection or the inherent limitations principle of non-protection of the ideas and no protection for facts and simple information. However, nowadays the control of access (or, if we want to use more doctrinal terms, the “right of access”) is materializing in new and various ways. In a dematerialized world, access restrictions mechanisms might have become more flexible and user-friendly, but they still trigger debates on the stifling of creativity, innovation, consumer rights and the social construct of copyright. I have divided my presentation into three parts. This division is inspired by the three classic dimensions regarding the application of law: the person, the place and time. By analogy, the concept of “access restrictions” has evolved into a complex techno-legal reality which comprises these dimensions: personal (who is authorized to have access by the right holder), geographical (for which territory the access is or is not permitted), and temporal/chronological (when and for how long the access is or is not permitted). Accordingly, in the first part of this article, the implicit legal recognition of the access right through the broad interpretation of the right of communication to the public by the Court of Justice of the European Union (CJEU) is analyzed (1). The second part focuses on the geographical dimension of access restrictions in the EU (mainly geo blocking and its impact on EU copyright law) (2). The third part explores the temporal dimension of access restrictions and specifically their impact on the EU cultural sector (3).
