A Framework for Convergence of US and EU law
A substantial part of the preceding discussion has been devoted to an explication of the constitutional underpinnings of US copyright law. An understanding of these constitutional issues is essential if there is to be meaningful copyright law harmonisation beyond the borders of the European Union. Although much of the discussion is framed in terms of how constitutional considerations may constrain harmonisation, we have also attempted to emphasise how these same constraints may provide the opportunity for a coalescence around a set of ideas and constructs that constitute the core of a kind of harmonisation that appropriately responds to the exigencies of our modern, transnational, digital copyright world. Certain US constitutional elements have come to be seen by some as serious obstacles, leaving room only for a constricted, “minimal standards” quasi-harmonisation as the only practicable vehicle. At the broadest level, these “obstacles” include: first, an assumption of a fundamental and unbridgeable cultural divide between the alleged US “instrumentalist” foundation for copyright law and the alleged author-centric, “natural rights” basis for much of the copyright law of the EU Member States; and second, an assumption of inherent incompatibility between a constitutionally required doctrine of “fair use” and the three-step test and an aversion to open-ended case-driven flexibility in law-making. Further, other specific constitutional factors, such as requirements of originality and fixation, may preclude some degree of uniformity.
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