Systematizing and rebalancing EU copyright through the lens of property

Authors: Caterina Sganga


For decades now, the propertization of copyright has been viewed as the ultimate cause of many of the distortions affecting contemporary copyright law, and the enclosure of knowledge that has ensued. Although traces of this phenomenon are also present in the EU copyright harmonization, scholars have classified it as a dogmatically incorrect and merely rhetorical use of the proprietary label, hence not worthy of technical analysis, but only of repudiation and correction of its effects. Running counter to majority opinion, and building on a range of positive national examples of application of property rules and constitutional property doctrines in copyright matters, this article proves that property may become the systematic framework needed to solve a wide array of the most compelling balancing and interpretative problems affecting EU copyright law.

Keywords: EU copyright law – Harmonization – Propertization – EU property law – Social function – Constitutional property – Article 17 CFREU – Copyright balance – Exceptions – Three-step test – Scope of exclusive rights – Co-ownership – Abuse of copyright