| dc.description.abstract | Free spaces within the European copyright system are necessary to support creativity and secure important fundamental rights such as freedom of expression. While the ability of spaces to support creativity, such as the delineation of exploitation rights or the availability of copyright exceptions and limitations, have long been the subject of intense critical review, this thesis proposes that a principle of implied authorisation ultimately reconciles these spaces in a proportionally balanced manner. Though copyright interests are traditionally pit against each other to expand economic rights, this thesis proposes a different construct: Firstly, the existence of “exploiters”, those granted some extent of copyright exclusivity, secondly, the blurry line between authors and users online, and thirdly, the subsidiary role of both exploiters and platforms to support creativity online. Subsequently, the thesis uses the principles from the exhaustion doctrine, a traditional limiter of access to intellectual property rights, to contend that the principle of implied authorisation is an inherent and proportional balancing mechanism within European copyright law. The thesis tests the principle of implied authorisation by examining the exploiters’ narrative of European copyright law which involves reliance on burdensome contractual terms and technology to control access to works. The construction of the principle of implied authorisation is then used to determine how the latest development of exploiters’ rights relating to user uploads on platforms, article 17 Digital Single Market Directive, should be implemented. Comparing national approaches, the thesis contends that the approach of the German legislator proportionally balances the interests of authors, users, exploiters and platforms in a similar manner to the principle of implied authorisation and safeguards creativity online. From this context, the thesis lastly proposes that the principle of implied authorisation could be constructed as an access right within European copyright law, neatly reconciling the fundamental spaces to support creativity online. | en_US |
