Do copyright exceptions and fundamental rights make easy bedfellows?
Universidade Católica Portuguesa – Faculdade de Direito
In Spiegel Online – a reference to the Court of Justice of the European Union (CJEU) made in the context of proceedings opposing German politician Volker Beck and news publisher Spiegel Online GmbH – the German Federal Supreme Court (BGH) referred a number of questions about the interpretation of exceptions laid down in Article 5 of the InfoSoc Directive, in particular the exception for the reporting of current events and the quotation exception.
Most notably, the BGH asked about the way in which the Charter of Fundamental Rights of the EU should be taken into account in determining the scope of exceptions. As EU copyright enthusiasts know, the traditional canon of strict interpretation of exceptions has been consistently mitigated by the CJEU’s understanding that interpretation must also ensure the exceptions’ effectiveness and the observance of their purpose. Moreover, in interpreting exceptions like quotation (C-145/10, Painer) and parody (C-201/13, Deckmyn), the CJEU has attempted to strike a fair balance between the intellectual property rights of authors and the fundamental rights of users. Generalising this approach to the remaining exceptions would be a welcome move by the Court.
But the most important among the six questions referred by the BGH is whether the fundamental freedoms of information and of the press may justify exceptions beyond those listed in Article 5. On the one hand, a negative answer would be consonant with the closed nature of the catalogue of exceptions, proclaimed in Recital 32 of the Directive. On the other hand, opening up the catalogue, even if only in carefully delimited circumstances, would amount to an injection of much-needed flexibility into EU copyright law. In the absence of legislative reform in this regard, such a solution would give national courts some breathing space to openly accommodate unforeseen and socially valuable uses of protected works.
[*] The author acted as legal adviser for the Portuguese Government in Case C-516/17, Spiegel Online. Nonetheless, the views expressed in this post are his own and do not necessarily reflect the official position of the Portuguese Government.
[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).]