END-USER FLEXIBILITIES IN CONTEMPORARY DIGITAL COPYRIGHT LAW – AN EMPIRICAL ANALYSIS OF END-USER LICENSE AGREEMENTS

In the platform age, copyright protected contents are primarilydisseminated over the internet. This model poses various challenges to the copyright regimethat was mainly designed in and for the analogue age. One of these challenges is related tothe fair balance between the interests of rightholders and other members of the society.Copyright norms try to guarantee the high level of protection of rightholders and preservesome flexibility for the benefit of end-users. These flexibilities range from statutorylimitations and exceptions (e.g., private use); resales (covered by the doctrine ofexhaustion); or complaint-and-redress mechanisms. Platforms, with their private norms,especially end-user license agreements (EULAs), might effectively enforce that balance intheir role as intermediaries in the chain of (e-)commerce. In our research, conducted withinthe frames of the „reCreating Europe” H2020 project, we focused on how these private normsallow for or diminish the exercise of user flexibilities. We collected, analysed andcompared twenty private ordering practices. The analysed platforms include streaming siteswith or without host function for end-users; online video game stores and other onlinemarketplaces; and social media. Our empirical examination demonstrates that theintermediaries, in line with their technical nature and business model, offer substantiveflexibilities for their consumers, on the one hand, and they meaningfully limit thepossibilities and decrease the expectations of end-users by restricting certain uses andproviding limited access to contents, on the other hand. Based on our findings, we measuredthe user-friendliness of the selected platforms.