A "fair balance" between intellectual property rights and other fundamental rights?

Abstract: Recent development of case law emphasises the need to strike a fair balance between intellectual property rights and other fundamental rights. In theory, balancing of various fundamental rights is not a new concept. However, in practice, striking a fair balance between intellectual property rights and other fundamental rights is quite a new and problematic issue due to digitalisation, which has created new ways for the copyright holders to produce and distribute their works, but also made it easier for the users to share culture. Since the copyright holders have the exclusive right of distribution, unauthorised file sharing online normally constitutes a copyright infringement. Most problems arise when the copyright holders attempt to take measures against the infringers. Looking at the relevant legislation and at the case law, it is far from clear what measures are likely to strike a fair balance between the fundamental rights involved. In this thesis, various aspects of balancing are explored, discussing whether a fair balance between intellectual property rights and other fundamental rights can be achieved in practice. Based on a thorough analysis of case law, the act of striking a fair balance is compared with the mathematical expression of inverse proportionality; depending on the need to protect the very substance of copyright, the other rights can be restricted accordingly. The scope of the various rights is presented, concluding that since file sharing impairs the very substance of copyright, the other rights can be restricted, but only insofar as the restriction does not impair the very substance of those rights. The practical possibilities to strike a fair balance are discussed and various alternatives are presented. Preventive measures that involve filtering or blocking of information are discarded as unfeasible because they are likely to be disproportionate or technically ineffective. Tax measures to compensate for unauthorised file sharing are discussed briefly and rejected as an unviable solution. While ACTA is briefly presented as an indicator of tendencies towards stricter legal protection of copyright, business models and digital rights management are suggested as the most realistic ways to prevent unauthorised file sharing. Finally, the very core of the file sharing problem is examined. It is suggested that due to the long term of copyright protection, most culture cannot be shared freely, which means that most file sharing infringes copyright. A shorter term of protection is advocated as beneficial both for the society and for the copyright holders. It is concluded that the current state of law protecting intellectual property rights does not serve the needs of the Information society and that innovative business models could be used as a temporary solution when a balance between copyright and other fundamental rights cannot be fully achieved by other means.