Ein modernes Urheberrecht. Von der Nutzungshandlung zum digitalen Lebensbereich

Digitalization and the Internet have challenged copyright law since the late 1990s; both transformed the usage of protected works fundamentally. Besides the struggle for an appropriate copyright law, however, the European legislator also needs to take account of the harmonization of certain facets of that field of law. One important issue in the current deliberations of reform as well as a fundamental problem of the above-mentioned technological changes is the system of exploitation rights and the remuneration of authors and artists. One of the main assumptions of this paper asserts that there is a trend away from the acquisition of works towards a mere payment of the actual amount of consumption. This trend, along with the equally assumed scarcity of user attention exacerbates the income crisis of authors. On the other hand, there are numerous acts of use that are not or cannot be traced by the legal system. This relates in particular to uses in private life and closed user groups (e. g. Facebook, WhatsApp or Dropbox groups). One recently suggested solution involves a juridification of the reception of protected works. But aside from the question of success, this approach would undermine the virtue of privacy and shall therefore be dismissed. This paper proposes a different approach: Due to its status and prevalence in the common Internet infrastructure, copyright law has achieved the importance and the role of a fundamental civil code; therefore it must be understood as such. Instead of assessing – at least in theory – billions of individual actions of use per day (!) the law should define »digital living spheres«, e. g. a social media sphere, a private sphere or a cloudstorage sphere. These spheres should be specifically regulated against the background of a general copyright law and be funded through flat rate payment systems. The burden of payment could be spread on different stakeholders, depending on the respective sphere. That is one of the differences to the much discussed »culture flatrate«. The proposed system could legalize big parts of work usage that are not licensable anyway and thereby increase the sum of distributable revenues for copyright holders considerably.