The European Copyright Society has published a new Opinion on “The concept of lawful access and its implications for user freedoms in the EU copyright acquis”. The Opinion was lead-drafted by CREATe colleagues and collaborators Thomas Margoni, Martin Kretschmer, Axel Metzger, João Pedro Quintais and Tatiana-Eleni Synodinou.
Executive Summary:
“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 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.”
Read the full opinion here:
Further details about the workings of the European Copyright Society, and recent conferences are available here:
10th Annual Conference of the European Copyright Society – Château de Versailles, 29 May 2026
9th Annual Conference of the European Copyright Society – Glasgow, 16 May 2025