Abstract
In Pelham, the Court of Justice of the European Union 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, and its associated dangers of widespread 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 Federal Constitutional Court redistributing 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.
Highlights
The deadline for implementing the Directive on Copyright in the Digital Single Market[1] has passed
Recent assertions by the German Federal Constitutional Court redistributing 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
The Federal Constitutional Court is much closer to an understanding of fairness as a central tenet, considering that the Court did not place much emphasis on how copyright could resolve such conflicts, and it was probably irrelevant that copyright law had no statutory mechanism to deal with freedom of art but the illfitting free-use clause
Summary
The deadline for implementing the Directive on Copyright in the Digital Single Market (hereinafter ‘‘DSMD’’)[1] has passed. The provision was premised on the previous jurisprudence by the Court of Justice, in which it was held that the right of communication to the public (Art. 3 InfoSoc Directive3) could extend to acts such as manufacturing and distributing devices permitting access to illegal content, and to operators of illegal file-sharing platforms. Technological measures safeguard exploiters’ existing distribution channels from disruptive competition This contribution addresses, centrally, the question of constitutionality of the new liability regime[7] in light of the opposing decisions reached by the German Federal Constitutional Court and the Court of Justice of the European Union respectively in the Pelham ( known as the ‘‘Metal on Metal’’8).
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More From: IIC - International Review of Intellectual Property and Competition Law
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