Freedom of Artistic Creativity and Copyright Law: A Compatible Combination? UC Irvine law review 8, 3 (2018), 413 - 458.
Copyright was originally intended to serve creators as an engine of free expression, protecting them from the interference of others and from all risk of censorship. To this end, a balance was conceived between exclusive control and freedom and in order to enable future creativity, some uses were kept outside the control of the right owner through limitations to the exclusive right. However, none of the existing systems of limitations in the various jurisdictions was specifically designed to address the creative reuse of copyright protected material in the context of derivative works. On the contrary, when an author in his creative process needs to use the expression of a previous copyrighted work, he will have to get the authorization of the copyright owner of the original work. This situation can be quite cumbersome, as right owners are not always easy to trace, but most of all it can lead to a situation private censorship, as private entities or individuals have the potential to decide what can be created or not and block the dissemination of new works. It might thus be questionable how this situation can be reconciled with either the copyright’s rationale of incentivizing creativity or the obligations imposed on States by international and regionally protected human rights such as freedom of expression and freedom of artistic creation. In this article, the different options available for legislators and courts to secure creative uses in the context of derivative works will be assessed in order to develop a satisfying legal mechanism de lege ferenda, discussing in particular the possible objections that could result from the international and regional
