Handlungslasten des Urhebers

Copyright's paradigm is exclusivity. Generally, a use requires prior permission of the rightsholder
- it is up to the user to obtain it. Recently, however, there have been tendencies to
deviate from this norm. In such cases, a use is generally permitted unless the rightsholder
prohibits it. Rightsholders therefore bear the burden of opting out of otherwise lawful uses.
Based on the author's dissertation, this article examines the question of when it is reasonable
and lawful to impose such burden on rightsholders. German and EU copyright law employ
16 use cases of opt-out schemes. The analysis shows that all use cases presuppose that there is a transaction cost problem and the objective interests of the parties lean towards allowing such uses without individual transactions. The function of an opt-out scheme is then to adapt the exclusive rights to these circumstances through a flexible form of entitlement called a loperty rule. Under this rule, the cost of establishing a lawful use is reallocated to the rightsholder as the cheapest cost avoider. The article then examines the standing of such opt-out schemes under international copyright rules, i. e. the prohibition of formalities and the Three-Step test. It shows that most opt-out schemes will not qualify as a formality and are also able to ease compliance of limitations and exceptions with the Three-Step
test. Finally, the article develops a set of criteria to evaluate existing and future opt-out schemes for their reasonableness and lawfulness. If applied to the opt-out rules around the training of generative AI models, it becomes apparent that opt-out schemes do not meet the necessary conditions to be effective in this context.