Right of Communication to the Public in the EU Revisited – What Lesson(s) are in Store for the Future

In 2016, when I started my doctoral journey, the problem of online content availability was already proving to be quite a nuisance. From YouTube’s famous sentence of ‘This video is not available in your country’, to alternative (not so legal) ways of accessing content via Pirate Bay and LimeWire, for example, the proverbial chaos of legal uncertainty of access to content was in full bloom. Stakeholders reacted in two different ways as a result of this legal uncertainty. The first was the initial immobilisation of rightholders, who were unsure whether they had the right to prevent or allow use of their content. As a result, an environment where anything found online could be used without restriction was created. This made it possible for a number of services to grow, including YouTube, Pirate Bay, Napster, and LimeWire. Aggressive lawsuits followed when these services began to significantly reduce rightholders’ income. The second response to this aggressive litigation was the immobilisation of end users, who were now unsure if they were infringing copyright. While some of these services, like Pirate Bay,1 persevered in the face of the new situation, others, like YouTube, modified their business strategy to stay out of legal trouble. Nevertheless, neither of these opposing responses clarified the legal uncertainty around online access, much less how to resolve it.