'Fair Use' through Fundamental Rights: When Freedom of Artistic Expression allows Creative Appropriations and Opens up Statutory Copyright Limitations

in: S. Balganesh, W.L. Ng-Loy and H. Sun (eds.), “The Cambridge Handbook of Copyright Limitations and Exceptions”, Cambridge, Cambridge University Press, 2020, 174 (forthcoming)

Centre for International Intellectual Property Studies (CEIPI) Research Paper No. 2020-06

33 Pages Posted: 4 Nov 2020 Last revised: 6 Nov 2020

Date Written: October 27, 2020

Abstract

This chapter discusses the evolution in jurisprudential understanding of the relationship between copyright and freedom of artistic expression in the European Union. It demonstrates how 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, in compliance with the case law of the European Court of Human Rights but contrasting with the recent conflicting position of the Court of Justice of the European Union. 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 law, freedom of artistic expression, copyright and freedom of artistic expression,fundamental rights

Suggested Citation

Geiger, Christophe, 'Fair Use' through Fundamental Rights: When Freedom of Artistic Expression allows Creative Appropriations and Opens up Statutory Copyright Limitations (October 27, 2020). in: S. Balganesh, W.L. Ng-Loy and H. Sun (eds.), “The Cambridge Handbook of Copyright Limitations and Exceptions”, Cambridge, Cambridge University Press, 2020, 174 (forthcoming) , Centre for International Intellectual Property Studies (CEIPI) Research Paper No. 2020-06, Available at SSRN: https://ssrn.com/abstract=3725013 or http://dx.doi.org/10.2139/ssrn.3725013

Christophe Geiger (Contact Author)

Université de Strasbourg - CEIPI ( email )

Bâtiment LE CARDO, 7 Rue de l'Ecarlate
CS 20024
Strasbourg, 67082
France

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