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

Abstract

In the platform age, copyright protected contents are primarily disseminated over the internet. This model poses various challenges to the copyright regime that was mainly designed in and for the analogue age. One of these challenges is related to the 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 preserve some flexibility for the benefit of end-users. These flexibilities range from statutory limitations and exceptions (e.g., private use); resales (covered by the doctrine of exhaustion); or complaint-and-redress mechanisms. Platforms, with their private norms, especially end-user license agreements (EULAs), might effectively enforce that balance in their role as intermediaries in the chain of (e-)commerce. In our research, conducted within the frames of the „reCreating Europe” H2020 project, we focused on how these private norms allow for or diminish the exercise of user flexibilities. We collected, analysed and compared twenty private ordering practices. The analysed platforms include streaming sites with or without host function for end-users; online video game stores and other online marketplaces; and social media. Our empirical examination demonstrates that the intermediaries, in line with their technical nature and business model, offer substantive flexibilities for their consumers, on the one hand, and they meaningfully limit the possibilities and decrease the expectations of end-users by restricting certain uses and providing limited access to contents, on the other hand. Based on our findings, we measured the user-friendliness of the selected platforms.