A Fairness-Based Approach to Economic Rights

P.B. Hugenholtz (ed.), Wolters Kluwer, Alphen aan den Rijn, pp. 83-119, 2018

30 Pages Posted: 14 Nov 2019

See all articles by Ansgar Ohly

Ansgar Ohly

Ludwig Maximilian University Munich

Date Written: November 5, 2017


The economic rights in copyright law received their present shape under different economic circumstances. Unlike in other areas of intellectual property law, there is no infringement test which would limit copyright protection to its proper function. Whereas in US law the broad scope of copyright protection is counterbalanced by the fair use exception, no such flexibility exists in EU law. This paper proposes a more flexible, market-sensitive infringement test. The ‘fairness-based approach’ presented here draws on experiences from trade mark and unfair competition law. It suggests a three-level model consisting of a black list of acts which are pro-hibited per se if done without the right owner’s consent, a medium level of acts which only trigger an infringement action if a negative effect on the right owner’s market or an unjustified profit of the user is shown, and a broad general clause.

Keywords: copyright, economic rights, fairness, fair use

JEL Classification: K11, K19, K23, K33

Suggested Citation

Ohly, Ansgar, A Fairness-Based Approach to Economic Rights (November 5, 2017). P.B. Hugenholtz (ed.), Wolters Kluwer, Alphen aan den Rijn, pp. 83-119, 2018, Available at SSRN: https://ssrn.com/abstract=3481348 or http://dx.doi.org/10.2139/ssrn.3481348

Ansgar Ohly (Contact Author)

Ludwig Maximilian University Munich ( email )

Ludwigstrasse 29
Munich, Bavaria 80539

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