A Decade of Fair Balance Doctrine, and How to Fix It: Copyright versus Fundamental Rights before the CJEU from Promusicae to Funke Medien, Pelham and Spiegel Online

From Promusicae to date, the fair balance test has evolved into an articulated, sector-specific doctrine, but loopholes still affect its reliability and consistency over time. Waiting for the CJEU’s boundary-setting responses in Funke Medien, Pelham and Spiegel Online, this article sketches the evolution of the fair balance case law, draws a conceptual map schematizing the key elements of the doctrine, identifies its gaps, and illustrates how the CJEU can fix them.