The concept of lawful access and its implications for user freedoms in the EU copyright acquis: Opinion of the European Copyright Society

The advent of digital technologies and connected patterns of production and consumption has progressively displaced ownership in favour of access as the predominant mode of enjoyment of works of authorship and other information goods. This transition from acquiring physical copies to subscribing to digital services has become prevalent across various sectors and has even enabled new commercial, cultural and scientific practices. However, it also marks a major shift in the theory and function of copyright: it transforms a right primarily concerned with regulating certain exploitations and circulations of works into one capable of controlling individual acts of access and use.

EU copyright law increasingly reflects this shift through conditions of lawfulness. These appear across the acquis in different forms: the “lawful acquirer” in the Software Directive, the “lawful user” in the Database Directive, “lawful use” and “lawful source” in the Information Society Directive and CJEU case law, and “lawful access” in the Text and Data Mining (TDM) provisions of the Copyright in the Digital Single Market Directive (CDSMD). These expressions are not merely terminological variants. They perform a boundary-setting function by determining when exceptions and limitations may be relied upon, and therefore when certain acts may take place without right holders’ authorization.

This function is especially important for text and data mining (TDM), machine learning and the training of AI models. Articles 3 and 4 CDSMD make lawful access a condition for the TDM exceptions, but do not define the concept. Recital 14 CDSMD refers to access based on open access policies, contractual arrangements, other lawful means and content freely available online. Developments under the AI Act and the General-Purpose AI Code of Practice further support the view that lawful access cannot be reduced to 3 prior authorization for each individual work. It must also be assessed by reference to lawful conduct, due diligence and the relevant regulatory context.

The principal risk, surfaced in decisions such as ACI Adam or VOB, is that lawful access, lawful use or lawful source might be equated with right holders’ authorization. An interpretation of this kind would undermine the nature and function of exceptions and limitations. Since an exception presupposes that authorization is not required, making authorization the sole condition of lawfulness would create circularity and deprive exceptions of practical effect.

At the same time, lawfulness cannot be understood as an unlimited permission to access or use protected works. It must operate within identifiable legal boundaries, including effective technological protection measures, valid and enforceable contractual restrictions where not overridden by mandatory law, and other legally binding limits. Its application must also be guided by contextual principles, including the meaning of content “freely available online”, the knowledge and role of the user, the purpose and commercial or non-commercial character of the activity, the applicable fundamental rights framework, and the three-step test.

Accordingly, this Opinion seeks to provide normative and interpretative guidance for courts and legislators by developing a concept of lawfulness that is legally coherent, context-sensitive and capable of preserving the effectiveness of copyright exceptions. The analysis leads to the following five recommendations.

Recommendations:

1. Lawfulness cannot be reduced to right holders’ authorization. This applies in particular to exceptions and limitations conditioned on lawful access, lawful use or lawful source. The text, structure and function of EU copyright law support this conclusion. Since an exception to an exclusive right presupposes that authorization is not required, making authorization the sole condition of lawfulness would create circularity and would risk rendering exceptions ineffective.

2. Beyond authorization by right holders, there are other clear cases in which lawfulness is undisputed. These include situations where the law authorizes the relevant activity, including through exceptions, limitations or other free uses under copyright law or other legal sources; situations that fall outside the scope of an exclusive right; and situations where the relevant exclusive right has been exhausted.

3. Situations not expressly regulated by law require a context-specific assessment. That assessment must respect the hard boundaries of lawfulness, including effective technological protection measures, valid and enforceable contractual provisions or rights reservations, and other legally binding restrictions. It must also be guided by softer interpretative criteria, including whether content is freely available online, the user’s knowledge, the nature and purpose of the activity, the relevant fundamental rights framework and, where applicable, the three-step test. The interpretation adopted must preserve the policy objectives and effectiveness of the rule at issue.

4. Scientific research deserves special treatment within this framework. Article 3 CDSMD reflects a deliberate legislative choice to privilege scientific research through a mandatory exception limited to specific beneficiaries and purposes. In light of the public-interest function of research and its connection to academic freedom under EU law, lawful access should be interpreted in a manner that preserves the effectiveness of that exception and avoids disproportionate source-verification obligations for research organisations and cultural heritage institutions.

5. Other special situations have been identified and further ones may emerge. These include generalpurpose AI, open-source software and AI models, and other contexts in which access, use and lawfulness interact with public-interest objectives, open licensing practices or technological innovation. Such situations should be assessed under the framework proposed in this Opinion. As a general principle, where a new situation warrants treatment comparable to that granted to scientific research, the conditions of lawfulness should be interpreted in a manner that favours the relevant activity, subject to the applicable legal safeguards.

You can read the Opinion in full here.