Der Monismus des deutschen Urheberrechts und die unionsrechtlichen Verwertungsrechte – ein gordischer Knoten?

The assessment of transformative and derivative uses, linking and framing as well as comparable secondary uses requires a certain flexibility in order to strike a fair balance between the interests of rightholders, users and the public interest. The need for such flexibility conflicts with European copyright's rather inflexible concept of broad economic rights and a closed list of exceptions and limitations. However, the ECJ follows a functional interpretation based on the notion of the specific subject matter of copyright in order to specify the economic rights' scope in line with the fair balance principle. This approach identifies the rightholder's possibility to obtain an appropriate remuneration as main and overall objective of the harmonized economic rights. That poses questions as to the role of moral rights in Member States' national copyright law, in particular with regard to the German monistic concept. However, it is shown that a modern approach to the German monistic concept does allow to limit the scope of the economic rights respectively.