Private Law Theory

ABSTRACT
In the first part of the new millennium, the rise of the use of fundamental rights in shaping intellectual property norms has led one of the authors of this article to predict that this movement will be ‘constitutionalizing’ intellectual property law. The digital environment has brought a new relevance to the discussion under the heading of ‘digital constitutionalism’, as the activities of powerful private entities can – now even more – have strong consequences on the exercise of the constitutional rights of individuals. More than a decade and a half later, the influence of fundamental rights in particular on the scope and limitations of intellectual property in the digital environment has never been more important. This is illustrated by three seminal copyright decisions that deal with the relationship between copyright and freedom of expression (including freedom of the media, information, and freedom of artistic creativity) in the Funke Medien, Pelham and Spiegel Online cases that were delivered in July 2019 by the Court of Justice of the European Union.

This chapter – which presents an updated and modified version of an article published by the authors in 2020 – puts these decisions into perspective by discussing several points that make these decisions to stand out in the European judicial practice on copyright and fundamental rights …

Geiger, Christophe and Izyumenko, Elena, From Internal to External Balancing, and Back? Copyright Limitations and Fundamental Rights in the Digital Environment (December 2, 2021). Forthcoming in: Conception Saiz Garcia and Julian Lopez (eds), Digitalización, acceso a contenidos y propiedad intelectual (Madrid, Dykinson, 2022).

First posted 2022-02-01 12:00:14