Designing Digital Constitutionalism: Copyright Exceptions and Limitations as a Regulatory Framework for Media Freedom and the Right to Information Online

The importance of copyright law for the media sector is generally not reflected in media law and policy. Recent legislative initiatives, such as the European Media Freedom Act, have failed to address the potential chilling effects restrictive copyright rules can have on the activities of media actors. In particular, new forms of digital journalism and the increasing variety of platforms on which news and information are consumed require an adaptation of the legal framework. The increasing role artificial intelligence will likely play in the media landscape brings new challenges for the press and for the remuneration of journalists. In this respect, media and copyright law cannot be considered in isolation, a holistic approach being needed in order to respond to new technological challenges and adjust their normative orientation to address threats to constitutionally protected values such as freedom of expression and information and the freedom of the press. In fact, the role of the media as a ‘public watchdog’ in European democracies creates constitutional imperatives to enable the media to use works and other subject matter protected by copyright. These imperatives are derived from the European human rights instruments as they have been interpreted by the European Court of Justice and the European Court of Human Rights but gain a new momentum in the digital environment. In this contribution, it is argued that the emerging theory of digital constitutionalism can help to develop a common framework for media and copyright law. It further identifies copyright limitations and exceptions as the most appropriate mechanisms to enable such constitutionally privileged, and necessary uses in the digital environment More concretely, the paper advances proposals of reforms of the currently existing copyright exceptions for uses by the press to remove the chilling effects created by broad exclusive rights and to facilitate access to and the use of information necessary for the media to fulfil their role as the fourth estate of democracy. By doing so, the paper contributes to further concretize digital constitutionalism, identifying media and copyright law as subbranches of a much broader regulatory framework for constitutionally protected values in the digital space.