Suchergebnisse

Abstract
Open access research platforms are increasingly becoming the target of academic publishers claiming copyright infringement. Applicable law considerations are pivotal in such circumstances. The law governing the initial publishing agreement decides, ultimately, the extent to which rights have been transferred and the degree to which courts can exercise judicial control. Academic publishing differs significantly from standard copyright contracts. Academic authors customarily remain unremunerated and are expected to transfer all rights on an exclusive basis. Exclusivity thus eradicates the proliferation of open access platforms altogether. The article discusses the most relevant concerns that arise in private international contract law under the Rome I Regulation as a matter of material justice. German substantive copyright contract law and the general principles affording protection to authors underpinning it, most importantly as regards the fundamental principle of equitable remuneration and its limits. The article dismisses the conventional approach as regards both contractual choices of law and the closest connection analysis and proposes, based on more subtle considerations of material justice as a relevant factor in modern EU private international law, the application of special conflict rules so as to alleviate the problematic effects of uninhibited contractual freedom of contract, as a mechanism to avoid the designation of, particularly, a common law copyright jurisdiction imposed by way of predetermined terms governing the agreement. The article demonstrates, ultimately, that an author's claims to self-determination must outweigh the commercial interests of publishers, inadvertently providing open access platforms with legal certainty and freedom to republish.

AbstractInPelham, the Court of Justice of the European Union and the German Federal Constitutional Court reached diametrically opposing conclusions on the relevance of freedom of art in copyright law. The different stances permit a speculative prediction – they can have immediate consequences for the predictable challenges against the new platform liability regime, and its associated dangers of widespread filtering and blocking. The article discusses the numerous constitutional implications, with specific attention given to the respective interests affected by the new regime (authors, exploiters, users, platforms) in light of the divergent approaches from the perspective of what appears to be two rather conflicting constitutional cultures: specific perceptions of fundamental rights and proportionality under German law versus an approach tending to emphasise market integration under the EU legal order. Recent assertions by the German Federal Constitutional Court redistributing the division of competences between national and EU law permit the prediction of a disturbing future collision course between the two systems, with potentially massive implications for EU copyright law by and large.