Edited by Graeme B. Dinwoodie
Chapter 13: Exclusion and access in copyright law: The unbalanced features of the InfoSoc Directive
The work of jurists – as distinguished from lawyers, that is, legislators, judges, scholars – is always, in essence, a ‘political’ work, in that it expresses an even unconscious (sometimes even denied, and ‘technically’ masked) value-driven approach to ‘pondering’ the interests involved in the legal problems at stake. This is an approach that ultimately reflects the jurist’s personal Weltanschaaung – i.e. her/his societal vision. This is true not only of substantive arguments on the merits, but also of methodological approaches – and even, as concerns scholars, of the choice itself of the topics on which they focus. (I don’t think it is by mere chance that I regularly privilege topics characterized by the emergence of deep societal conflicts of interests.) This is certainly true of my interest towards the regulation set by Directive 2001/29/EC ‘on the harmonisation of certain aspects of copyright and related rights in the information society’ (a.k.a. InfoSoc Directive) where the heart of the matter lies in how the European legislator approaches the task of balancing the interests of rightholders with those of both competitors and the public (at large, see below) to ‘access’ copyrighted works. Accordingly, in this Chapter, I first aim to construe the framework of the interests involved. This is an effort which may opportunely start from a short general overview about copyright law’s dialectic structure.
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