Digital Libraries Under EU Copyright Law: A Relationship Set in Stone?

Abstract

Digitisation – and its implications for the creation and dissemination of cultural content – has been on the EU policy agenda for decades, notably in the field of copyright law. Yet, despite modernisation efforts from the 1990s onwards, the “library privilege” – i.e., the provisions regulating library functions – persistently focuses on physicality. For instance, the consultation of digital materials remains confined to library buildings. Given the increasing options for remote access to content, it is questionable whether this focus still works in the digital information society. Therefore, this Article aims to critically assess, first, whether EU copyright law is currently future-proof taking into consideration digital library developments on the one hand and copyright modernisation efforts on the other. It finds that the most recent addition to the EU copyright acquis, the Digital Single Market Directive (2019), offers some openings for interpretative space to accommodate the library’s evolving side. Second, in addressing the research and policy agenda for the years to come, the Article offers a way of thinking about a copyright law that flexibly balances right holder, library and user interests. Seeing that copyright law and libraries share goals in the organisation and dissemination of information, the argument is made that their relationship should not be “set in stone”: rather, copyright law should facilitate remote access at least to some extent. While the historical focus on physicality may have been intended to prevent the library privilege from becoming too broad in scope, this delineation rationale should be operationalised differently.