Finding the balance in copyright law: internal and external control through fundamental rights

Abstract

The adoption of the Directive on copyright and related rights in the Digital Single Market (DSM Directive)1 in 2019 was accompanied by unprecedented public attention.2 During the three years of deliberations prior to its adoption, public interest groups and academia have commented extensively on the various draft versions of the directive.3 A recurring argument stressed the implications the provisions of the new legislation would have on the exercise of fundamental rights. Whether it was the introduction of new exclusive rights, or the failure to systematically reform exceptions and limitations (E&L), commentators criticized the disregard for a proper balance between the various interests and fundamental rights in the drafting of the new rules.4 Academic discourse on the relation between copyright and fundamental rights had been well established.5 However, the discussion surrounding the adoption of the DSM Directive was the first opportunity to observe and discuss the legislative fixation of substantive copyright rules with the European Union (EU) Charter in force. In parallel to the legislative process, the existing copyright rules were challenged for similar reasons. Three litigants, in particular, challenged the long-established dominance of exclusive rights and the inflexibilities of E&L. All three cases reached the Court of Justice of the European Union (CJEU) at the same time and were decided only briefly after the legislative process finally lead to the adoption of the DSM Directive.[...]