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Hoeren, Thomas --- "The hypertrophy of German copyright law The hypertrophy of German copyright law – and some fragmentary ideas on information law" [2018] ELECD 588; in Ullrich, Hanns; Drahos, Peter; Ghidini, Gustavo (eds), "Kritika: Essays on Intellectual Property" (Edward Elgar Publishing, 2018) 23

Book Title: Kritika: Essays on Intellectual Property

Editor(s): Ullrich, Hanns; Drahos, Peter; Ghidini, Gustavo

Publisher: Edward Elgar Publishing

ISBN: 9781788971157

Section: Chapter 2

Section Title: The hypertrophy of German copyright law The hypertrophy of German copyright law – and some fragmentary ideas on information law

Author(s): Hoeren, Thomas

Number of pages: 25

Abstract/Description:

The purpose of the chapter is to indicate paths leading ‘towards a modern copyright law. German copyright law has become unbalanced and inappropriate. Over time, it has changed from a cultural law for creative minds to an economic law for investors, (negatively) affecting wide parts of society and industry. A closer look at the current crisis of copyright law and at possible ways out does reveal the need for a deeper analysis of the regulatory ideas that shape technology, economics and information law in general. In this context, it is essential to uncover the particular pre-notional understanding(s) of the term ‘information’ and of its ‘nature’. The (axiomatic) regulatory idea of information law is informational justice. It serves as a critical theory and metaphor for meta-rules concerning the conflict between free access to information and rights to its exclusive use. Since information is the fundament of our living condition, from a normative perspective it should be regarded as being a common good. Therefore, exclusive rights need to be (constitutionally) justified, limited and – in the case of a justification – balanced with other constitutionally legitimized interests of a liberal-democratic society. Either way, the question of whether and how a fair information law system may satisfy the interest in access to information and at the same time adequately reward creativity, cannot be answered on the basis of existing law. The necessary reform of the copyright law system will not succeed without clarifying the decisive meta-rules of informational justice. In the past too little attention has been paid to the fact that this task of clarifying these general rules is one for society as a whole, not only for legal researchers.