Copyright as an access right securing cultural participation through the protection of creators’ interests

Abstract

The paper proposes to (re)conceive copyright as a right of access rather than as a right to forbid or to sanction. It starts from the diagnosis that the social dimension of the institute has been progressively disregarded in favour of individualistic conceptions and of the protection of investment, which would lie at the origin of a crisis of legitimacy. In the first part, it sets out the rationales of this reading: the social function of copyright and its philosophical link to the general interest, and the understanding of copyright through the lens of international fundamental rights, drawing on Article 27 of the Universal Declaration of Human Rights, Article 15 of the ICESCR, clauses of national constitutions and decisions of the European Court of Human Rights. In the second part, it examines the consequences of this conception for the formation and the use of copyright: the balancing of interests as a social contract; the formulation of an inverted three-step test, directed at access to protection; and a flexible interpretation of the test of Article 5(5) of the Infosoc directive. It concludes that copyright regimes must secure to creators a fair share in the proceeds of the commercial exploitation of their creations.