A German Approach to Fair Use: Test Cases for TRIPs Criteria for Copyright Limitations?
Journal of the Copyright Society of the U.S.A., Vol. 57, pp. 553-571, 2010
20 Pages Posted: 30 Nov 2010 Last revised: 3 Jun 2016
Date Written: 2010
How may copyright laws allow for creatively transformative uses of works that they protect, for example, in parodies, in adaptations of novels to film, or in appropriation art? To start, this article focuses on German case law which, to avoid blocking such transformative uses, liberalized infringement analysis, as well as the exception for quotation, while taking account of the constitutional right to freedom of expression. Further, the article questions whether any overriding approach to this question, such as the German courts took in the case law just broached, should be subject to the criteria which the TRIPs Agreement sets out for copyright limitations and exceptions. At the same time, the Wittem project for codifying European copyright law is critiqued for its excessive reliance on TRIPs criteria for limitations and exceptions. Finally, the article proposes a common-sense approach to simplifying infringement analysis and remedies in order to make copyright law less chilling for creators.
Keywords: copyright, author's rights, constitutional rights, freedom of expression, transformative uses, infringement analysis, fair use, freie Benutzung, limitations and exceptions, TRIPs Agreement, European copyright code, remedies
JEL Classification: K11, K33, L82, L86, O34
Suggested Citation: Suggested Citation