US and EU: Diverging or Intertwined Paths?
Forthcoming, "Copyright versus (other) fundamental rights in the digital age. A comparative analysis in search of a common constitutional ground" (Edward Elgar) edited by Oreste Pollicino and Giovanni Maria Riccio
26 Pages Posted: 25 Jun 2019 Last revised: 8 Oct 2019
Date Written: January 18, 2019
Copyright law and fundamental rights have crossed paths on many occasions in the territory of the EU and the US. This has taken place not only as part of the legislative powers of these two jurisdictions, but more prominently within the judiciary. As a matter of fact, in both the EU and the US the copyright legislative framework contains internal and external safeguards apt to take into consideration fundamental/constitutional rights. Certain degree of similarity certainly exists between the two jurisdictions as to their general frameworks which manifests itself in the Charter of Fundamental Rights in Europe, the First Amendment in the US, the idea/expression dichotomy and the presence of certain permitted acts in both jurisdictions. At first sight and in theory, based on such considerations it appears that the US and the EU systems are not so far from one another. In this chapter, we intend to verify the extent of this convergence – in particular, the degree to which the US and EU courts influence each other in striking a balance between copyright and fundamental rights.
We analyse the nature of these safeguards and evaluate where the conflict between copyright law and fundamental/constitutional rights is resolved – within or outside of copyright law (§ II). We then turn to the jurisprudence of the US Supreme Court and the US Courts of Appeal and compare it to the CJEU with the aim of establishing whether and to what extent the decision-making process in the two jurisdictions converge or diverge (§ III). In the final part (§ IV) we conclude the discourse.
Keywords: copyright, fundamental rights, human rights, Charter of Fundamental Rights, First Amendment, idea/expression dichotomy, fair use, exceptions and limitations
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