'Fair Use' through Fundamental Rights in Europe: When Freedom of Artistic Expression allows Creative Appropriations and Opens up Statutory Copyright Limitations
in: Wee Loon Ng, Haochen Sun and Shyam Balganesh (eds.), Comparative Aspects of Limitations and Exceptions in Copyright Law, Cambridge, Cambridge University Press, 2019 (Forthcoming)
Center for International Intellectual Property Studies (CEIPI) Research Paper No. 2018-09
30 Pages Posted: 1 Oct 2018 Last revised: 1 Feb 2019
Date Written: August 30, 2018
This chapter discusses the evolution in jurisprudential understanding of the relationship between copyright and freedom of artistic expression in the European Union and demonstrates how the courts in France and several other EU member states have accepted a “fair use” approach that applies fundamental rights as external limitations to copyright law. The chapter first analyses the application of freedom of artistic expression to copyright law on a case-by-case basis and shows that, although long contested, such an approach is now mandated by EU primary law, thus “flexibilizing” significantly the legal framework in this area. It then examines the balancing act between fundamental rights and copyright, with particular attention paid to the weight the judiciary should afford freedom of artistic expression versus copyright law in cases of creative appropriation, in order to comply with the obligations resulting from European, national, and international human rights provisions. Finally, the chapter concludes with a discussion and evaluation of the growing need for legislative reform to render freedom of artistic expression fully compatible with copyright law in the context of creative reuses of protected works.
Keywords: copyright and freedom of artistic expression;fundamental rights
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