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Fundamental rights as external constraints on copyright law: horizontal effect of the EU Charter after Funke Medien and Spiegel Online
Abstract
1 Introduction
Can fundamental rights function as external restrictions to copyright law, that is should certain uses be exempt from copyright infringement in order to safeguard such rights, even though no limitation or exception applies? This question has been extensively debated in academic circles for years, if not decades.¹ This debate essentially concerns the possible extent of horizontal effect of fundamental rights in disputes between private parties. Is their effect merely indirect, meaning that copyright law must be interpreted and applied insofar as possible in a manner that is consistent with those rights, or can fundamental rights also have horizontal direct effect, either by imposing subjective duties on private right holders or by requiring disapplication of provisions of copyright law when a consistent interpretation is not possible? The answer to this question is of particular relevance in copyright systems such as those in the EU, which work with a closed catalogue of limitations and exceptions.
... 66 Similarly, in respect of remedies, EU law does not prescribe when national courts must grant a particular remedy, only that they are in a position to do so in appropriate circumstances. 67 What constitutes such circumstances is largely a matter of national law and of appreciation by national courts. 68 When deciding on the applicability of limitations or exceptions, or on the appropriateness of a particular remedy in the concrete circumstances of the case, it is not unusual that national courts resolve the case by carefully weighing conflicting rights and interests against each other. ...
This article critically examines the ECJ’s use of fundamental rights and balancing rhetoric in its copyright case law. It distinguishes between its use in two main contexts: the interpretation of EU secondary legislation itself and the delineation of the limits of
the discretion left to Member States in that legislation. It explains how the ECJ, despite heavy use of balancing rhetoric, applies context-specific techniques to avoid actual substantive balancing of normative arguments and suggests that it has context-specific reasons for doing so. This context-sensitive examination of the case law not only helps us to better understand the problems with the ECJ’s reliance on balancing rhetoric, but it also elucidates the relationship between balancing by the ECJ and balancing in individual cases by national courts, as well as between the EU Charter and national fundamental rights.
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