No. 47: Are Fundamental Rights the Answer to the Deficiencies of EU Copyright Law, Discussed in a European Context?

Details

Author(s):
  • Maria Christina Michailidou
Publish Date:
June 11, 2020
Publication Title:
European Union (EU) Law Working Papers
Publisher:
Stanford Law School
Format:
Working Paper
Citation(s):
  • Maria Christina Michailidou, Are Fundamental Rights the Answer to the Deficiencies of EU Copyright Law, Discussed in a European Context?, EU Law Working Papers No. 47, Stanford-Vienna Transatlantic Technology Law Forum (2020).
Related Organization(s):

Abstract

The present thesis aims at examining the role of fundamental rights regime in the EU copyright law system. Given that the past years the applicable comprehensive legal text on EU copyright law was the InfoSoc Directive, the analysis starts with the particularities of the regime based on the respective Directive. The main flaw of the regulation under the InfoSoc Directive was the optional list of exceptions and limitations and the application of the three-step-test, which led to a fragmented and strict internal system. Resultantly, the system could not function as a sufficient tool for the balance of the competing interests between the right holders and the users. Consequently, a new tendency has been developed by the ECtHR and the ECJ: both courts resorted even more often to the fundamental rights regime in order to either interpret the problematic internal system of exceptions and limitations or to balance the conflicting rights of the copyright owners and the users. The advent of the fundamental rights regime as an external limit to the copyright protection scope has raised questions on the exact role of the regime in the EU copyright system. A few months before the ECJ’s answer to the relevant preliminary questions on whether is no externally limiting role of fundamental rights regime in the EU copyright system, the new Copyright Directive in the Digital Single Market was adopted. The Directive changed the preceding landscape and attempted to give solutions to its flaws as well as structure a solid internal balancing system and reinforce users’ rights. However, the DSM Directive despite of its welcome new provisions maintains connections to the preceding system of the InfoSoc Directive. The conclusion is blurred. Will the new system be able to correspond to the challenges that the digital single market places or should the role of fundamental rights regime be reconsidered? What is left to be observed is the interpretation of the new provisions by the ECJ and their implementation by the Member States.