Copyright and Human Rights in the Ballroom: A Minuet between the US and the EU

Copyright and Human Rights in the Ballroom: A Minuet Between the United States and the EU, 46 MITCHELL HAMLINE L. REV. 613 (2020)

44 Pages Posted: 12 Dec 2019 Last revised: 8 Jul 2020

See all articles by Maria Lillà Montagnani

Maria Lillà Montagnani

Bocconi University - Department of Law; Ask Research Center; New York University School of Law

Alina Trapova

Bocconi University; Bocconi University - Bocconi Law Department

Date Written: December 3, 2019

Abstract

Similar to the graceful forward, backward and sideways movements in a minuet, after a slow start, the dynamics between IP and human rights have intensified to the extent that human rights law is seen as IP’s new frontier. When balancing various interests at stake in both the US and the EU, copyright law engages internal as well as external mechanisms. Interestingly enough, the application of these tools has taken place not only as part of the legislative powers of the two jurisdictions, but more prominently within the judiciary. In this respect, the jurisprudence of the US and the EU have often harmoniously intertwined in an elegant move towards one another, which has then been followed by a gradual swirl away into own interpretations. The overall purpose of this work is to analyze the extent to which the approach in the EU differs to the one in the US. To do so the paper first looks at the essence of the internal and external safeguards as such (§ II). We then turn our focus to the leading case law in the US by reference to the Supreme Court and some of the most prominent US Courts of Appeals judgments and compare it to the CJEU’s practice. In this respect we seek to verify whether and to what extent the decision-making process in the two jurisdictions has converged or diverged over the years (§ III). In the final part (§ IV) we conclude the discourse and suggest that at the moment it seems like the two systems are now dancing sideways hand-in-hand in the same direction.

Keywords: human rights, fundamental rights, the Charter, First Amendment, fair use, idea/expression dichotomy, exceptions and limitations

Suggested Citation

Montagnani, Maria Lillà and Trapova, Alina, Copyright and Human Rights in the Ballroom: A Minuet between the US and the EU (December 3, 2019). Copyright and Human Rights in the Ballroom: A Minuet Between the United States and the EU, 46 MITCHELL HAMLINE L. REV. 613 (2020), Available at SSRN: https://ssrn.com/abstract=3497604 or http://dx.doi.org/10.2139/ssrn.3497604

Maria Lillà Montagnani

Bocconi University - Department of Law ( email )

Via Roentgen, 1
Milan, Milan 20136
Italy

Ask Research Center ( email )

via Roentgen 1
Milan, 20136
Italy

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Alina Trapova (Contact Author)

Bocconi University ( email )

Milano
Italy

Bocconi University - Bocconi Law Department ( email )

Italy

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