Transforming Copyright Exceptions Into User Rights

In EU copyright law, the protection of the right to intellectual property is the rule, and breathing space for competing fundamental rights, such as freedom of expression, is the exception. While formally recognizing the need to balance protection interests against other fundamental rights and values, the Court of Justice of the European Union (CJEU) fails to give users relying on competing fundamental rights a robust position in the copyright system. The Court has developed a meaningless “user rights” rhetoric that produces the false impression of affording users – in line with the equal rank of their rights in the Charter – the chance of meeting right holders as equals. In practice, however, the Court insists on the reconciliation of competing rights within the confines of copyright legislation. As a result, the specific requirements for invoking exceptions and the open-ended three-step test become stumbling blocks that can easily thwart the assertion of competing fundamental rights. To develop meaningful user rights, it would be necessary to introduce upfront gatekeeper requirements that prevent illegitimate infringement claims from the outset when competing fundamental rights are at stake.