Abstract: This chapter discusses the evolution of the jurisprudential understanding in the European Union of the relationship between copyright and freedom of artistic expression and demonstrates how courts specifically in France but also in several other Member States have been accepting a sort of “fair use” approach through the application of fundamental rights as external limitations to copyright law. The chapter first analyses the application of freedom of artistic expression to copyright law on a case-by-case basis and shows that if long contested, such an approach is now mandated by EU primary law, thus flexibilizing the legal framework in a significant manner; second, the balancing between fundamental rights and copyright is examined, with particular attention towards how the weighing between freedom of artistic expression and copyright law in cases of creative appropriation should be done by the judiciary to comply with the obligations resulting from European, national and international human rights provisions; finally, the chapter discusses and evaluates the growing need for legislative reform in order to make freedom of artistic expression fully compatible with copyright law in the context of creative reuses of protected works.
Citation: Geiger, Christophe, ‘Fair Use’ through Fundamental Rights: When Freedom of Artistic Expression allows Creative Appropriations and Opens up Statutory Copyright Limitations (August 30, 2018). in: Wee Loon Ng, Haochen Sun and Shyam Balganesh (eds.), Comparative Aspects of Limitations and Exceptions in Copyright Law, Cambridge, Cambridge University Press, 2018 (Forthcoming).
Full text on SSRN: https://ssrn.com/abstract=3256899
