The Authors' Take - Fundamental Rights as External Constraints on Copyright Law: Horizontal Effect of the EU Charter after Funke Medien and Spiegel Online

Fundamental Rights as External Constraints on Copyright Law: Horizontal Effect of the EU Charter after Funke Medien and Spiegel Online

by Daniël Jongsma

It is a well-known characteristic of European copyright systems: limitations and exceptions are exhaustively enumerated, they are precisely defined, and they are historically interpreted strictly or even restrictively. A result of this closed system is that certain uses may not be exempt from infringement even though they constitute an exercise of a fundamental right. For this reason, there has been a decades long debate about the answer to the question whether fundamental rights can serve as an autonomous defence against copyright infringement. 

In its judgements in Funke Medien (C-469/17) and Spiegel Online (C-516/17) the Court of Justice of the European Union (CJEU) appeared to resolutely reject the idea of fundamental rights as such “external constraints” on copyright. If this is true, one might conclude that the safeguarding of fundamental rights is to solely occur through an interpretation and application of copyright law itself that is, insofar as possible, consistent with those rights. This begs the question: what to do when a consistent interpretation is not possible, when a use that ought to be permitted from the perspective of fundamental rights nevertheless constitutes a copyright infringement? Has the CJEU placed EU copyright on a collision course with fundamental rights, for instance as protected by the European Convention on Human Rights? 

I do not think so. I conclude this on two grounds. First, I suggest that the CJEU did not conclusively rule on the question of so-called “horizontal direct effect” of fundamental rights in copyright cases. Second, and more important, Funke Medien and Spiegel Online only concerned the relationship between substantive copyright law and fundamental rights. They did not address the issue of remedies. Secondary EU legislation does not require that remedies are granted automatically upon a finding of infringement. Moreover, the EU Charter of Fundamental Rights may even require in certain cases that national courts refuse to enforce copyright. The CJEU must elucidate the boundaries set by the Charter. In my contribution to JIPLP I substantiate these conclusions and make some suggestions as to the limits EU law might impose onto national law.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]