Proportionality – A New Mega Standard in European Copyright Law

Abstract

Modern copyright law is designed so as to accommodate the needs of a dynamic reality through the extensive use of open standards, aimed at reconciling conflicting interests. In the past few decades the tension between the competing interests has intensified, and contemporary global copyright discourse has focused on the relationship and tension between traditional copyright interests and fundamental rights, such as freedom of expression, data protection and privacy. Against this background, a new path is gradually emerging in European and English copyright law, in which a new standard -- "proportionality" -- is being established to moderate the growing constitutional tension. The notion of "proportionality" is an acknowledged principle in European law. This article attempts to examine the relatively brief, recent history of the proportionality test as implemented in the copyright sphere, and understand its potential trajectories. Proportionality has been adopted as a measure for scrutinizing remedies granted in cases of copyright infringement. A growing body of literature acknowledges that remedies affect the scope of rights. The implementation of the proportionality test as a remedy-based measure in the copyright context firmly supports this position. The development of the new standard in European and English copyright law thus far, sketches a picture of a sophisticated vehicle for adjusting remedies to constitutional tensions within the substantive civil-copyright arena. The strength of this mechanism lies not only in its flexibility but also in its ability to simplify acute conflicts between competing fundamental rights and transform them into a dialogue which involves a more factually oriented balancing of interests, examined through the prism of remedies. The proportionality test therefore, may indeed take European intellectual property law to its inevitable new constitutional phase.