Since of the very beginning of the modern copyright law era, the
exclusive right of reproduction has been an integral part of copyright law. However,
among the fundamental concepts of copyright, it is perhaps the least suitable for the
digital environment due to its technical-functional nature. Flexible, principle-oriented
regulation enabling context-sensitive outcomes and balancing of interests is
needed in European copyright law. In this respect, often suggested solutions such as
a fair use exception or the implied licence doctrine might not create enough
adaptability; whereas, a better solution would be to reform the fundamental structures
of copyright law. Even though achieving any radical changes to international
conventions might not be realistic, this article attempts to find an alternative
approach to the concept of reproduction. Structural rather than substantive elements
as substitutes for reproduction could be derived from the context of modern
trademark law. Such an approach would be consistent with the existing weak signals
on convergence between the branches of industrial property law and copyright. As a
structural adoption, a formulation stressing the legitimate interests behind the
protection and consequences of utilisation of the protected object for these interests
could be used in copyright law. One possibility would be a flexible instrument by
which it would be evaluated whether the utilisation of copyrighted work affects, or
is liable to affect, the legitimate interests of the right holder or alternatively if the
utilisation follows honest practice in the particular sector of the creative industry.

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• Should We Bury the Concept of Reproduction – Towards Principle-Based Assessment in Copyright Law?