From Abuse of Right to European Copyright Misuse: A New Doctrine for EU Copyright Law

The great expansion of EU copyright law has paved the way for several rightholders’ abusive or dysfunctional conducts, without providing adequate solutions to prevent or remedy them. The answer from EU sources is characterized by extreme fragmentation, with tools mostly borrowed from external bodies of law. Paradoxically, the doctrine of abuse of right has long been neglected as a potential solution, mainly due to its flaws – difficult evidence-taking and weak remedies – and its incompatibility with the discretionary nature of continental authors’ rights. Yet, the notion emerges between the lines of several ECJ decisions, and finds its way from civil codes to copyright in a number of national courts’ precedents. Due to the paradigm shift towards a market-oriented and industry-based inspiration, EU copyright seems now to be open to admitting the possibility of misuse. Starting from these premises, this article argues that a unitary doctrine of copyright misuse may constitute an effective balancing tool for most of the dysfunctional conducts that copyright law and other bodies of law are still unable to resolve. In addition, it may also act as a regulatory paradigm to ensure greater certainty and transparency in the judicial development of key principles and rules of EU copyright law. To this end, the paper (a) proposes a four-prong test of abusiveness, incorporating criteria of proportionality and reasonableness inspired by the normative function(s) of exclusive rights; and (b) offers new perspectives on potential remedies and on the positive impact of the doctrine on the systematization of the current legislative framework.