This chapter examines the common mantra in contemporary scholarship that the constitutionalisation of copyright as property right has contributed to the reinforcement of its protection vis-à-vis other interests and rights, with distortive consequences on the already fragile copyright balance. In the EU, this fear has been reinforced by the language of Art 17(2) CFREU (‘intellectual property shall be protected’). However, the chapter argues that a more careful analysis proves this narrative wrong and simplistic because it ignores elements which could open the door to different interpretative results, where the classification of copyright under the umbrella of constitutional property may, instead, create internal limits to authors' exclusive rights and lead to their functionalisation to alternative goals chosen for the copyright system. It demonstrates how the property model stemming from the combination of common constitutional traditions and EU sources is not absolute, but carries the imprint of the social function doctrine, which limits property rights from inside their structure. The chapter then contends that a correct constitutional propertisation of EU copyright law would not tilt the balance between copyright and other fundamental rights, and that between copyright and the EU social and cultural policies but, rather, would but preserve and guide such balancing exercises.
Construção histórica do modelo proprietário no Brasil: apresentação de uma hipótese sobre o direito à moradia / The historical frame of property model in Brazil: a hypothesis about housing rights