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.
EU Digital Copyright Law and the End-User