infoJustice

Author: Christina Angelopoulos

Abstract: For a long time, copyright and human rights took little account of each other. The emergence of digital technology, however, has forced a more intimate interaction. This interaction raises questions about both the nature of copyright and its relationship with other interests: is copyright a human right and, if so, how can clashes with other human rights be resolved? In the European context, the answer to the first question has so far been ‘yes’, raising the stakes as to the second. Both the CJEU and ECtHR have approached the matter as one requiring a ‘balance’. In this piece, three different balancing mechanisms are identified: the ‘internal balance’ approach, the ‘external balance’ approach and the ‘internalized balance’ approach. The first defers to the balance struck by the legislator, in the hope that this reflects the requirements of human rights. The second returns the balance to the courts, which apply copyright legislation to the facts of each case taking into account the law of human rights. The third reintegrates the balancing process within the interpretation of copyright terminology. Examples of all three can be found in the case law. How to improve the balance and what impact balancing case law should have on the legislator remain open questions.

Citation: Angelopoulos, Christina, European Copyright and Human Rights in the Digital Sphere (May 5, 2019). M. Susi (ed.), Human Rights, Digital Society and the Law: A Research Companion (Routledge, 2019), Available at SS