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RIDA 249 | 07-2016

Doctrine

Copyright, freedom of expression and free access to information (comparative study of american and european law)

LUCAS, André;GINSBURG, Jane

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This article looks at the way in which U.S. law and European law attempt to reconcile authors’ rights with freedom of expression and free access to information. In the United States, the trade-off is achieved through the doctrine of fair use, the flexibility of which has made it possible to meet the challenges raised notably by conceptual art and the digital revolution, though not without a degree of trial and error. In the European Union, the solution is usually provided by “limitations or exceptions” which are subject to strict interpretation. However, with particular regard to the weight to be attached to freedom of expression as a fundamental right, the idea is gaining ground of a proportionality test as a way of reining in the exclusive right outside the statutory provisions.