Suchergebnisse

Copyright was originally intended to serve creators as an engine of free expression, protecting them from the interference of others and from all risk of censorship. To this end, a balance was conceived between exclusive control and freedom in order to enable future creativity. Some uses were kept outside the control of the right owner through limitations to the exclusive right. However, none of the existing systems of limitations in the various jurisdictions was specifically designed to address the creative reuse of copyright protected material in the context of derivative works. On the contrary, when an author in his creative process needs to use the expression of a previous copyrighted work, he will have to get the authorization of the copyright owner of the original work. This situation can be quite cumbersome, as right owners are not always easy to trace. Most of all, it can lead to private censorship, as private entities or individuals have the potential to decide what can and cannot be created and block the dissemination of new works. It might thus be questionable how this situation can be reconciled with either the copyright's rationale of incentivizing creativity or the obligations imposed on States by international and regionally protected human rights such as freedom of expression and freedom of artistic creation. This Article will assess the different options available for legislators and courts to secure creative uses in the context of derivative works to develop a satisfying legal mechanism de lege ferenda, discussing in particular the possible objections that could result from the international and regional framework for both intellectual property and human rights protection.

Do copyright limitations have the ability to promote creativity and innovation in an effective way? This question may initially sound astonishing because this incentive function is traditionally attributed to the exclusive rights and not to their limitations. However, it should not be forgotten that innovation often builds on existing creations. As a consequence, by depriving the copyright holder of the right to consent to certain acts, one might in turn encourage creative uses. In addition, it is possible for legislatures to draft limitations in order to guarantee that the permitted uses are not for free by providing for a just monetary return for right holders, for example by establishing a workable "limitation- based" remuneration system. In many European countries, uses legitimated by copyright limitations are often coupled with the payment of remuneration, from which the creators often profit in a considerable manner. Thus, this Article seeks to reflect on the limitations and exceptions to copyright from the perspective of the creators and their interests and, on this occasion, to express some free thoughts concerning the principle of exclusivity in copyright law.