Similar to the graceful forward, backward and sideways movements in a minuet, after a slow start, the dynamics between IP and human rights have intensified to the extent that human rights law is seen as IP’s new frontier. When balancing various interests at stake in both the US and the EU, copyright law engages internal as well as external mechanisms. Interestingly enough, the application of these tools has taken place not only as part of the legislative powers of the two jurisdictions, but more prominently within the judiciary. In this respect, the jurisprudence of the US and the EU have often harmoniously intertwined in an elegant move towards one another, which has then been followed by a gradual swirl away into own interpretations. The overall purpose of this work is to analyze the extent to which the approach in the EU differs to the one in the US. To do so the paper first looks at the essence of the internal and external safeguards as such (§ II). We then turn our focus to the leading case law in the US by reference to the Supreme Court and some of the most prominent US Courts of Appeals judgments and compare it to the CJEU’s practice. In this respect we seek to verify whether and to what extent the decision-making process in the two jurisdictions has converged or diverged over the years (§ III). In the final part (§ IV) we conclude the discourse and suggest that at the moment it seems like the two systems are now dancing sideways hand-in-hand in the same direction.
Montagnani, Maria Lillà and Trapova, Alina, Copyright and Human Rights in the Ballroom: A Minuet between the US and the EU (December 3, 2019). Bocconi Legal Studies Research Paper forthcoming.