Digital Constitutionalism and Copyright Reform: Securing Access through Fundamental Rights in the Online World

Fundamental Rights are the constants in many constitutional orders. They provide stability, continuity in values and encapsulate the normative skeleton of society. Especially in times of change, they serve as guiding principles for citizens, governments, and the judiciary if push comes to shove. Among the many examples in which fundamental rights have demonstrated their value and essential function, recent reforms in European copyright law have underlined their importance for the European legal order. They have informed important debates and will continue to do so in the coming years. Courts have reshaped and defined the boundaries of exclusive rights to protect the core values of the constitutional order (see Geiger & Izyumenko 2014; Geiger & Izyumenko 2020). Fundamental rights have helped to adapt rules shaped for the analogue world to the digital environment.

In this post, we highlight two examples demonstrating the essential function fundamental rights can – and must – play in guiding activities in the digital world. These examples demonstrate new ways of using fundamental rights to regulate technological developments, secure creativity and access to information, and offer new spaces of democratic participation. In this sense, they are good illustrations of the constitutionalization of the online environment. In short, looking at copyright reforms in the online world from a fundamental rights perspective is a manifestation of what is being conceptualized as “digital constitutionalism” (Pollicino et al.; de Gregorio & Pollicino 2021; de Gregorio 2020).

The adoption of the Directive on Copyright and related rights in the Digital Single Market (Directive (EU) 790/2019, hereafter CDSM Directive) brought about essential changes in the distribution of rights and responsibilities in copyright law. It introduced new roles for actors who constituted the internet infrastructure and entrusted them with tasks that directly affect users’ fundamental rights online. The Directive also created new rights for users, which, however, have been criticized for their restrictiveness and inherent limitations. The role fundamental rights have played in this process, and will inevitably play in exposing some of the shortcomings of this reform, is important and helps provide constitutional legitimacy to the reshaping of EU copyright law.

The introduction of Article 17 CDSM Directive, which reforms the liability exemptions for certain types of platforms, brought fundamental rights to the fore. This confusingly drafted provision that tries to strike a delicate balance between several established fundamental rights left many questions unanswered. The answers will have to be found by examining how fundamental rights interrelate and interact. The process that led to the adoption of Article 17 and the discussions that followed illustrated different understandings of the substance, relations and hierarchies between the fundamental right concerned.

An action for annulment brought by the Republic of Poland against certain parts of the provision (Case C-401/19), the Opinion of Advocate General Saugmandsgaard Øe in the annulment procedure (see also the fundamentally different understanding in the hearing in Case C-401/19: Keller 2020) and the Guidance issued by the Commission (following Article 17(10) CDSM Directive), all reflected different views on the interpretation and practical application of a crucial provision. It cannot be understated that this norm will significantly influence the way European citizens have access to copyright-protected material and communicate and express themselves online (see Geiger & Jütte 2021). At the core of the current uncertainty lies the question of who will be responsible for guaranteeing fundamental rights online: online platforms or public institutions?

A second example is the new exceptions for text-and-data mining in Articles 3 and 4 CDSM Directive. These exceptions permit the collection and storage for text and data mining of works protected by copyright to which the user has lawful access without obtaining prior authorization from the copyright owners. This will enable researchers whose activities fall within the scope of the exceptions to generate datasets. They will facilitate other new and important economic activities, including developing applications and training processes for artificial intelligence systems (Geiger 2021). Their introduction highlights the importance of research for creating an innovative digital market in the EU.

However, these exceptions’ restrictive scope and potential technological override already provide arguments for a revision based on fundamental rights, mainly by constructing a right (to research) out of existing fundamental rights such as freedom of information, freedom of art and science freedom of expression and others. It could even lead, in the mid-term, to inform constitutional reforms since the current constitutional framework for intellectual property in the EU does not provide the appropriate tools to ensure an inclusive, innovative and creative environment, and that also promotes cultural participation. The creation of ‘new’ fundamental rights is not unprecedented. The right to conduct a business is of relatively new provenance; it is not even included in the ECHR. New circumstances and phenomena can arguably justify the creation of new fundamental rights or the rearrangement or consolidation of existing rights.

Whether the mining of text and data for research purposes can be efficiently conducted depends on shaping the scope of the right (recognized within a constitutional order) to engage in such activities. Arguments for an extensive interpretation of the scope and reasonable implementation of a right to mine data and text can be bolstered with substantive fundamental rights. This framework will either redefine the existing understanding of the IP clause in the Charter Article 17(2) (Geiger 2021) or serve as a proportionate counterweight against assertions of competing fundamental rights, such as the right to (intellectual) property.

However, the construction of new fundamental rights must be approached with care for the same reasons that a balancing of competing fundamental rights must be conducted carefully. A ‘right to research’ (arguably already contained in the right to academic freedom read in conjunction with other fundamental rights) must be properly rooted in and grown out of our national and international fundamental rights traditions. However, a discussion over such a right can be fruitful and valuable in exposing the fault lines created by digital disruption in the balance in copyright law and many other areas of the law for that purpose. Developing fundamental rights, whether new ones or the relations between existing ones, to make them fit for digital changes is essential and a task that will determine whether digital technologies can be discussed with the language of fundamental rights.

The difficulty in evaluating and interpreting existing law and conceptualizing new fundamental rights in a digital context or against the background of a digital setting cannot lead to uncritical digitization of fundamental rights. It needs to be assessed if the possibilities and realities of digital realms justify a separate fundamental rights doctrine. While digital technologies are certainly not exempt from the rule of law, including fundamental rights, neither should fundamental rights work differently in different contexts. Their appreciation might differ based on contextual factors; their methodology and substance cannot. Fundamental rights must function as connectors between analogue and digital contexts.

Ensuring the temporal continuity and careful and steady development of fundamental rights, their substance and their inviolable essence is a public function. The bodies considered guardians of fundamental rights – the European Court of Human Rights, the European Court of Justice, and the national constitutional courts – must ensure that constitutional traditions are carried forward into the digital domain. This public function cannot be left to the private operators, and legislative intervention must be considered cautiously.

In conclusion, we argue that reflections on digital constitutionalism need to be urgently introduced when envisaging the current and future copyright reforms and, more generally, the legal regulation of the online environment to inform sound policies and judicial guarantees for the fundamental rights of citizens. It calls for innovative ways to establish closer links between potential regulation authorities to be created in the context of ongoing legislative changes (such as, e.g. the CDSM and DSA, see Frosio & Geiger 2021, Geiger & Jütte 2021, Geiger & Jütte 2021) with fundamental rights discourse and to secure procedural mechanisms that would allow the enforcement of user rights, in particular in the field of research.

The recognition of user rights and their enforceability in the digital environment can be seen as one of the ways to re-establish the interests of ordinary users of copyright content not only and not so much vis-à-vis the State, but rather against powerful private actors involved in the digital environment regulation. Thus, “considering the enforceability of copyright limitations in the online world as a procedural safeguard for fundamental rights of users can be seen as a materialization of what digital constitutionalism can add to the debate, and it is expected that user rights will be increasingly considered as an important constitutional counterpart to the rise of control exercised by private actors over access and use of copyright-protected content” (Geiger & Izyumenko 2021). However, this will be difficult to put into practice if the constitutional framework for IP in the EU continues to be ill-conceived; therefore, in order to better foster and maintain constitutional legitimacy in digital contexts in the sense of digital constitutionalism, more ambitious reforms at a constitutional level will be needed in order to secure a vibrant and inclusive creative environment in the EU.