Towards a European 'Fair Use' Grounded in Freedom of Expression American University International Law Review 35, 1 (2019), 1 - 74 (
It is often claimed that an open-ended provision for copyright limitations such as the US fair use clause would be unfit for civil law countries because of their author-centered traditions of copyright law and their traditional skepticism towards “judge made law” encouraged by open norms. However, the rising application in those countries of fundamental rights by the judiciary to solve copyright cases (mainly based on freedom of expression and information) and the balancing of interests it requires resemble in many aspects the practice of common law jurisdictions and the weighing of factors typically done in the context of a fair use analysis. As a consequence, this article argues that some sort of “fair use” is already a reality in Europe; therefore, the debate should shift from the question of the compatibility of an open-ended copyright limitation with the European legal system to the question on how to draft a “fair use” provision that would better fit the European legal tradition. In order to do so, the paper analyses in detail the judicial application of the freedom of expression’s test of proportionality to IP disputes. It further demonstrates that, by providing for a developed list of fairness factors analogous to those of the US fair use, the courts have developed appropriate and functioning criteria to assess the legality of a copyright use, which, once systematized, could serve as a European open-ended copyright limitation.
Since in Europe a clause analogous in openness and flexibility to the US fair use provision is lacking, the article advocates the legislative incorporation of an open-ended clause grounded in freedom of expression in EU copyright law in order to enhance clarity, transparency and legal security, and concludes with a drafting proposal for such a provision.
