Guido Westkamp (Queen Mary University of London; University of Münster) has posted Collective Creativity, Copyright, Social Justice: The Function of Fundamental Rights and the Resilience of Private Law on Platforms (Intellectual Property and Social Justice, forthcoming) on SSRN. Here is the abstract:
Collective expectations can alter the constitutional equilibrium between claims to property and access rights and enhance social justice. The landmark decision by the Court of Justice in Pelham II inaugurates a radical shift in the centre of gravity. It provides anyone (authors as much as “creative” users on platforms) with, very arguably, a subjective right to engage in transformative or referential uses. My contribution aims, first, to provide a reflection of the incremental development from a “strictly” legal point of EU and domestic copyright doctrine – towards a malleable system that ensures access to protected content and thereby improves social justice concerns through a subtle recalibration of rights and expectations through theoretical reflexions. Thus, the centre of gravity might shift back again to rather general principles of private autonomy understood as personal freedom to contract – at this juncture, fundamental questions as regards the autonomy of private law against fundamental rights emerge, especially following the introduction of the directive on contracts over digital content in the EU.
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