A Decade of Fair Balance Doctrine, and How to Fix It: Copyright Versus Fundamental Rights Before the CJEU from Promusicae to Funke Medien, Pelham and Spiegel Online

Abstract

From Promusicae to date, the fair balance test has evolved into an articulated, sector-specific doctrine, but loopholes have still affected its reliability and consistency over time. This article sketches the evolution of the fair balance case law, draws a conceptual map schematizing the key elements of the doctrine, identifies its gaps, and illustrates how the CJEU can fix them, commenting on this basis on the recent AG Opinions and final decisions in Funke Medien, Pelham and Spiegel Online.

Keywords: EU Copyright, Fair Balance, Proportionality, Article 17 CFREU, Fundamental Rights, Horizontal Effects, Essence

JEL Classification: K11, O34