The economic rights are in need of reform. The present system has lost touch with economic reality. The CJEU is reacting by interpreting the right of communication to the public in a creative way. Some of its judgments draw on economic criteria and some are more convincing than others, but many of them represent attempts to reform the law judicially. Legislation, however, should claim back the lead, at least partly. The way forward seems to be a more flexible, market-sensitive infringement test. The 'fairness-based approach' presented here draws on inspirations from trade mark and unfair competition law. It suggests a three-level model consisting of a black list of acts which are prohibited per se if done without the right owner's consent, a medium level of acts which only trigger an infringement action if a negative effect on the right owner's market or an unjustified profit of the user is shown, and a broad general clause.
A light lunch will be provided. All are welcome.