Liliia Oprysk “Reconciling the Material and Immaterial Dissemination Rights in the Light of the Developments under the EU Copyright Acquis”

Prof. Karin Sein

Prof. Aleksei Kelli

Prof. Raimundas Matulevičius 

Assoc. Prof. Lucie Guibault, Dalhousie Ülikool

 

Professor P. B. Hugenholtz (University of Amsterdam)
Professor O.-A. Rognstad (University of Oslo)

 

Copyright protection ought to serve the public interest by incentivising artistic labour and facilitating dissemination of creative works. Inevitably, the grant of exclusive rights under copyright comes at the cost of reduced public access to protected works and distorted competition. Therefore, control conferred by exclusive rights is not absolute but must be confined to what is necessary to achieve the rationales of protection. Development of technology has challenged the established approaches to defining the appropriate scope of exclusive rights. Not least, the emergence of the digital environment as a new dissemination channel has contested the traditional distinction between the rights of material and immaterial dissemination enshrined under the EU copyright acquis. Secondary EU law seemingly denies any general limit to the right holder’s control over any primary or secondary acts of communication while exempting secondary distribution. The recent development under the CJEU jurisprudence, on the other hand, suggests that the variable circumstances of exploitation of a work call for a more nuanced approach. This thesis explores the development of the key economic rights under the EU copyright acquis against technological advancements and the distinction drawn between material and immaterial dissemination rights under secondary EU law. It advances the idea that the assumption enshrined under the EU copyright framework at the very outset of harmonisation is outdated and suggests reconciling of the approaches to regulating dissemination-related rights in the light of the developments under the acquis. To this end, a normative framework for evaluating the justifiability of extending the reach of exclusive rights beyond authorising every initial dissemination of a work is offered. Unlike the current approach to the scope of control, the outlined criteria take into account the changing circumstances of a work’s exploitation and the diverse interests involved.