Creating EU Copyright Law: Striking a Fair Balance

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Title: Creating EU Copyright Law: Striking a Fair Balance
Author: Jongsma, Daniël
Contributor: Hanken School of Economics, Department of Accounting and Commercial Law, Commercial Law
Belongs to series: Ekonomi och samhälle - 334 - Economics and society - 334
ISSN: 2242-699X (PDF)
0424-7256 (printed)
ISBN: 978-952-232-399-6 PDF
978-952-232-398-9 (printed)
Abstract: As a result of extensive, if incomplete, harmonization efforts in the area of copyright law most of the rights granted to authors and related rights holders now originate in EU law. This makes the Court of Justice of the European Union (CJEU) an important authority with regard to the construction of copyright law in the EU. It appears the CJEU has accepted this role with great enthusiasm, achieving ever greater harmonization through an expansionist interpretation of the acquis communautaire. Increasingly, the CJEU pays attention to the impact of copyright on fundamental rights, such as the right to freedom of expression, considering that copyright must maintain a “fair balance” of rights and interests. Accordingly, fundamental rights are used as interpretative arguments when defining the scope of protection offered by copyright. This begs the question about the functionality of fundamental rights arguments in the process of judicial norm-making by the CJEU. This question is at the centre of this dissertation. To answer this question, this dissertation provides a systematic and critical analysis of both the CJEU’s interpretation of copyright norms generally and its use of fundamental rights arguments specifically. It does so against a legal theoretical background of proportionality analysis and balancing. It is argued that the CJEU frequently implicitly strives to find a “balance” between the interest of right holders in an “appropriate reward” and other rights and interests, but that this approach is often clouded by confusing rhetoric that obscures the true reasons for the CJEU’s decision-making. Even where it more explicitly emphasizes the need for copyright law to preserve a “fair balance of rights and interest”, the meaning and content of this concept is left unclear. Most importantly, the CJEU does not explain the precise content of the rights and interests to be balanced. The result is that its decision-making is opaque, not always coherent and often unpredictable. This dissertation makes several recommendations for a more coherent approach to the use of fundamental rights arguments in EU copyright adjudication. Importantly, the CJEU should more explicitly and more consistently focus on copyright’s purpose to provide right holders with an appropriate reward, taking account of both the empirical and normative uncertainty about the degree to which that reward can really be justified. To give full effect to fundamental rights, it is argued that limitations and exceptions to the rights of right holders can typically be construed broadly, since the right holder’s interest in an appropriate reward can be safeguarded by assessing whether the application of those provisions “preserves a fair balance”. Finally, remedies should be applied flexibly in a way that recognizes their potential limiting effect on fundamental rights but that respects the legislative prerogative to determine the boundaries between exclusivity, remuneration, and free use.
Date: 2020-01-14
Subject: Balancing
European Union
Fair Balance
Fundamental Rights

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