Copyright as Anti-Discrimination

Abstract

Employing a fundamental rights analysis unique to German and European law, the chapter argues that copyright can be interpreted as a means of anti-discrimination. Its anchoring point is the Deckmyn decision of the European Court of Justice. This case concerned a discriminatory parody. The Court invigorated the fundamental third-party right against discrimination as the reason why a copyright holder has a legitimate interest not to be associated with a discriminatory message. The chapter analyzes Deckmyn from the perspective of German law and extrapolates how third-party rights may influence other doctrinal aspects of copyright such as moral rights and the notion of abuse. The chapter makes two contributions: First, it revisits the debate on a morality bar in copyright by recasting the aesthetic and moral neutrality of copyright as a freedom of speech and art issue. Second, it explores possible doctrinal levers in copyright law for third-party rights of anti-discrimination by drawing parallels between discriminatory derivative works and discriminatory works.

Keywords: Anti-discrimination, neutrality, morality, parody, moral rights, abuse of copyright

JEL Classification: K11, K29