Two Constitutional Cultures, Technological Enforcement and User Creativity: the Impending Collapse of the EU Copyright Regime?

Abstract

In Pelham, the EU Court of Justice and the German Federal Constitutional Court reached diametrically opposing conclusions on the relevance of freedom of art in copyright law. The different stances permit a speculative prediction – they can have immediate consequences for the predictable challenges against the new platform liability regime under Article 17 DSMD, and its associated dangers of wide-spread filtering and blocking. The article discusses the numerous constitutional implications with specific attention given to the respective interests affected by the new regime (authors, exploiters, users, platforms) in light of the divergent approaches from the perspective of what appears to be two rather conflicting constitutional cultures: specific perceptions of fundamental rights and proportionality under German law versus an approach tending to emphasise market integration under the EU legal order. Recent assertions by the German Constitutional Court redevising the division of competences between national and EU law permit the prediction of a disturbing future collision course between the two systems, with potentially massive implications for EU copyright law by and large.