Geiger and Izyumenko, ‘Designing a Freedom of Expression-Compliant Framework for Moral Rights in the EU: Challenges and Proposals’

ABSTRACT
… The discussion proceeds in four parts. The first part outlines unharmonized status of the moral rights protection in the EU and ambiguities as to the availability in their context of the so-called ‘exceptions’ to the exclusive rights of copyright holders. The chapter then turns to the discussion of the recent dynamics in the case law of the CJEU that are argued to have significantly reduced users’ freedoms against the claims of the moral rights holders. Part two discusses the Deckmyn judgment rendered by the Court of Justice in 2014 in which the Court pronounced on inapplicability of copyright exceptions when authors claim violation of their quasi-integrity right. Part three proceeds towards analyzing the implications of the 2019 triad of Funke Medien, Pelham and Spiegel Online judgments by the CJEU where the Court of Justice expressly excluded applicability of any external freedom of expression limitation on top of the enumerated exceptions already available to copyright users in the EU. It is argued that a combined reading of Deckmyn on the one hand and Funke Medien, Pelham and Spiegel Online on the other might result in a quite restrictive approach to freedom of expression of copyright users in the EU wherein users can rely on neither copyright exceptions nor freedom of expression as an external argument to justify the free speech use of the works protected by moral rights. Part four, hence, advances a number of alternative proposals (capable of functioning cumulatively) aimed at providing a more proportionate approach towards the protection of both the right of original creators and those of secondary users in the moral rights context, helping to design a freedom of expression-compliant legal framework for moral rights in the EU.

Geiger, Christophe and Izyumenko, Elena, Designing a Freedom of Expression-Compliant Framework for Moral Rights in the EU: Challenges and Proposals (June 16, 2021) in Y Gendreau (ed) Research Handbook on Intellectual Property and Moral Rights (Cheltenham, UK / Northampton, MA, Edward Elgar) forthcoming.

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