The economic rights in copyright law received their present shape under different economic circumstances. Unlike in other areas of intellectual property law, there is no infringement test which would limit copyright protection to its proper function. Whereas in US law the broad scope of copyright protection is counterbalanced by the fair use exception, no such flexibility exists in EU law. This paper proposes a more flexible, market-sensitive infringement test. The ‘fairness-based approach’ presented here draws on experiences from trade mark and unfair competition law. It suggests a three-level model consisting of a black list of acts which are prohibited per se if done without the right owner’s consent, a medium level of acts which only trigger an infringement action if a negative effect on the right owner’s market or an unjustified profit of the user is shown, and a broad general clause.
Ohly, Ansgar, A Fairness-Based Approach to Economic Rights (November 5, 2017) in Copyright Reconstructed, PB Hugenholtz (ed), Wolters Kluwer, Alphen aan den Rijn, pp 83-119, 2018.