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]

The Authors' Take - European Court of Human Rights rules that collateral website blocking violates freedom of expression

European Court of Human Rights rules that collateral website blocking violates freedom of expression

by Elena Izyumenko

In a decision in the case of Vladimir Kharitonov v. Russia rendered in June this year, the European Court of Human Rights (ECtHR) has held that an incidental blocking of the applicant’s website as a result of a State agency’s decision to block access to another website which had the same IP address as the applicant’s website violated freedom of expression.

The article exposes the different stages of the Court’s analysis that allowed it to reach this conclusion and assesses the practical significance of the case for copyright enforcement online. With regards to the latter, specifically, the ECtHR had already held in March this year (in the case of Pendov v. Bulgaria) that the limited functionality for a significant period of time of the applicant’s cultural website that had resulted from criminal copyright enforcement proceedings against third parties violated the applicant’s freedom of expression.

The Court of Justice of the European Union had likewise confirmed previously, in a much discussed judgment in UPC Telekabel, the need to assess the effects of the measures blocking copyright-infringing websites upon the fundamental rights of those affected, including the Internet users’ freedom of expression and information.

This is not to say, though, that the ECtHR is necessarily to provide for substantially more extensive guidelines in the area of website blocking for copyright enforcement beyond those already elaborated in Luxemburg and Strasbourg. It worth noting that Kharitonov concerned one specific, particularly intrusive type of website blocking – IP address blocking – that the courts in a number of European jurisdictions had already ruled disproportionate. With regards to other, less aggressive forms of blocking, the ECtHR might feel less at ease to intervene.

Overall, however, the general possibility to test website blocking practices from the human rights perspective can only be approved of, and the recent Kharitonov judgment certainly adds weight to this possibility.

[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]

The Authors' Take - How dynamic is a dynamic injunction? An analysis of the characteristics and the permissible scope of dynamic injunctions under European Law after CJEU C-18/18 (Glawischnig-Piesczek)

How dynamic is a dynamic injunction? An analysis of the characteristics and the permissible scope of dynamic injunctions under European Law after CJEU C-18/18 (Glawischnig-Piesczek)

by Berdien van der Donk

In its judgment in C-18/18, the Court of Justice of the European Union concluded that injunctions including not only future identical infringements, but also similar infringements to the infringement in the initial proceeding do not constitute a general monitoring obligation and, as such, are not incompatible with the prohibition in Article 15 of the e-Commerce Directive. Such broad-scoped injunctions have been on the rise as they have proven to be an effective enforcement tool to tackle online infringements.

This article focuses in particular on the concept of dynamic, which are ordinary injunctions with two possible dynamic add-ons: a dynamic-content and a dynamic-infringer part. Unlike their general counterparts, the content of a dynamic injunction is subject to change. All this can increase the enforcement possibilities for online infringements, as general blocking injunctions are easy to circumvent by infringers through re-uploading the infringing content to IP addresses or domain names that fall outside the scope of the injunction.

Based on the primary and secondary Union law limitations, the article concludes that dynamic injunctions to prevent infringements of intellectual property rights can include an obligation for an online intermediary to block access to active infringements and to monitor its service for and block access to all future identical infringements to these initial infringements, irrespective of the uploading party. Similar content can be included when the injunction properly defines such content, and the injunction does not effectively oblige an online intermediary to carry out an assessment of the infringing nature of the content. To avoid such an obligation to carry out a legal assessment of the content, and based on the way dynamic injunctions have been successfully applied in several Member States of the European Union, it is recommendable to require similar infringements to be blocked only after a rightholder’s notification. All this would be necessary to prevent the over-filtering of legal content and unduly transfer the burden of identification from the rightholder to the receiving intermediary.

[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]

The Authors' Take - AG Szpunar pleads for a cautious use of fundamental rights in copyright

AG Szpunar pleads for a cautious use of fundamental rights in copyright

by Bernd Justin Jütte

With his Opinion in Funke Medien (C-469/17) Advocate General Szpunar opened the first (of at least three) rounds in which the Court of Justice of the European Union will test the boundaries of exclusive rights and copyright exceptions, and possibly also the limits of copyright in the EU (see also C-476/17 and C-516/17).

In proceedings before the German courts, the German Government seeks to prohibit the online publication of confidential military reports by invoking its copyright in the documents. The reports had been made available by the Westdeutsche Allgemeine Zeitung, a newspaper owned by Funke Medien. In the absence of an applicable exception in the EU copyright rules, the German courts asks whether Member States can exercise flexibility when implementing the exceptions under Article 5 of Directive 2001/29, and whether the fundamental rights of the Charter create exceptions to copyright beyond those expressly mentioned in the directive.

The Advocate General changes the perspective of the analysis and asks instead whether a restriction of the right to freedom of expression enjoyed by the newspaper can be justified by the government’s interest to protect its intellectual property in the reports. This is not the case when the reason for invoking copyright is to keep the information contained in the documents secret. It is, according to the Advocate General, not the purpose of copyright to protect the confidentiality of information. In such circumstances a limitation to freedom of expression cannot be justified on the grounds of intellectual property. Moreover, even if that were possible, a Member States could not, as a guarantor of fundamental rights, invoke the right to property against a private party.

Advocate General Szpunar cautions against a liberal application of fundamental rights in copyright cases outside of the legal provisions, which already reflect a balance between different interests and fundamental rights. Only in exceptional cases, for example when copyright is abused to achieve goals that are not covered by the purpose of copyright law, fundamental rights can serve as external checks to this property right. This line of argument is important, as it lends legitimacy to copyright rules, which should not be destabilized by challenges based on fundamental rights. Instead, the EU Charter should be used to interpret existing copyright rules. The Opinion can also be seen as an appeal to the legislator to review limitations and exceptions and to recalibrate, if necessary, the balance in copyright 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).]