Designed for Atoms, Broken for Bits: How Copyright Law is Locking Europe Out of Its Own Knowledge
Imagine inheriting a magnificent library. Shelves floor to ceiling. Rare manuscripts, out-of-print novels, decades of scientific journals. You are entrusted with it not as an owner, but as a custodian: the person whose job is to make sure it is still there for the next generation. Now imagine that, one by one, someone begins replacing those books with laminated cards. Each card says the same thing: “The content of this book is available. Please apply in writing to a private company for a licence to read it. Processing time: indeterminate.” The books still exist, somewhere. You just cannot touch them. You cannot lend them. You cannot preserve them. And when the company eventually decides they are no longer commercially interesting, the books disappear entirely. Not burned. Just quietly, contractually, gone.
This is not a thought experiment. It is the operational reality of all libraries in the digital age. A crisis is affecting our libraries and archives, and most people have no idea it’s happening. The digital transition that was supposed to open up knowledge to everyone has instead handed the keys to private publishers, armed with restrictive contracts, pricing structures that defy public interest logic, and an increasingly powerful weapon: the digital lock.
And two major campaigns have decided it is time to do something about it.
Knowledge Rights 21 (KR21) has launched Safeguard Access, Empower Europe — An Action Plan to Let Libraries be Libraries, a nine-point roadmap demanding that EU and national governments rewrite the rules of digital knowledge. In parallel, Our Future Memory, a global statement of digital rights for memory institutions coordinated by Internet Archive Europe and backed by IFLA, major library and archiving associations, and institutions from Serbia to Saint Lucia, makes a demand that should be uncontroversial: the rights libraries have always held offline must follow them online.
Together, these campaigns are drawing a line. And as artificial intelligence moves from the margins of policy debate to its very centre, the stakes for getting this right have never been higher.
The 21st-Century Black Hole: How Libraries Lost Their Ability to Fulfill Their Mission
In the physical world, a library bought a book. It owned that book. It could lend it, copy it for a patron with a disability, pass it to another institution, or donate it to an archive. The concept of exhaustion, i.e., the legal principle that once a work is sold, the seller’s control ends, underpinned the entire edifice of public knowledge for centuries.
In the digital world, that foundation has been quietly demolished. Publishers do not sell e-books to libraries; they license them. They can set the price, restrict the number of loans per copy, mandate annual renewals, withdraw titles without notice, and prohibit inter-library lending. Some refuse to license to libraries at all. The result, as KR21’s Action Plan puts it plainly, is a “21st-century black hole”: a growing void where digital works circulate commercially but are never collected, never preserved, and eventually, never accessible to anyone at all.
This isn’t a market failure in the narrow economic sense. It’s a policy failure: laws that were designed for atoms have not been updated for bits, and the beneficiaries of that gap are not the public.
TPMs: The Digital Lock That Never Expires
Among the tools publishers use to maintain control, technological protection measures (TPms), aka digital rights management (DRM) systems, deserve particular attention, and particular alarm. A new analysis from Communia by Kristofer Erickson at CREATe, University of Glasgow, makes the comparison that should anchor every conversation about the upcoming DSM Directive review: TPMs are like environmental pollution.
Just as industrial polluters once externalised the costs of their waste onto communities and future generations, publishers apply TPMs at the point of distribution and then walk away, leaving libraries, archives, and researchers to deal with the consequences for decades. The original commercial transaction is long over. The TPM remains.
Erickson’s team surveyed 92 libraries and archive institutions across Europe, and the findings are stark. TPMs were found to impede research, lending, learning and teaching, text and data mining, and on-site visitor access — in other words, nearly everything libraries exist to do. When institutions tried to navigate the formal procedures for requesting TPM removal, 51.7% of requests took a month or longer to resolve. 10% received no response at all. 9% percent were simply denied. Only Bulgaria and Slovenia have introduced a 72-hour response deadline for rightsholders. The rest of Europe leaves libraries in a procedural wilderness.
Perhaps most damning: 48% of institutions and 80% of individual researchers reported they would simply avoid acquiring TPM-protected materials in the future. They prefer unauthorised sources, which are functionally superior because they can actually be used. This is not a piracy crisis. It is a policy crisis, a devastating indictment of how far copyright enforcement has diverged from copyright’s purpose.
And then there is the preservation dimension. Digital preservation is not just copying. It involves migrating files across formats, emulating obsolete software environments, and recovering data from legacy hardware. TPMs obstruct all of this. For some legacy formats, the technical expertise to legally circumvent an outdated protection no longer exists. Manufacturers have closed. Encryption keys are lost. The laminated cards are rotting. The books they replaced are gone.
Our Future Memory: The Global Demand
The Our Future Memory campaign puts all of this in the simplest possible terms. Memory institutions must have the legal right and practical ability to: collect digital materials; preserve them; provide controlled access to them; and cooperate with one another to share and transfer collections.
These are not radical demands. They describe what libraries have always done with physical materials. The Statement originated from conversations at the Internet Archive’s Library Leaders Forum and has since been signed by institutions from the Caribbean to Scandinavia, including IFLA, the American Library Association, and Creative Commons. Its global reach matters: the crisis of digital access is not only a European regulatory problem. It is a structural feature of how commercial digital distribution works everywhere. The institutions pushing back span every continent, which tells you exactly how far the digital environment has drifted from the public interest.
The Nine Actions Europe Needs
KR21’s Action Plan is the most comprehensive European-level response yet assembled. It operates on two tracks.
The first is tackling market dysfunction. Publishers should not be able to refuse to license digital materials to libraries on reasonable terms. Contracts should not be able to override the public interest missions libraries exist to serve. TPMs must be meaningfully reformed, beginning with the adoption of the Bulgarian and Slovenian 72-hour response deadline across all EU member states and the decriminalisation of circumvention for clearly legal uses. Libraries should be protected from unlimited liability for their users’ copyright infringements — a threat that produces a severe chilling effect on even the most clearly lawful services. And competition authorities should finally examine information markets, where a small number of large publishers have accumulated extraordinary power over access to knowledge.
The second track is updating copyright law itself. The Court of Justice of the EU’s VOB decision established that libraries can lend e-books on a one-copy-one-user model, yet this has never been codified into the Rental and Lending Directive. Remote access to library collections needs technology-neutral legal protection: not a favour, but a recognition that a rural reader deserves the same access as someone who can walk through the library door. Out-of-commerce works need a functioning exception when no licence is available. And education exceptions that currently stop at the school gate need to be extended to libraries.
The AI Amplifier Effect
Now add AI to the equation.
AI systems, especially those related to research, language, and cultural heritage, depend on access to digitised works, the ability to conduct text and data mining, preservation of historical digital materials, and legal certainty around lawful uses. Yet Erickson’s research already shows that TPMs specifically impede text and data mining and research functions — the precise activities that underpin responsible AI development in the public interest.
This creates a dangerous asymmetry. Large commercial actors may negotiate access. Public institutions may be locked out. Researchers face barriers that are not technological but legal and contractual. If excessive copyright enforcement and digital locks already limit lawful research, the AI age does not gradually worsen the situation. It structurally entrenches it.
The result is a future in which Europe’s cultural heritage is digitised but not usable, public research institutions are systematically disadvantaged, and AI development increasingly depends on private gatekeepers rather than public knowledge ecosystems. That is not an innovation strategy. It is a market concentration strategy.
The irony is sharp: the Voss Report on copyright and generative AI has been used to argue for new restrictions on text and data mining—restrictions that would hit research institutions and libraries hardest, entrenching precisely the contractual and technical lock-in that the KR21 Action Plan is trying to dismantle. Large commercial AI developers can scrape at scale, partner, and pay. Libraries, constrained by licences, TPMs, and liability fears, cannot build the rich, well-curated digital collections that would make their knowledge usable in computational research.
We are sorting through laminated cards and calling it an AI strategy.
What Needs to Happen
The KR21 Action Plan, the Our Future Memory statement, and Communia’s TPM research all point in the same direction. Read them. Share them. Put them in front of every decision-maker who has not yet grasped what is disappearing.
Libraries are not asking for special treatment. They are asking for the same rights online that they have always held offline. That is a modest demand. Given where we are heading, it is also one of the most consequential ones in European knowledge policy today.
The policy window is open. But policy windows close. By the time we fully recognise what is missing, the laminated cards will be all that remains.
Get the article’s core concepts in a unique auditory summary—listen to the AI-generated track below!
This song was created entirely using artificial intelligence tools. If you enjoy this experiment, keep an eye out for each song illustrating our December articles.
Written by Caroline De Cock, LL.M., Head of Research at Information Labs
