With roots in France, the minuet dance dominated the ballrooms of Louis XIV and spread throughout Europe and beyond. A social baroque dance, the minuet sees the two partners dancing separately in plain steps forward, backward, and sideways, while gradually and gracefully coming close to one another. Eventually, the pair come to hold hands, briefly continuing their dance together until separated again by their own movement. Throughout the entire dance, the two partners repeatedly come close, only to separate from one another. A similar movement can be observed between the U.S. and the EU in the interaction of copyright laws and human rights—the two jurisdictions continuously come close to one another, walking similar paths, then separate, spinning off in their own direction, only to then reunite for a few more steps in harmony.
Similar to the graceful forward, backward and sideways movements in a minuet, the dynamics between intellectual property (IP) and human rights have intensified to the extent that human rights law is now characterized as IP’s new frontier. More specifically, when balancing various interests at stake in both the United States and the European Union, copyright laws engage internal as well as external mechanisms. Interestingly, the application of these tools takes place not only within the legislative powers of the two jurisdictions but, most prominently, within the judiciary. In this respect, the jurisprudence of the United States and the European Union have often harmoniously intertwined in an elegant move towards one another, before gradually swirling away into disparate interpretations.
That said, the European Union and the United States bear a relative degree of similarity as far as their general frameworks are concerned. In the European Union, the external safeguards are defined by the Charter of Fundamental Rights of the European Union (the Charter), while the First Amendment to the U.S. Constitution serves that role across the Atlantic. A parallel can also be drawn from the internal safeguards of each jurisdiction. Main tools in this realm are the idea-expression dichotomy—applicable equally in both jurisdictions—and certain permitted uses, such as fair use in the U.S. Copyright Act of 1976 and limitations and exceptions enshrined in Article 5 of Directive 2001/29/EC in the EU
Such mirroring legislative structures imply that the United States and the EU theoretically do not stand too far from one another when it comes to the intersection of copyright and fundamental rights. Indeed, when tracing the leading jurisprudence in both territories, one observes that the two jurisdictions start from similar steppingstones. Despite this common background, the copyright and fundamental rights intersection somehow takes different interpretative routes and balancing exercises that involve diverging methodologies. While for a certain period of time, it seemed as though the EU had not entirely shut the door to external balancing, the United States appeared willing to foreclose external balancing after the landmark ruling of the U.S. Supreme Court in Eldred v. Ashcroft in 2003.
Nonetheless, the most recent jurisprudence of the Court of Justice of the EU (CJEU) suggests that internal balancing based on permitted uses and the idea-expression dichotomy is well‑suited to address conflicts based on the copyright and fundamental rights intersection. Eventually, the EU and the United States have apparently gradually reunited in their affirmation that the copyright legislative framework is self-sufficient to internalize the conflict.
The overall purpose of this article is to analyze the extent to which the approach in the EU differs from that in the United States. To do so, we first look at the essence of the internal and external safeguards (Part II). We then turn our focus to the leading case law in the United States 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 (Part III). In the final part, we conclude by suggesting that, at the moment, it seems that the two systems are dancing side-by-side in the same direction.