Copyright in the Age of Access to Legal Digital Content : A study of EU copyright law in the context of consumptive use of protected content

Abstract: In a world where copyright is being infringed in a plethora of ways, consumers find it difficult to access legal digital content. Therefore, this thesis investigates how copyright law governs access to legal content in the digital environment in respect of so-called consumptive use. By apprehending a user-centric approach I evaluate whether and how copyright law accounts for the consumer interest to access digital content that originates from an authorised online service. EU copyright law, especially the InfoSoc Directive, constitutes the legal frame of analysis, but the study also observes national law where references are warranted. Legal reasoning is complemented by economic arguments and a technological perspective for a more informed and market-based evaluation. These insights expand the limits of analysis, making it possible to carry out an evaluation against what I call copyright exclusivity - the accumulated bargaining power consisting of exclusive rights conferred by copyright law that apply at both ends of the content distribution chain, and opportunities to regulate and diversify technical conditions for access with DRM systems. Moreover, these insights allow viewing the notion of access in two distinct ways – as a matter of possibility to enjoy already acquired content, and as a matter of supply of digital content, involving general and diverse availability of content on a market and which is accessible to the consumer.Accordingly, the investigative effort relies on two internal approaches to structure copyright rules that are evaluated. The first one is the conventional approach to consumer interests that centres on the system of copyright limitations. In this respect I evaluate the viability of consumptive limitations in the digital environment against copyright exclusivity, considering the private copying limitation and the temporary copying limitation. The second approach I introduce in the thesis and call it the newfangled approach to consumer interests. It centres on mechanisms outside the system of limitations, particularly as introduced by the Cross-Border Portability Regulation and the doctrine of exhaustion, which are evaluated using a benchmark of continuity of access to content. The study demonstrates that the different mechanisms that copyright law contains within and outside the system of limitations are suitable for ensuring access to legal content, however the evaluation leads to a formal rejection of most of them under the current legal framework. Against this the thesis proposes to formulate future copyright policy on the basis of especially a consideration of the interests of copyright users and the unpredictable nature of the use of technology for content delivery and access control. Beyond the user centric approach focusing on consumptive use of legal content, the overall scientific contribution of the thesis is the systematisation of copyright protection, the system of limitations, and fundamental rights in light of new case law, as well as a comprehensive assessment of the Cross-Border Portability Regulation. Moreover, the thesis proposes a novel approach to the question of digital exhaustion set in the context of the so-called making available right.