Nowicki Marek, The CJEU Gets to Taste its Own Medicine: a Critical Evaluation of the 2019 Decision in Pelham

The reliance on dated assumptions regarding the protection of investment-based related rights further exposed a fragile balance between the rights of the copyright holders and the rights of the public. After a number of puzzling decisions on the relationship between exceptions and limitations to copyright as provided for by Article 5 InfoSoc and the fundamental rights, the CJEU has reached a dead end, as its case law was found to be diverging from that of the European Court of Human Rights. A compromise designed to strike a fair balance was indeed found, but it might bring more harm than good to a system already described as the EU worst-case scenario – one with neither flexibility, nor legal certainty.