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Ekonomi och samhälle
Economics and Society
Skrifter utgivna vid Svenska handelshögskolan
Publications of the Hanken School of Economics
Nr 334
Daniël Joseph Wietse Jongsma
Creating EU Copyright Law
Striking a Fair Balance
Helsinki 2019
Creating EU Copyright Law: Striking a Fair Balance
Key words: Balancing; Copyright; European Union; Fair Balance; Fundamental Rights;
Harmonization; Proportionality
© Hanken School of Economics & Daniël Jongsma, 2019
Daniël Jongsma
Hanken School of Economics
Department of Accounting and Commercial Law, Commercial Law
P.O.Box 479, 00101 Helsinki, Finland
Hanken School of Economics
ISBN 978-952-232-398-9 (printed)
ISBN 978-952-232-399-6 (PDF)
ISSN-L 0424-7256
ISSN 0424-7256 (printed)
ISSN 2242-699X (PDF)
Hansaprint Oy, Turenki 2019
ACKNOWLEDGEMENTS
“In der Beschränkung zeigt sich erst der Meister,
Und das Gesetz nur kann uns Freiheit geben.”
Johann Wolfgang von Goethe, Natur und Kunst, around 1800
In keeping with the idea that “mastery is revealed in limitation”, I originally intended for
this book to be considerably shorter, even if many doctoral dissertations in the legal
domain are manifold longer than this one. However, with every revision, the text only
got longer, never shorter. In that respect, I have yet a lot to learn.
This book is the result of five years of thinking about judicial norm-making in EU
copyright law. It would not have seen daylight, if not for the support of many people.
First of all, I want to thank my degree supervisor professor Niklas Bruun as well as
professor Nari Lee, who very much took on the role of informal supervisor, for their
inspired guidance. I am also very grateful to professors Jonathan Griffiths and Tuomas
Mylly, the pre-examiners of this dissertation, for their valuable comments, suggestions
and valid but constructive criticism. I also want to thank professor Griffiths for agreeing
to come all the way to Helsinki in the middle of Finnish winter to act as opponent during
the public defence of this dissertation.
A word of thanks also to all my friends and to my colleagues at Hanken, both former and
current, for their consistent encouragements. In particular I thank Mikko Antikainen,
with whom I have travelled around the world to find inspiration for our research. I am
also very grateful to Barbara Cavonius for helping me getting this book ready for print.
I must also thank the Finnish Cultural Foundation, the Hanken Support Foundation and
Hanken School of Economics for their financial support of my research.
Finally, my deepest gratitude goes to my parents, to whom I dedicate this book, and to
my fiancée Heidi, who has been my greatest cheerleader throughout this entire journey.
Their support has been invaluable and unconditional. Without them, I would have not
been able to see this project through to the end. Heidi, I will do my best to be the same
rock you have been for me as you continue towards the completion of your own doctoral
research.
iv
CONTENTS
Table of Abbreviations .................................................................................. vii
1 Introduction ............................................................................................. 1
1.1 Introduction to the research theme ............................................................................... 1
1.2 Context of and motivation for the research ................................................................... 3
1.2.1 EU harmonization and the move towards constitutionalization .............................. 3
1.2.2 Previous research ....................................................................................................... 7
1.3 Research Question .......................................................................................................... 9
1.4 Limitations of the study ................................................................................................ 10
1.5 Structure of the study .................................................................................................... 11
Part I – EU Copyright and the Search for Balance ........................................ 14
2 The Creation of Copyright Law by the CJEU ........................................... 15
2.1 Introduction .................................................................................................................. 15
2.2 Hard cases and discretion in EU copyright law ........................................................... 16
2.3 The CJEU’s (alleged) harmonization agenda ............................................................... 23
2.4 Interpretation of the copyright acquis ......................................................................... 29
2.4.1 General observations ............................................................................................... 29
2.4.2 Economic rights and protected subject-matter ....................................................... 33
2.4.2.1 Protected subject-matter ................................................................................. 33
2.4.2.2 The reproduction right .................................................................................... 35
2.4.2.3 The right of communication to the public ...................................................... 39
2.4.2.4 The distribution right ...................................................................................... 48
2.4.2.5 The lending right ............................................................................................. 50
2.4.2.6 The sui generis database right ........................................................................ 51
2.4.3 Limitations and exceptions ...................................................................................... 52
2.5 The creation of EU copyright: striking a balance? ....................................................... 61
Part II – Balancing and Proportionality Analysis in and beyond Copyright 64
3 Balancing and Proportionality Analysis: A Theoretical Perspective ..... 65
3.1 Introduction .................................................................................................................. 65
3.2 A brief legal theoretical view of balancing and proportionality analysis .................... 65
3.2.1 Elements of balancing and proportionality ............................................................. 65
3.2.2 Proportionality, balancing and discretion ............................................................... 69
3.2.3 Some further remarks .............................................................................................. 78
3.3 In defence of (judicial) balancing ................................................................................. 80
3.3.1 The lack of rational decision-making ...................................................................... 80
3.3.2 Judicial review, democracy and judges as legislators ............................................. 84
3.4 Synthesis ....................................................................................................................... 88
4 Proportionality, Fundamental Rights and the Concept of Fair Balance in
Copyright Adjudication and beyond ............................................................. 90
4.1 Introduction .................................................................................................................. 90
4.2 Proportionality and balancing at the European Court of Human Rights ................... 90
v
4.2.1 General observations ............................................................................................... 90
4.2.2 The European Court of Human Rights and copyright ............................................ 95
4.3 Proportionality and balancing at the Court of Justice ............................................... 103
4.3.1 General observations ............................................................................................. 103
4.3.2 The CJEU, copyright, and proportionality ............................................................. 113
4.3.2.1 Free movement and copyright ....................................................................... 114
4.3.2.2 Proportionality review of EU copyright legislation ...................................... 120
4.3.2.3 The interpretation of the copyright acquis and the concept of fair balance 125
(i) Fair balance and fair compensation .................................................................. 125
(ii) Fair balance and interpretation and application of copyright law ................... 126
(iii) Fair balance and enforcement against intermediaries ..................................... 135
4.4 Evaluation ................................................................................................................... 143
4.4.1 The essence of rights .............................................................................................. 144
4.4.2 The nature of balancing: review or optimization? ................................................ 147
4.4.3 The (lack of a) CJEU methodology ........................................................................ 153
Part III – Striking a Fair Balance in EU Copyright Law .............................. 156
5 The Principles Underlying EU Copyright Law ...................................... 157
5.1 Introduction ................................................................................................................. 157
5.2 The constitutional foundations of copyright ............................................................... 157
5.2.1 Copyright as (constitutional) property ................................................................... 157
5.2.1.1 Article 1P1 ECHR ........................................................................................... 158
5.2.1.2 Article 17 EU Charter ..................................................................................... 161
(i) Article 17(1) of the EU Charter .......................................................................... 162
(ii) Article 17(2) of the EU Charter .......................................................................... 163
5.2.2 The rights of authors as protected by international human rights conventions .. 168
5.3 The objectives of EU copyright law ............................................................................ 172
5.3.1 The focus of the EU legislature .............................................................................. 172
5.3.2 The primary, secondary and tertiary objectives of EU copyright law ................... 176
5.4 The reward as the overarching objective of EU copyright law .................................. 178
5.4.1 The concepts of exploitation and harm as tools to delineate the scope
of protection ........................................................................................................... 179
5.4.1.1 The concept of exploitation ........................................................................... 179
5.4.1.2 The degree of fulfilment of the remuneration objective and
the concept of harm ....................................................................................... 180
5.4.2 Rewarding the author: the uncertain premises of EU copyright law ................... 183
5.4.2.1 Empirical uncertainty: the incentivizing power of copyright ....................... 183
5.4.2.2 Normative uncertainty: the reward as a matter of fairness ......................... 186
5.4.3 The importance of protection to the overarching objective of
rewarding right holders ......................................................................................... 189
5.5 Other rights and interests ............................................................................................ 191
5.6 Synthesis ..................................................................................................................... 194
6 Fundamental Rights Balancing and the Interpretation and Application
of the Law .............................................................................................. 195
6.1 Introduction ................................................................................................................ 195
6.2 General observations .................................................................................................. 196
6.3 The subject-matter of copyright and the concept of balance .................................... 199
6.4 The interpretation of exclusive rights ....................................................................... 200
vi
6.5 The interpretation and application of limitations and exceptions ............................ 203
6.5.1 The Member States’ margin of discretion ............................................................. 203
6.5.2 The interpretation of specific (autonomous) concepts ......................................... 206
6.5.3 The implementation and application of open norms ........................................... 208
6.5.3.1 The two sides of open norms ....................................................................... 208
6.5.3.2 Member State implementations ................................................................... 209
6.5.4 The role of the three-step test ................................................................................ 213
6.5.4.1 The debilitating interpretation of the three-step test ................................... 213
6.5.4.2 A reconciliatory approach ............................................................................. 215
6.6 Synthesis ..................................................................................................................... 221
7 Enforcement of Copyright against Direct Infringers ........................... 223
7.1 Introduction ................................................................................................................ 223
7.2 From denial of conflict to qualified acceptance ......................................................... 223
7.3 Enforcement as a (dis)proportionate interference with fundamental rights ............ 228
7.3.1 The scope of application of the EU law .................................................................. 229
7.3.2 Fundamental rights as an exception in themselves: horizontal direct effect? ...... 230
7.3.3 Indirect (horizontal) effect and available remedies .............................................. 232
7.4 Synthesis ..................................................................................................................... 242
Part IV – Conclusions .................................................................................. 244
8 Concluding and Summarizing Comments ............................................ 245
8.1 The CJEU and the creation of copyright ................................................................... 245
8.2 The impact of fundamental rights on the scope of protection ................................. 247
8.3 Striking a fair balance: the healing power of balancing ............................................ 254
Bibliography ............................................................................................... 258
Table of Cases .............................................................................................. 284
vii
TABLE OF ABBREVIATIONS
AG
Advocate General
ALAI
Association Littéraire et Artistique Internationale
1988 Green Paper
Green Paper on Copyright and the Challenge of Technology
– Copyright Issues Requiring Immediate Action (Brussels, 7
June 1988, COM (88) 172 final)
1991 Software Directive
Council Directive 91/250/EEC of 14 May 1991 on the legal
protection of computer programs, OJ L 122, 17 May 1991, p.
42–46
1992 Rental and Lending
Rights Directive
Council Directive 92/100/EEC of 19 November 1992 on
rental right and lending right and on certain rights related to
copyright in the field of intellectual property, OJ L 346, 27
November 1992, p. 61–66
1993 Term Directive
Council Directive 93/98/EEC of 29 October 1993
harmonizing the term of protection of copyright and certain
related rights, OJ L 290, 24 November 1993, p. 9–13
1995 Green Paper
Green Paper on Copyright and Related Rights in the
Information Society (Brussels, 19 July 1995, COM(95) 382
final)
Berne Convention
The Berne Convention for the Protection of Literary and
Artistic Works (as amended on 28 September 1979)
CJEU
Court of Justice of the European Union
CRM Directive
Directive 2014/26/EU of the European Parliament and of
the Council of 26 February 2014 on collective management
of copyright and related rights and multi-territorial licensing
of rights in musical works for online use in the internal
market, OJ L 84, 20 March 2014, p. 72–98
Cross-Border Portability
Regulation
Regulation (EU) 2017/1128 of the European Parliament and
of the Council of 14 June 2017 on cross-border portability of
online content services in the internal market, OJ L 168, 30
June 2017, p. 1–11
viii
Database Directive
Directive 96/9/EC of the European Parliament and of the
Council of 11 March 1996 on the legal protection of
databases, OJ L 77, 27 March 1996, p. 20–28
Directive implementing
the Marrakesh Treaty
Directive (EU) 2017/1564 of the European Parliament and of
the Council of 13 September 2017 on certain permitted uses
of certain works and other subject matter protected by
copyright and related rights for the benefit of persons who
are blind, visually impaired or otherwise print-disabled and
amending Directive 2001/29/EC on the harmonisation of
certain aspects of copyright and related rights in the
information society, OJ L 242, 20 September 2017, p. 6–13
DSM Directive
Directive (EU) 2019/790 of the European Parliament and of
the Council of 17 April 2019 on copyright and related rights
in the Digital Single Market and amending Directives
96/9/EC and 2001/29/EC, OJ L 130, 17 May 2019, p. 92–
125
E-Commerce Directive
Directive 2000/31/EC of the European Parliament and of
the Council of 8 June 2000 on certain legal aspects of
information society services, in particular electronic
commerce, in the Internal Market, OJ L 178, 17 July 2000,
p. 1–16
ECHR
European Convention on Human Rights, as amended by
Protocols Nos. 11 and 14, and supplemented by Protocols
Nos. 1, 4, 6, 7, 12, 13 and 16
ECtHR
European Court of Human Rights
EC
Treaty establishing the European Community (Consolidated
version 2002), OJ C 325, 24 December 2002, p. 33–184
EEC
Treaty establishing the European Economic Community
EIPR
European Intellectual Property Review
Enforcement Directive
Directive 2004/48/EC of the European Parliament and of
the Council of 29 April 2004 on the enforcement of
intellectual property rights (OJ L 157, 30 April 2004),
corrigendum published in OJ L 195, 2 June 2004, p. 16–25
ix
EU Charter
(also: Charter)
Charter of Fundamental Rights of the European Union, OJ C
326, 26 October 2012, p. 391–407
Geneva Convention
Convention for the Protection of Producers of Phonograms
Against Unauthorized Duplication of Their Phonograms,
Geneva, 29 October 1971
GRUR
Gewerblicher Rechtsschutz und Urheberrecht
GRUR Int.
Gewerblicher Rechtsschutz und Urheberrecht Interna-
tionaler Teil
ICCPR
International Covenant on Civil and Political Rights.
Adopted and opened for signature, ratification and accession
by General Assembly resolution 2200A (XXI) of 16
December 1966 and entry into force 23 March 1976
ICECSR
International Covenant on Economic, Social and Cultural
Rights. Adopted and opened for signature, ratification and
accession by General Assembly resolution 2200A (XXI) of 16
December 1966
and entry into force 3 January 1976
IIC
International Review of Intellectual Property and
Competition Law
InfoSoc Directive
Directive 2001/29/EC of the European Parliament and of
the Council of 22 May 2001 on the harmonisation of certain
aspects of copyright and related rights in the information
society, OJ L 167, 22 June 2001, p. 10–19
Online Broadcasting and
Retransmission Directive
Directive (EU) 2019/789 of the European Parliament and of
the Council of 17 April 2019 laying down rules on the exercise
of copyright and related rights applicable to certain online
transmissions of broadcasting organisations and
retransmissions of television and radio programmes, and
amending Council Directive 93/83/EEC, OJ L 130, 17 May
2019, p. 82–91
Orphan Works Directive
Directive 2012/28/EU of the European Parliament and of
the Council of 25 October 2012 on certain permitted uses of
orphan works, OJ L 299, 27 October 2012, p. 5–12
x
Regulation
implementing the
Marrakesh Treaty
Regulation (EU) 2017/1563 of the European Parliament and
of the Council of 13 September 2017 on the cross-border
exchange between the Union and third countries of
accessible format copies of certain works and other subject
matter protected by copyright and related rights for the
benefit of persons who are blind, visually impaired or
otherwise print-disabled, OJ L 242, 20 September 2017, p.
1–5
Rental and Lending
Rights Directive
Directive 2006/115/EC of the European Parliament and of
the Council of 12 December 2006 on rental right and lending
right and on certain rights related to copyright in the field of
intellectual property (codified version), OJ L 376, 27
December 2006, p. 28–35
Resale Right Directive
Directive 2001/84/EC of the European Parliament and of
the Council of 27 September 2001 on the resale right for the
benefit of the author of an original work of art OJ L 272, 13
October 2001, p. 32–36
RIDA
Revue Internationale du droit d’auteur
Rome Convention
International Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations,
Rome, 26 October 1961
SatCab Directive
Council Directive 93/83/EEC of 27 September 1993 on the
coordination of certain rules concerning copyright and rights
related to copyright applicable to satellite broadcasting and
cable retransmission, OJ L 248, 6 October 1993, p. 15–21
Software Directive
Directive 2009/24/EC of the European Parliament and of
the Council of 23 April 2009 on the legal protection of
computer programs (Codified version), OJ L 111, 5 May
2009, p. 16–22
Term Directive
(amended in 2011)
Directive 2006/116/EC of the European Parliament and of
the Council of 12 December 2006 on the term of protection
of copyright and certain related rights (codified version), OJ
L 372, 27 December 2006, p. 12–18, as amended by Directive
2011/77/EU of the European Parliament and of the Council
of 27 September 2011, OJ L 265, 11 October 2011, p. 1–5
xi
TEU
Consolidated version of the Treaty on European Union, OJ C
326, 26 October 2012, p. 13–390
TFEU
Consolidated version of the Treaty on the Functioning of the
European Union, OJ C 326, 26 October 2012, p. 47–390
TPMs
Technological Propection Measures
TRIPS Agreement
Agreement on Trade-Related Aspects of Intellectual
Property Rights, Including Trade in Counterfeit Goods,
Annex 1C to the Agreement Establishing the World Trade
Organization, Marrakesh, 15 April 1994
WCT
WIPO Copyright Treaty, Geneva, 20 December 1996
WIPO Copyright Treaties
The WCT and WPPT
WPPT
WIPO Performances and Phonograms Treaty, Geneva, 20
December 1996
1
1 INTRODUCTION
1.1 Introduction to the research theme
1. Open questions. Should an Internet user be freely permitted to provide
hyperlinks to protected works available elsewhere online? Should those same users
be allowed to freely watch television series and movies online, even if they have been
made available by third parties without consent of the holder of the copyright? May a
musician copy two seconds from a musical recording made by another artist and
incorporate that fragment into their own musical creation? The answer to these kinds
of questions is now largely, if not entirely, governed by harmonized EU copyright law.
In essence, such questions concern the reconciliation (or: “balancing”) of the interests
of authors and those of users, and the public in general. They can be traced back to
more general questions, such as: How far should the control by authors over the
cultural artefacts they create extend? Conversely, which acts should users be
permitted to freely exercise? In which instances should exclusivity be replaced by a
mere right to remuneration?
2. A search for balance. The question about how copyright (ought to)
balance(s) the interests of authors and of others has always been at the nucleus of
copyright policy. It is a perennial debate whether copyright ought to offer strong
protection to the author and their work as a matter of justice or narrower protection
to facilitate greater dissemination of literary and artistic creations to the public. The
overdrawn distinction made in this regard between civil law and common law
jurisdictions is well-known: civil law jurisdictions are said to view copyright as a
codification of natural rights of the author while common law jurisdictions are said to
view it instead as a simple incentive to spur on creation in the public interest.
Accordingly, early continental copyright laws are often thought to have been
preoccupied with safeguarding the position of authors as custodians of their
intellectual creations. Famous, in this regard, are the statements by Le Chapelier and
Lakanal, the respective rapporteurs for the first French copyright laws enacted in 1791
and 1793. Le Chapelier declared that the author’s work is “[t]he most sacred, the most
legitimate, the most unassailable, and, if I may say so, the most personal of all
properties”.
1
In turn, Lakanal stated that the property of “the works of genius” is “of
all properties, the least susceptible to criticism, whose increase can harm neither
republican equality, nor be an affront to liberty”.
2
Some commentators have seen in
these statements a reflection of the desire at the time to give the author the absolute
1
Le Chapelier 1791.
2
Lakanal 1793.
2
dominion over their work.
3
Others, however, have pointed out that continental
legislatures, certainly early on, ultimately showed great deference to the general
interest.
4
For instance, early 20th century German copyright acts included rather
broad exceptions to authors’ rights,
5
in France some judge-made exceptions arose,
6
and the argument for a perpetual protection of the author’s economic interest in their
work lost out to arguments stressing the public interest.
7
Conversely, even if one
conceptualizes copyright protection primarily as a way to incentivize creation and
stimulate dissemination, this is achieved by protecting the authorial interest in having
some form of control over the exploitation of their work. Depending on one’s ideas on
economic efficiency, this may result in broad protection bordering on “absolute
dominion” or narrow protection providing a strict incentive for creation, or
somewhere in between. Therefore, whatever conception one has of copyright, it is
always a matter of “balance”. The contentious issue is where this balance is struck.
3. EU harmonization. As copyright protection slowly expanded over the
centuries, largely to account for new ways in which literary and artistic works could
be exploited as a consequence of technological and societal change, the borders
between authorial control and user freedom have been continually redrawn. In EU
Member States, those borders are now largely dictated by EU law, which started the
ongoing process of harmonization of copyright law in the late 1980s. As a result of this
process of harmonization of copyright law, the questions posed at the beginning of
this introduction have to be readdressed, meaning that the answers previously given
3
Cf. Recht 1969, p. 48: “On a voulu donner à l’auteur la maîtrise totale et exclusive sur son
œuvre, le droit le plus absolu qu’un individu puisse posséder sur une chose et on ne pouvait, à
cette époque, trouver de terme exprimant mieux cette maîtrise que celui de « propriété »”.
4
Cf. Geiger 2004a, p. 76 and Ginsburg 1990, p. 1005 et seq., who points out that “[o]nce
disseminated, Le Chapelier went on to assert, the manuscript is ‘given over to the public . . . by
the nature of things, everything is finished for the author and the publisher when the public
has in this way through publication acquired the work.’” (p. 1007). In regard to the report by
Lakanal she considered that his rhetoric “displays a looking-over-the-shoulder quality
inconsistent with a firm conviction of the centrality of authors' personal claims” (p. 1009). A
similar interpretation of the reports of Lakanal and Le Chapelier can be found in Geiger 2004a,
p. 74-76. Lucas 2008, p. 82 is critical of this assertion. He remarks that the reservations made
by Le Chapelier should not be interpreted as intended to place any restriction on the rights of
the author, but as the simple statement that once published the author cannot restrict access
to his work by the public.
5
The Gesetz betreffend das Urheberrecht an Werken der Literatur und der Tonkunst vom.
19. Juni 1901 (LUG) and the Gesetz betreffend das Urheberrecht an Werken der bildende
Künste und der Photographie vom 9. Januar 1907 (KUG), respectively. See, for instance, §
15(2) LUG and § 18 KUG, including general exceptions for personal use and § 22a, which
allowed the public performance of works incorporated into a phonogram manufactured with
permission of the author, excluding by radio broadcast (although restrictively interpreted by
German Federal Supreme Court (First Civil Senate), 6 November 1953, I ZR 97/52 –
Öffentliche Schallplattenübertragung, published in GRUR 1954, p. 216).
6
See Galopin 2012, p. 3-4 for some examples. He notes that exceptions were in an “embryonic
state” and received little attention from legal commentators.
7
Cf. Strowel 1993, p. 89 et seq. and Ulmer 1980, p. 59.
3
to such questions in the individual Member States might be subject to change. The
Court of Justice of the European Union plays a leading role in defining the boundaries
between the rights and obligations of authors and of users. In facts, all three of the
concrete questions with which this introduction started have in the past been referred
to the CJEU
8
by national courts because the EU acquis communautaire did not
provide an unambiguous answer. Consequently, the CJEU is given the opportunity to
(at least partially) determine which uses are free and which can be controlled by
authors and other right holders.
4. A potential constitutional conflict. While the EU started and continued
the process of harmonization of copyright law, the ongoing Third Industrial (or:
Digital) Revolution led to a great proliferation of the spread of and of access to
information. However, some of this “information”, such as books, movies and music,
may be the subject of exclusive control by their creators. At the same time, users have
claimed it is their fundamental right to freely access information. Thus, the question
whether, for instance, Internet users should be permitted to view “illegal” online
streaming video may touch on their right to freedom of information. Similarly, the
artist wanting to build on another artist’s work may feel their right to artistic freedom
is limited if they can be prevented from doing so by that second artist invoking their
copyright. The scope of the rights of authors is therefore not merely a question of
policy, but also a question of realization of fundamental rights and, therefore, a legal
question. After all, it is in principle the task of courts to police the boundaries of what
fundamental rights demand. The CJEU therefore not only has the power to impact
the scope of copyright protection through the interpretation of the harmonizing
copyright directives as such, but also through the interpretation of the Charter of
Fundamental Rights of the European Union, since the adoption of the Treaty of
Lisbon the highest fundamental rights document of the EU.
1.2 Context of and motivation for the research
1.2.1 EU harmonization and the move towards constitutionalization
5. Two developments. This dissertation studies the confluence of two
developments in EU copyright law: (i) the growing role of the CJEU in the process of
the shaping of copyright in the EU and (ii) the constitutionalization of copyright. In
particular, I look at what role fundamental rights play in the process of norm creation
by the CJEU as well as on the ultimate resolution of conflicts between right holders
and users. In this section, I briefly discuss both developments.
8
Hereinafter I consistently use the initialism “CJEU”, also when referring to the predecessor
courts, such as the European Court of Justice.
4
6. EU harmonization and the CJEU. The process of harmonization of
copyright law by the EU has led to a redefinition of the balance of rights and interests
between authors and others. This process started in earnest with the 1988 Green
Paper on Copyright and the Challenge of Technology by the Commission of the
European Communities, the predecessor of the EU Commission. The Green Paper
identified a number of main areas of concern, central among which was the risk of
fragmentation of the internal market created by differences in the scope of
protection.
9
Arguably, the desire to remove obstacles to the functioning of the internal
market has been the prime motive for the subsequent harmonization efforts. The first
endeavor in this regard was the 1991 Software Directive, which required Member
States to grant computer programs copyright protection as literary works.
10
Since
then, twelve more directives directly concerning copyright have followed (not
counting amending and codifying directives), as well as two regulations.
11
Most
recently, on 17 April 2019, the CJEU adopted the latest two additions to this collection
of legislative instruments: the DSM Directive, which has been the subject of extensive
public debate, and the Online Broadcasting and Retransmission Directive. The most
notable harmonizing effort by the EU is arguably still the 2001 InfoSoc Directive,
which effected a “horizontal” harmonization of the – arguably – most important
exclusive rights granted to authors and related rights holders for all categories of
works and which provided an exhaustive catalogue of largely optional limitations and
exceptions to those rights. The result of these legislative efforts is that the balance of
rights and interests is in the first place struck by the EU legislature, which has
provided a unitary basis for most rights granted to authors and to holders of related
rights and for the limitations and exceptions to those rights.
Admittedly, prior to start of the process of EU harmonization, the copyright laws of
the individual Member States had already been aligned to a considerable degree
through several multilateral conventions, such as the Berne and Rome Conventions.
However, due to the large margin of appreciation left by such conventions and in the
absence of a single judicial body overseeing the interpretation of the rights guaranteed
by them – the subjection to the jurisdiction of the International Court of Justice
9
1988 Green Paper, para 1.3.2.
10
This directive was repealed in 2009 and replaced with the new Software Directive.
11
The SatCab Directive from 1993, the Database Directive from 1996, the InfoSoc Directive
from 2001, the Resale Right Directive of 2001, the Rental and Lending Rights Directive from
2006 (which repealed and replaced the 1992 Rental and Lending Rights Directive), the Term
Directive of 2006 (which repealed and replaced the 1993 Term Directive), amended in 2011,
the Enforcement Directive of 2004, the Orphan Works Directive of 2012, the CRM Directive
of 2014, the Directive implementing the Marrakesh Treaty of 2017, the Regulation
implementing the Marrakesh Treaty of 2017, the Portability Regulation of 2017, the DSM
Directive of 2019 and the Online Broadcasting and Retransmission Directive of 2019.
5
cannot count as such – signatory states are to a considerable extent free to determine
the precise scope of protection.
12
This is different in the EU, in large part due to the
control exercised by the CJEU.
Although of course dependent on the cases brought before it, the CJEU has the
authority to further define the scope of the rights and the limitations and exceptions
thereto laid down in EU law, as it has the responsibility to interpret EU law.
Accordingly, typical copyright concepts, like “work”, “reproduction (in part)”,
“public”, “quotation” and “parody”, which all have been developed and fleshed out in
the various Member States over many decades, and sometimes centuries, are now
subject to interpretation by the CJEU. This often means that the CJEU reconstructs
these concepts from the ground up, giving them an entirely new, European
interpretation. In doing so, the CJEU is often faced with hard questions, meaning it
has a considerable margin of discretion. For instance, does an Internet user who
places a hyperlink to a webpage that includes a copyright protected work themselves
make a “communication” to a “public” of that work? Does taking a two-second sample
from a phonogram constitute a “reproduction in part” when used in a new musical
work? Is the making of temporary copies in the random-access memory of a computer
when streaming media from illegal websites a “lawful use” within the meaning of the
mandatory exception provided for in article 5(1) of the InfoSoc Directive, which aims
to exclude certain temporary copies from the scope of the exclusive reproduction
right? The largely open nature of this discretion of the CJEU means it is to a similar
large degree free to find a balanced interpretation that does most justice to all rights
and interests involved. As a result, the relation between authors, other right holders,
intermediary parties, and users is newly established.
7. The constitutionalization of copyright law. The second development
at the centre of this dissertation is the increased emphasis placed on the constitutional
dimension of copyright law. Although few would deny that the (enforcement of)
copyright has the potential to constrain the exercise of fundamental rights, it is
traditionally thought that any incursions into such rights is both justified in order to
attain the objectives pursued (such as protection of the author, or as a means to
provide an incentive), and sufficiently alleviated by the limitations and exceptions
intrinsic to copyright law. Accordingly, numerous (highest) national courts have held
12
Compliance with the TRIPS Agreement, and by operation of article 9(1) of the TRIPS
Agreement also the Berne Convention, can be the subject of adjudication by the WTO’s Dispute
Settlement Body. In practice, this fact has arguably not had a substantial impact on the degree
of harmonization effected by these international instruments. So far, only one panel report on
a matter of copyright law has been adopted (Dispute DS160, United States – Section 110(5) of
the US Copyright Act, available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/
ds160_e.htm, last accessed 30 June 2019).
6
in the past that there is in principle no need to ascertain whether copyright
disproportionately infringes upon fundamental rights.
13
Similarly, in legal systems
belonging the civil law droit d’auteur / author’s right tradition such as France and
Germany, copyright law itself is traditionally interpreted in favorem auctoris – to the
benefit of the author, implying inter alia a strict interpretation of limitations and
exceptions.
14
Only relatively recently has there been a certain paradigm shift towards
the explicit recognition that limitations and exceptions may need to construed more
broadly in order to properly safeguard the exercise of certain fundamental rights or
the public interest. The paradigm defining example in this regard is without a doubt
the Germania 3 decision by the German Federal Constitutional Court from 2000, in
which it prescribed a broad interpretation of the quotation exception to enable the
artistic engagement with a prior literary work in furtherance of the (German
constitutional right to) freedom of art.
15
Around the same time, at the turn of the
millennium, the potential “conflict” between copyright and fundamental rights
started to receive significantly more attention in legal literature.
16
Many contributions
focused on the (re)conceptualization of copyright within the framework provided by
fundamental rights. Others focused more concretely on specific potential conflicts
between the exclusive rights guaranteed to authors and other right holders and states’
fundamental rights obligations.
17
This has led to the general, if not unanimous,
acceptance that fundamental rights ought to play a role in both the construction of
copyright law itself, as well as an external “safety valve” to protect against overbroad
copyright protection.
This paradigm shift has also reached Europe’s highest courts. In two 2013 landmark
decisions, the ECtHR held that copyright (strictly speaking: the conviction for
copyright infringement) interferes with the right to freedom of expression guaranteed
by article 10 ECHR and that such an interference must be “necessary in a democratic
society”, as required by article 10(2) ECHR.
18
The CJEU, in turn, has on several
13
This is discussed in § 180.
14
Cf., regarding France, Galopin 2012, p. 290-291, including further references (see also the
critical appraisal of some more liberal judgements Pollaud-Dulian 2014, p. 78) and, regarding
Germany, Melichar 2010, paras 18-22 (p. 942-944).
15
German Federal Constitutional Court (First Senate), 29 July 2000, 1 BvR 825/98 –
Germania 3, English Translation published in EIPR 2013, p. 646.
16
The potentially complicated nature of the relationship between copyright and fundamental
rights certainly was certainly not ignored prior to the 21st century. See for two early European
contributions, e.g., Cohen Jehoram 1983 and Löffler 1980, and for two American
contributions, e.g., Goldstein 1970 and Nimmer 1970.
17
For an overview, see the next section.
18
Decision of the European Court of Human Rights (Fifth Section), in the case of Ashby
Donald and Others v. France, Appl. No. 36769/08, of 10 January 2013 and Decision of the
European Court of Human Rights (Fifth Section), in the case of Neij and Sunde Kolmisoppi v.
Sweden, Appl. No. 40397/12, of 19 February 2013, discussed in Section 4.2.2.
7
occasions taken account of fundamental rights in the interpretation of substantive
copyright norms, emphasizing that both the interpretation and the application of
specific norms of copyright law must strike a “fair balance” between the rights and
interests of right holders and those of users.
19
In three seminal decisions of 29 July
2019 the CJEU further elaborated on the relationship between copyright and
fundamental rights in a series of references by the German Federal Supreme Court.
Although it concluded that fundamental rights cannot justify limitations and
exceptions beyond those provided for in the aforementioned InfoSoc Directive, it
emphasized throughout those decisions that the harmonization effected by that
directive intends to strike a fair balance between the “interests of holders of copyright
and related rights” and the interests and fundamental rights of users, and that any
interpretation therefore must take account of the fundamental rights affected by it. At
the same time, the Court showed a willingness to both construe exclusive rights
narrowly and limitations and exceptions broadly in order to ”strike a fair balance” and
accommodate the enjoyment of fundamental rights of users.
20
Fundamental rights are
thus used as a tool to define the scope of the rights and obligations of right holders
and of users.
1.2.2 Previous research
8. An overview. The relation between copyright and fundamental rights in
general, as well as the role of the CJEU in the harmonization process and the way it
takes account of fundamental rights has been extensively discussed, in particular
during the past two decades. As alluded to in the previous section, many authors have
contemplated the metaphysics of copyright in light of fundamental rights demands.
In general, this research has clarified the tension that exists between, on the one hand,
granting exclusive control to creators over certain literary and artistic subject-matter
and, on the other hand, fundamental rights such as the right to free access to
information and freedom of expression, and the importance of copyright laws taking
account of that tension.
21
In the international context, specific topic of discussion has
19
See, e.g., Case C-145/10 Painer ECLI:EU:C:2011:798; Case C-201/13 Deckmyn and
Vrijheidsfonds ECLI:EU:C:2014:2132 and Case C-161/17 Renckhoff ECLI:EU:C:2018:634. An
exhaustive overview of CJEU case law to this effect follows in Section 4.3.2.3.
20
Case C-469/17 Funke Medien NRW (Afghanistan Papers) ECLI:EU:C:2019:623; Case C-
476/17 Pelham and Others (Metall auf Metall) ECLI:EU:C:2019:624 and Case C-516/17
Spiegel Online ECLI:EU:C:2019:625.
21
E.g. Angelopoulos 2008, Balganesh 2004, Barendt 2005, Burrell & Coleman 2005, in
particular chapter 1, Derclaye 2008, Macciacchini 2000, Samuelson 2002, Geiger 2004a,
Geiger 2006a, Geiger 2009a, Geiger 2010, Geiger 2012, Ohly 2013, Peukert 2015, Porsdam
2007, Treiger-Bar-Am 2007 and Westkamp 2007. With regard to intellectual property in
general, see also, e.g., Geiger 2004b, Geiger 2006b, Godt 2014, Helfer & Austin 2011, Mylly
2005, Yu 2007 and Yu 2010.
8
been the potentially conflicting multilateral obligations arising from agreements such
as the Berne Convention and the TRIPS Agreement on the one hand, and human
rights documents such as the UDHR and the ICESCR on the other hand.
22
In the
European context, much attention has been given the potential conflict between
national copyright norms and national constitutional rights or supranational
fundamental rights norms, in particular those in the ECHR.
23
At the same time, others
have examined the human rights nature of copyright itself, in particular of the rights
of authors, as a basis for (a particular level of) copyright protection.
24
As the ECtHR
and the CJEU started to render judgements on the interface between copyright and
fundamental rights, those judgements of course have become the subject of
discussion. Several contributions have provided a general overview of ECtHR and/or
CJEU case law up until a certain point in time.
25
Some commentators have sharply
criticized in particular the CJEU’s (lack of a) methodology when dealing with conflicts
between the rights and interests of right holders and the fundamental rights of others,
suggesting the use of fundamental rights arguments in copyright adjudication is
mainly a strategic tool to further EU-wide integration of copyright.
26
Other notable research concerning the developments identified in the previous
section has covered, for instance, the relationship between “Intellectual Property and
European Economic Constitutional Law”,
27
the proportionality of enforcement
measures against intermediaries,
28
the “harmonization by interpretation” of the
concept of originality by the CJEU,
29
the normative basis of European copyright law,
30
and the influence of technological change on copyright’s balance.
31
Note should also
be made of numerous collections of essays concerning the relationship between
22
E.g. Cornides 2004, Helfer 2003 and Plomer 2013.
23
E.g. Akester 2006, Alberdingk Thijm & de Vries 2015, Birnhack 2003, de Cock Buning 2005,
Geiger 2007, Geiger 2018, Graber 2005, Helfer 2008, Hugenholtz 2001, Hugenholtz 2003,
Rosén 2006, Plomer 2016, Strowel & Tulkens 2005, Voorhoof 2006 and Voorhoof 2015. With
regard to intellectual property in general, see also, e.g., the early contributions by Pinto 2002
and Ryan 2001.
24
E.g. Chapman 2001, Dietz 2005, Dietz 2006, Geiger 2009b, Griffiths & McDonagh 2013,
Kéréver 1999, Ostergard 1999 and Vivant 2007.
25
See the recent discussions by Jütte 2016 and van Deursen & Snijders 2018. For a recent
general overview of the intellectual property case law of the ECtHR see Geiger & Izyumenko
2018. For a recent general overview of CJEU case law concerning “intellectual property under
the Charter” see Oliver & Stothers 2017. For recent comparative perspectives see Ginsburg &
Lucas 2016 & Rigamonti 2017.
26
E.g. Griffiths 2013a, Husovec 2016 and Mylly 2015.
27
Mylly 2009.
28
Angelopoulos & Smet 2016, Fischman Afori 2014, Geiger & Izyumenko 2016, Izyumenko
2016 and Teunissen 2018.
29
Rosati 2013.
30
E.g. Ramalho 2016.
31
E.g. Efroni 2011 and Hua 2014.
9
copyright and fundamental rights.
32
Finally, specific mention should be made of the
2019 monograph by Eleonora Rosati on “Copyright and the Court of Justice of the
European Union”, which was released shortly before the conclusion of this study.
33
Rosati extensively discusses the contribution made by the CJEU to the construction
of a harmonized EU copyright and gives an exhaustive overview of the different
interpretative arguments used by the CJEU in its copyright decisions.
The literature cited in this section, as well as many other contributions, is discussed
further, where relevant, throughout this dissertation.
1.3 Research Question
9. Focus of the study. This dissertation builds on this earlier research in two
principal ways. Firstly, it offers a comprehensive and critical analysis of how the use
of fundamental rights balancing impacts the (re)shaping of the scope of protection in
a harmonized EU copyright law, by describing and evaluating on the basis of which
principles the CJEU determines the scope of exclusive rights and of limitations and
exceptions, and how the concept of (fair) balance, and more generally proportionality
analysis, influences copyright adjudication between right holders and users. Secondly,
in order to overcome perceived shortcomings, it proposes a more general and
coherent framework for the use of fundamental rights arguments in the process of
determining the scope of protection offered by copyright law.
The question guiding this research is therefore as follows:
What is and ought to be the role of fundamental rights in determining the scope of
protection in EU copyright law?
The three following preliminary questions are addressed separately:
1) How large is the discretion of the CJEU in regard to the creation of norms of
copyright law and how does it exercise this discretion?
2) How must balancing of normative arguments, such as rights, be conceptualized?
3) What is the meaning and use of the concept of “fair balance”, as referred to by the
CJEU?
The term “scope of protection” is herein used to refer to the protection offered to
authors and related rights holders by the economic rights granted to them, as
32
Notably ALAI & ALADDA 2008, Buydens & Dusollier 2008, Caso & Giovanella 2015, Geiger
2015, Griffiths & Suthersanen 2005, Strowel & Tulkens 2006 and Torremans 2004a. On the
interface between fundamental rights and intellectual property in general see Grosheide 2010,
Torremans 2008a and Torremans 2015
33
Rosati 2019.
10
attenuated by limitations and exceptions, and to the extent that they can be enforced
in a court against users. It does not refer to other elements which may in practice
affect that scope, such as the ability to obtain injunctions against intermediary parties
or the use of contracts or of technological protection measures. Some limitations of
this study are further addressed in the following section.
1.4 Limitations of the study
10. Contracts and TPMs. It is important to be clear about the limitations of
this study. Its main focus is on the impact of fundamental rights on the interpretation
and application of the rights of authors and related rights holders and of the
limitations and exceptions thereto, and how the relationship between right holders
and users is shaped as a result of this process. This relationship is also impacted by
other factors, importantly by contractual relationships between right holders and
users and through the use of technological protection measures (TPMs). The use of
contracts and TPMs may have (and often will) impact the fundamental freedoms of
users.
34
Nevertheless, this issue is excluded from the scope of this study, primarily
because the restrictions that result from such use are primarily caused by right holder
action, whereas this study focuses on the restrictions caused by copyright law itself.
11. Intermediaries. In today’s networked environment, intermediaries such as
internet service providers play an important role in enabling the effective enforcement
of copyright. Measures to this effect taken by intermediaries may have an adverse
impact on the enjoyment and exercise of fundamental rights, such as the right to
freedom of expression and of information and the right to privacy. The CJEU has had
to grapple on several occasions with the question whether an intermediary could be
obligated to take certain measures to protect copyright in light of these fundamental
rights concerns. Although these judgements are discussed and to a certain extent
evaluated,
35
their value is for present purposes mostly of a comparative nature. That
is, how did the CJEU use fundamental rights arguments in these cases? The question
to which extent EU law permits or prohibits the grant of injunctions against
intermediaries forcing them facilitate the enforcement of copyright is not further
addressed.
12. The sui generis database right. The sui generis database right,
introduced in 1996 by the Database Directive, shares many similarities with authors’
rights and related or neighbouring rights. However, as it is rooted in its own particular
34
See, e.g., the study by Mazziotti 2008.
35
See, specifically, Section 4.3.2.3(iii).
11
rationale, and is subject to an entirely separate system of rights and exceptions, this
right is excluded from the scope of this dissertation.
13. Moral rights. The exercise of moral rights may limit the fundamental rights
of others and accordingly the delimitation of their scope may require a balancing
exercise.
36
However, in general, moral rights have not been harmonized by EU law.
Some directives explicitly exclude the exercise of moral rights from their scope.
37
Others as a rule simply do not affect their exercise. Moral rights are therefore not
included within the scope of this study.
14. Fairness. Although the concept of “fair balance” is very much at the centre
of this study, this dissertation focuses primarily on the procedural aspects of
balancing. While question of fairness may impact a balancing decision, I do not
propose to suggest which moral arguments should be guiding let alone decisive. In
other words, this dissertation is not about the appropriate scope of copyright law, but
rather about how courts should approach the question of balance, in particular in view
of potential limitations of fundamental rights.
15. Language limitations. This study focuses on EU law. Insofar as judicial
decisions from Member State courts are used, this is mainly for illustrative purposes.
Due to language limitations these are principally from Dutch, English, French and
German speaking countries. Similarly, only literature in those languages is cited.
16. Limitation in time. The text of this dissertation was finalized on 10
December 2019. Consequently, no judgements, legislation, policy papers, literature or
other materials published after that date have been taken into account.
1.5 Structure of the study
17. Approach and methodology. The research questions will be approached
in the following manner. Part I discusses, in Chapter 2, the competence of the CJEU
to create norms of copyright law, its discretion in that regard, and how it exercises
that competence and discretion (first sub-question). It comprises a systematic legal
dogmatic analysis of the case law of the CJEU concerning the scope of protection
afforded by copyright law, in order to expose “the principles, rules and concepts” that
– currently – govern the scope of protection in EU copyright law.
38
To that end,
Chapter 2 contains a comprehensive overview of CJEU decisions, comprising
36
See, e.g., Lucas-Schloetter 2001.
37
Recital 28 in the preamble to the SatCab Directive, recital 28 in the preamble to the Database
Directive, recital 19 in the preamble to the InfoSoc Directive and recital 20 in the preamble
and art. 9 in the Term Directive.
38
Cf., on this characteristic of the so-called “doctrinal method”, Smits 2015, p. 5.
12
practically all decisions affecting that scope of protection. The analysis identifies the
particular methods of interpretation and legal argumentation used by the Court and
critically assesses to what extent it does so consistently. Accordingly, the first part of
this dissertation is predominantly descriptive and analytical in nature, in that it
describes the existing scope of protection and subjects the CJEU method to
conceptual and systematic analysis.
39
I conclude in Part I that it appears that the CJEU
often implicitly or explicitly conducts a balancing exercise, but that it hardly ever
makes the premises of that balancing explicit.
Part II builds on this conclusion by shifting the focus to the use of proportionality
analysis and fundamental rights reasoning in legal argumentation, specifically in the
context of copyright. It starts, in Chapter 3, with the discussion of a model of
“balancing” (or: proportionality analysis) as it has been developed in legal and
constitutional rights theory (second sub-question). This is appropriate because,
although the relation between copyright and fundamental rights has been the subject
of extensive prior examination, as noted in Section 1.2.2, I believe our understanding
of the issue can still benefit from a more comprehensive discussion in light its legal
theoretical underpinnings. I suggest that this model can explain how balancing and
proportionality analysis can be used both as a methodology to review the
constitutionality of legislation and as a tool to guide courts in judicial norm-making.
It is strongly inspired by the work of well-known scholars such as Robert Alexy,
Aharon Barak, Julian Rivers and Jan Sieckmann. As such, the model is open to
familiar objections, which – not entirely surprisingly – can also be heard in regard to
balancing in the context of copyright. These objections are discussed and ultimately
considered (largely) unconvincing. The analytical framework provided by this model
is used in Chapter 4 to analyse and evaluate the use of balancing, specifically the
concept of “fair balance”, by both the European Court of Human Rights and the
European Court of Justice, in general as well as more extensively with regard to
copyright matters. This analysis illuminates how balancing discourse has so far been
used in relation to copyright and unveils the shortcomings of that use (third sub-
question). As a whole, Part II therefore combines a legal theoretical approach,
concerned with the character of fundamental rights norms, their relation to secondary
legislation and the relationship between courts and legislature, and a more
conventional descriptive and systematic analysis of the use of proportionality analysis
by the ECtHR and the CJEU, in order to both explain and criticize certain practices.
39
Cf. Alexy 1989, p. 251, who suggests that “legal science, in the narrower and proper sense, is
a mixture of at least three activities: (1) that of describing the law in force, (2) that of subjecting
it to conceptual and systematic analysis, and (3) that of working out proposals about the proper
solutions to legal problems.”.
13
Part III is forward looking and explores more specifically the potential role
fundamental rights arguments can (and sometimes should) play in the determination
of the scope of protection in EU copyright law. To this end, Chapter 5 attempts to
identify the core set of objectives underlying EU copyright law. This is important,
because without clarity about which rights and interests copyright aims to protect any
meaningful talk of balancing of “rights and interests” is impossible. Chapter 6
discusses how proportionality analysis and in particular balancing can influence the
interpretation and application of substantive copyright norms and consequently
shape the rights and obligations of right holders and users, while Chapter 7 discusses
the question to what extent fundamental rights can act as additional, external
constraints on the enforcement of copyright. Part III thus expands on the analysis of
Part II but is instead prescriptive in nature. Building on the model of balancing
outlined in Chapter 3, this part attempts to overcome the shortcomings of the
prevailing approach identified in Chapter 4 by developing a more coherent and
transparent approach to finding appropriate solutions that fit the existing system of
norms.
Finally, Part IV summarizes the findings and offers some concluding observations.
14
PART I – EU COPYRIGHT AND THE SEARCH FOR
BALANCE
In the introduction it was observed that the harmonization of copyright law by the
European Union has led to a redefinition of the balance between the rights and
interests of right holders and users. This has occurred in the first place by the creation
of a harmonized legislative basis for the most important exclusive rights and the
limitations and exceptions to those rights. In the second place, the redefinition occurs
through the interpretation and application of ambiguous concepts in those norms,
most importantly by the Court of Justice of the European Union. In Chapter 2 I
discuss the competence of the CJEU in regard to matters of copyright law and how it
has made use of that competence. In particular, I explore the use of judicial discretion
by the CJEU in determining the scope of copyright protection. I conclude that the
decision-making by the CJEU has at times been erratic, but that it generally has
attempted to construct EU copyright law in a balanced manner, ensuring that right
holders receive an appropriate reward for their creative efforts while competing rights
and interests are observed.
15
2 THE CREATION OF COPYRIGHT LAW BY THE CJEU
2.1 Introduction
18. Introduction. The copyright harmonization process has led to the situation
where most rights traditionally granted by copyright to authors and to holders of
related rights, as well as limitations and exceptions to those rights, now have a basis
in EU law. For instance, the exclusive rights of reproduction, communication to the
public and distribution are in essence fully harmonized for both authors and holders
of related rights. The same is for a large extent true for the possible limitations and
exceptions to those rights. As a result, the interpretation of these all-important rights
is now subject to the authority of the CJEU. It exercises this authority mainly through
the system of preliminary references, whose use increased from just a handful of
references in the entire decade prior to the adoption of the 2001 InfoSoc Directive,
which effected a “horizontal” harmonization of the main exclusive rights as well as the
limitations and exceptions thereto,
1
to on average over five per year since.
There can be little doubt that the CJEU often creates legal norms when it interprets
the scope of exclusive right or of limitations and exceptions. This was recently
illustrated by the questions referred in the Cofemel case, in which the referring court
asks not about the interpretation of a particular provision of EU law, but whether “
the interpretation by the Court of Justice of the European Union of Article 2(a)” of the
InfoSoc Directive itself precludes certain national legislation.
2
In other words, the
CJEU is asked to clarify a rule it has itself developed. This highlights the fact that the
CJEU itself acts as norm-maker, giving shape to the rights and obligations of rights
holders and users. This raises the legitimate question as to how the CJEU goes about
this process of norm-creation, and the extent of its discretion in this regard.
This chapter details how the CJEU creates norms of copyright law and why it has, or:
claims to have, the authority to do so. It clarifies and emphasizes the power of the
CJEU to (re)define the boundaries between uses that are subject to right holder
control (or remuneration) and uses that are free. It concludes that the CJEU often
appears to look for a fair (or balanced) outcome but that it does not always do so in a
principled and consistent manner.
19. Structure. Section 2.2 discusses why the CJEU has discretion to create legal
norms in the first place and gives a general overview of the most important elements
of judicial discretion in EU copyright law. Next, Section 2.3 looks at the alleged
harmonizing agenda of the CJEU with respect to copyright law, in light of its
1
See also, supra, § 6.
2
Case C-683/17 Cofemel ECLI:EU:C:2019:721.
16
discretion to determine the level of harmonization. Section 2.4 contains the meat of
this chapter. It analyses how the CJEU actually interprets provisions of the acquis
containing rights and limitations and exceptions, emphasizing in particular the
Court’s teleological approach, which is aimed at guaranteeing the ability of right
holders to obtain an appropriate reward. Finally, in Section 2.5 I make some
concluding observations with regard to the (inconsistent) approach of the CJEU.
2.2 Hard cases and discretion in EU copyright law
20. Hard cases. The creation of legal norms by the CJEU predominantly occurs
through the system of preliminary references, which enables (and sometimes obliges)
national courts to request the CJEU to interpret EU law if the European norm impacts
the resolution of the proceedings before the national court.
3
For instance, the question
whether the retransmission of a television broadcast containing cinematographic
works in hotel rooms constitutes a communication to the public and is therefore
subject to right holder authorization, required the interpretation of article 3(1) of the
InfoSoc Directive, which obliges Member States to provide authors with the exclusive
right of communication to the public of their works.
4
The CJEU concluded that such
a retransmission is indeed a communication to the public, because it entailed
communicating copyright protected works to what it termed a “new public”, a concept
theretofore foreign to the copyright laws of the Member States.
5
In doing so, the CJEU
(re-)defined the relationship between hotels and authors in the EU, by recognizing an
obligation for the former to obtain authorization for that retransmission from the
latter.
Preliminary references to the CJEU will often concern hard cases, to use terminology
made popular by Ronald Dworkin, for the reason that they will normally concern
questions that are neither clair nor éclairé.
6
Of course, what precisely is a hard case,
is itself a difficult question. Dworkin himself referred to hard cases as cases in which
“the result is not clearly dictated by statute or precedent”,
7
and “in which reasonable
lawyers will disagree about rights, and neither will have available any argument that
must necessarily convince the other”.
8
More pragmatically, a hard case could be
3
See art. 267 TFEU
4
Case C-306/05 SGAE v Rafael Hoteles ECLI:EU:C:2006:764.
5
See further, infra, Section 2.4.2.3.
6
If the rule of EU law is clear and not in need of interpretation (acte clair) or has been
previously clarified by the CJEU (acte éclairé), national courts have no reason to submit a
preliminary reference, nor are national courts “against whose decisions there is no judicial
remedy under national law” (Article 267 TFEU), which as a general rule must submit
preliminary references on the correct interpretation of EU law, obligated to submit such a
reference.
7
Dworkin 1975, p. 1057.
8
Dworkin 1977, p. xiv.
17
defined as a problematic case, in which a problem as to interpretation has been raised
which has not been summarily dismissed by the judge.
9
In the legal positivist tradition
of H.L.A. Hart, who only used the term in his reply to Dworkin, a hard case is defined
as a case in which, due to the vagueness of language and open texture of law generally,
there exists no answer.
10
This ties hardness to the indeterminacy of law. It is in these
cases that the judge will typically have a certain measure of discretion. Dworkin, of
course, famously objected to the notion of indeterminacy in law, maintaining instead
that each hard case has a single right answer. Principally, Dworkin based his familiar
claim on the assertion that even if no clear (all-or-nothing) rule applies the answer
can be determined by recourse to legal principles, which instead have a dimension of
weight and to which judges are equally bound.
11
The incorrectness of his single right
answer thesis need not be set out in detail here.
12
In brief, in any hard case several
principles may be applicable and a judge may have to choose between them.
13
Moreover, principles themselves may be open textured, meaning they may equally be
indeterminate,
14
nor will the law necessarily dictate which weight must be given to
them.
15
Ultimately, Dworkin appeared to overshoot his mark in incorrectly ascribing
to legal positivism, the target of his criticism, the view that discretion means the judge
is not bound by any standards.
16
Hard cases, which have no clear answer in law, provide courts with a variable scope
of judicial discretion, depending on the level of indeterminacy of the law and the
extent to which courts may (need to) resort to principled reasoning. In EU copyright
law there are several factors which lead to an increased level of judicial discretion, in
particular for the CJEU. Notably, the EU norms which now provide a basis for
exclusive rights and the limitations and exceptions thereto often have little to no
settled meaning, nor is there often a clear legislative intention to guide the Court. This
is discussed further.
21. Lack of settled meaning. Simply put, the discretion of the CJEU to “create
law” is limited where the applicability of the rule follows from the (wording of the)
rule itself, without the need for any substantial further interpretation. This is the case
if the facts can be subsumed under the prima facie meaning of the rule.
17
In the well-
9
MacCormick 2005, p. 51.
10
Hart 2012, p. 124 et seq. & p. 252.
11
See, principally, Dworkin 1977, Ch. 2.
12
It is not generally accepted in legal theory. See, e.g., Klatt 2007, p. 512, including further
references.
13
Hart 2012, p. 275.
14
Leiter 2003, p. 21 and Raz 1972, p. 846.
15
Raz 1972, p. 846.
16
Klatt 2007, p. 510. Cf. Also Raz 1972, 843 & 847 and Hart 2012, p. 273.
17
Cf. Huysmans 2015, p. 3.
18
known words of Hart: the case falls within the “core of settled meaning”.
18
Principally,
this meaning will be provided by the wording of the rule. This is reflected in the settled
case law of the CJEU that it will follow the wording of a provision of EU law if that
wording is clear and precise.
19
Thus, in Usedsoft, the CJEU concluded that the
downloading of a copy of a computer program, accompanied by the conclusion of a
licensing agreement for an unlimited period, constitutes a sale within the meaning of
article 4(2) Software Directive because it meets the “commonly accepted definition”
of the concept of sale.
20
The “core of settled meaning” may be further informed by the
application history of the norm itself and of similar norms.
21
For instance, in Reha
Training the CJEU ultimately considered that the concept of “communication to the
public” must be given the same meaning in article 8(2) of the Rental and Lending
Rights Directive as in article 3(1) of the InfoSoc Directive.
22
However, it is precisely the lack of a “core of settled meaning” of many central
copyright concepts, now concepts of EU law,
23
which creates room for the CJEU to
shape the rights and duties of authors and users in copyright law. EU copyright norms
are almost all characterized by a large degree open texture (or at least they were at the
time of their introduction), despite the fact that almost all of these norms already have
some “settled meaning” in the Member States. The primary reason for this is the fact
that most concepts, such as “reproduction”, “communication to the public”,
“quotation” and “parody” are all intended to cover a wide variety of uses, to some of
which these concepts will be clearly applicable. Other uses will fall within the
“penumbra of debatable cases in which words are neither obviously applicable nor
obviously ruled out”.
24
Moreover, given the relative recency of the harmonization
efforts in the area of copyright law, there will be little to no application history to speak
of. The “core of settled meaning” of a concept such as “communication to the public”
is not necessarily informed by the meaning given to that concept in the Member States
prior to harmonization, even if it may have a settled meaning on the Member State
18
Hart 1958, p. 607.
19
E.g. Case C-528/08 Commission v United Kingdom ECLI:EU:C:2010:429.
20
Case C-128/11 Usedsoft ECLI:EU:C:2012:407, paras 42-48. One could very well argue that
the applicability of the concept of sale to an online transaction such as at issue in Usedsoft was
far from clear, which was, of course, precisely what the Claimant argued.
21
Cf. Huysmans 2015, p. 3.
22
Case C-117/15 Reha Training v GEMA ECLI:EU:C:2016:379, para 33. See, however, the
earlier decisions Case C-135/10 SCF v Marco Del Corso ECLI:EU:C:2012:140, para 74-76 and
Case C-162/10 Phonographic Performance (Ireland) ECLI:EU:C:2012:141, para 29, in which
the Court maintains that because art. 8(2) provides for a remuneration right as opposed to an
exclusive right it must receive “an individual interpretation”.
23
Cf., infra, Section 2.3.
24
Hart 1958, p. 607.
19
level. This creates room for the CJEU to redefine those concepts from an EU
perspective, which it has extensively done, as will be detailed in this chapter.
On a final note, one could argue that, within the context of EU harmonization, the
more the laws of the Member States converged on a specific point prior to
harmonization, the weightier must be reasons for a diverging interpretation of an EU
norm that was not specifically intended to deviate from that common understanding.
The CJEU has not given much explicit consideration to the question how a certain
concept was interpreted prior to harmonization,
25
even if it might have helped it avoid
some less fortunate interpretations.
26
Nevertheless, as the EU has grown to 28
Member States (and is about to shrink back to 27),
27
far-reaching convergence has
become less likely anyway, meaning this type of comparative legal analysis may hold
relatively little normative value.
22. Democratic legitimacy and legislative intention. Arguably, the
discretion of the CJEU must be further limited by the idea that the law should as much
as possible be created by democratically elected legislatures, which obliges the Court
to take account of the intention of the European legislature, even though courts often
also have discretion in determining that intention itself.
28
The clearer the intention of
the legislature, the weightier must be the countervailing reasons for the CJEU to
depart from this intention. However, for a variety of reasons, addressed throughout
the remainder of this chapter, the legislative intention of the EU legislature in respect
of the concepts that feature in the many copyright directives is often difficult to
pinpoint. Given the plurality of actors in the EU legislative process it is frequently all
but impossible to distil a single legislative intention. Moreover, the determination of
25
Cf. Lenaerts 2003, p. 874 et seq. who suggest that comparative legal analysis is mostly
conducted behind the scenes and that “[a]lthough the Court of Justice and the [Court of First
Instance] – anxious to present Community law as a ‘unitary’ and autonomous set of rules –
might erase in their judgments the too visible signs of a reasoning based on the comparison of
different legal rules, the comparative approach nevertheless permeates the daily activities of
the Community judge in many ways” (p. 876).
26
The prime example hereof is the introduction of the “new public” requirement in cases
concerning the retransmission of broadcasts, discussed in Section 2.4.2.3. This requirement
was, as far as I know, not used in any Member State and had in fact been explicitly rejected as
being contrary to the Berne Convention by two Member State Supreme Courts. See Dutch
Supreme Court, 30 October 1981, No. 11.739, Amstelveense Kabel I, published in RIDA 112
(1982), p.168; Dutch Supreme Court, 25 May 1984, No. 12.281, Amsterlveense Kabel II,
published in GRUR Int. 1985, p. 124; Belgian Supreme Court, 3 September 1981, Coditel v Cine
Vog Films, published in GRUR Int. 1982, p. 448. See similarly, Swiss Supreme Court, 20
January 1981, SUISA v Rediffusion SA, published in GRUR Int. 1981, p. 404 and Swiss
Supreme Court, 20 January 1981, ORF v PTT and Rediffusion SA, published in GRUR Int.
1981, p. 642.
27
While the manuscript for this dissertation was being finalized, the UK was scheduled to leave
the EU no later than 31 January 2020.
28
The same principle gives its force to the prima facie meaning of a provision from ordinary
language. Cf. MacCormick & Summers 1991, p. 539.
20
the meaning and scope of other concepts may simply not have been contemplated, or
simply intentionally left to the discretion of the courts. And finally, even given a
relatively clear (subjective) legislative intention, this intention must be construed
against the objective purpose and the legal values of the legal system of which the
norm forms part.
29
Depending on the weight attached to it, the court may conclude
that this objective purpose outweighs the subjective purpose.
23. Exercise of discretion. For the above reasons, systemic and teleological
arguments often play a relatively important role compared to textual arguments or
arguments from intention, leading to principle-led decision-making by the CJEU
which is characterized by a broad discretion. For instance, in Usedsoft the CJEU was
also faced with the question of whether exhaustion of the distribution right only
applied to copies of computer programs sold on tangible media, or also to intangible
copies. The CJEU concluded exhaustion occurs in both cases. In support of this
conclusion it noted it was apparent from the context that the legislator had not
intended to distinguish between tangible and intangible copies and that
distinguishing between the two forms of distribution would offend the principle of
equality as well as free movement of goods. The Court also held that the buyer of the
“second-hand” software could, as a “lawful acquirer”, rely on article 5(2) Software
Directive to make a reproduction thereof, because the second acquirer should be
considered a “lawful acquirer” for the purpose of that provision. Limiting the
applicability of that provision to the first acquirer would “render ineffective the
exhaustion of the distribution right”.
30
Decisions like Usedsoft take place within the discretion of the Court. It is down to the
Court to evaluate the different reasons for the possible interpretations and determine
their relative strength. In a case like Usedsoft this also entailed determining the
applicable principles, give them specific meaning and determine their (relative)
weights.
31
That the Court could have reached the opposite conclusion by emphasizing
different principles is illustrated by the Opinion of AG Bot. The AG, who like the CJEU
concluded that the distribution right was exhausted, answered the question of
whether the buyer could rely on article 5(2) in the negative, considering that “the
purpose of that provision is confined to enabling a person who already possesses a
29
Cf. Barak 2002, p. 77 et seq. and Barak 2012, p. 393-394.
30
Case C-128/11 Usedsoft ECLI:EU:C:2012:407, para 83.
31
It should be noted that, to maintain a difference between what they refer to as structural and
normative epistemic discretion (on this, see § 63-66), both Alexy and Klatt argue that some
cases are epistemically clear, implying there can be no doubt about the principles at stake and
their relative weight, meaning there is no (epistemic) discretion for courts. See Alexy 2002, p.
420-422 and Klatt 2007, p. 524-526.
21
copy … to make a reproduction”.
32
Significantly, he considered that allowing the
second acquirer to rely on article 5(2) would in effect extend the exhaustion to the
reproduction right. Although he considered this justifiable in order to protect the
effectiveness of the exhaustion rule as well as the free movement of goods and
services, he concluded that those principles were outweighed by the principle of legal
certainty.
33
The foregoing, of course, hardly means that courts may operate arbitrarily within their
area of discretion. In general, a judge’s decision will have to be rational. But rationality
may only rule out some decisions. It will not always prescribe the correct one.
34
One
could argue, that when the applicable principles have been determined, their meaning
settled, and weight assigned, there can no longer be any discretion as to the outcome,
as a certain (set of) principle(s) will outweigh the other(s). Such a view runs the risk
of having a too restrictive view of judicial discretion. Even if the outcome may at one
point be determined by the balance of arguments, this is a result of a discretionary
evaluative process.
35
This is illustrated by the evaluative process in Usedsoft, which
ultimately led the CJEU to a different outcome than its Advocate-General.
24. Discretion in copyright. Arguably, the CJEU has far-reaching discretion
in determining the scope of protection, now that central rights as well as, to an
important extent, limitations and exceptions have been the subject of
harmonization.
36
The level of harmonization itself is also subject to interpretation. In
this regard the CJEU also has discretion insofar as the directives do not (clearly)
specify this level. How the CJEU has made use of this discretion is the subject of
discussion in Section 2.3.
The CJEU is thus in a position of manifest importance, since it has been given the
opportunity – one might say duty – to reconstitute the meaning of many core concepts
of copyright. While doing so, it has great discretion due to their often ambiguous
meaning, the (initial) lack of an existing interpretative framework on which it can
build, and the often obscure intention of the legislature. As a consequence, it is now
32
Opinion of AG Bot in Case C-128/11 Usedsoft ECLI:EU:C:2012:234, para 98.
33
Ibid., para 99.
34
Cf. Hart 2012, p. 273, Klatt 2007, p. 510 and Raz 1972, p. 843.
35
Cf. Hart 2012, p. 274-275, who points out that when a judge cites a legal principle in favour
of a certain decision the “moment for judicial law-making” is not eliminated, but merely
“deferred”, since the judge will often not rely “on any already established order of priorities
prescribed for him by law”.
36
While the catalogue of limitations and exceptions in the InfoSoc Directive is optional,
Member States have, at best, limited competence to tailor their scope. See further Sections
2.4.3 and 6.5.1.
22
for a large part the Court of Justice that determines exactly which uses are subject to
right holder authorization and which uses are free.
25. CJEU vs. national courts. Finally, it should be pointed out that judicial
discretion in the EU exists on two levels. On the first level, the CJEU may have
discretion when exercising its task to interpret EU law. However, the CJEU may
devolve this power “to say what the law is”
37
upon national courts, in which case
discretion may exist on the second, national, level. It will then be up to the national
court to the determine the ultimate content of the norm applicable to the concrete
case. This discretion left to national courts by the CJEU may be greater or smaller,
generally depending on two circumstances.
First, discretion may decrease the greater the interference with a particular
(substantive) fundamental right.
38
In Promusicae the CJEU held that the applicable
EU directives did not require Member States to lay down an obligation for an internet
access provider to communicate personal data of its users to ensure the effective
protection of copyright, but added that Member States, including its national courts,
must rely on an interpretation of the directives and the measures transposing those
directives that strikes a fair balance between fundamental rights protected by the EU
legal order.
39
How to strike the balance was thus left to the discretion of national
authorities. By contrast, in Scarlet Extended and in Netlog the CJEU concluded that
a particular injunction requested by a copyright holder “would result in a serious
infringement of the freedom of the ISP concerned to conduct a business”.
40
It left no
room for discretion on the part of the national court by concluding that the requested
injunction would not respect the requirement that a fair balance be struck.
41
Second, and similarly, the formal principle of integration of the internal market may
lead the CJEU to reduce the discretion left to national courts. The greater the impact
of potential diverging national approaches may have on the functioning of the internal
market, the less discretion the CJEU may be willing to leave to national courts in their
application of EU law. In practice, this means it may give highly detailed answers to
national courts prescribing a certain outcome in certain cases, while granting more
leeway in others. For example, in cases concerning the right of communication to the
37
Cf. the famous ruling in Marbury v. Madison, 5 U.S. 137 (1803): “It is emphatically the duty
of the Judicial Department to say what the law is.”
38
Cf. Klatt 2007, p. 523-524.
39
Case C-275/06 Promusicae ECLI:EU:C:2008:54.
40
Case C-70/10 Scarlet Extended v SABAM ECLI:EU:C:2011:771, para 48 and Case C-360/10
SABAM v Netlog ECLI:EU:C:2012:85, para 46.
41
On this “double horizontal effect” of EU fundamental rights, see Colombi Ciacchi 2014, p.
122-123.
23
public the CJEU typically does the former,
42
while it left the determination whether a
particular parody strikes a fair balance to the national courts.
43
2.3 The CJEU’s (alleged) harmonization agenda
26. Judicial activism? Before discussing how the CJEU determines the
meaning of open-textured concepts and the associated scope of rights and of
limitations and exceptions, I briefly discuss the issue whether this is something that
falls within the competence of the CJEU in the first place. That is to say, one might
argue that the precise meaning of those provisions is not a matter of EU law, but is
instead left to the discretion of the individual Member States. Starting with its 2009
Infopaq ruling the CJEU has been said “to pursue an activist agenda of harmonization
by interpretation”.
44
The gist of this allegation is that the CJEU has gone out of its way
to fill in gaps left in the acquis by the legislature to promote EU integration of
copyright law, using a number of different techniques. First, the CJEU has been said
to (over)zealously label concepts found in the directives on copyright as autonomous
concepts of EU law that must be given a uniform interpretation, at times against the
wishes of the EU legislature. Second, it is suggested the CJEU rephrases questions in
order to be able to construe a more uniform EU copyright law. Third, it has been
argued that the Court’s fundamental rights reasoning may serve harmonizing
purposes. Fourth, the CJEU has stretched the boundaries of the right of
communication to the public into the unharmonized traditional territory of indirect
liability.
27. Autonomous concepts. It is the established position of the CJEU that “the
need for uniform application of EU law and the principle of equality require that the
terms of a provision of EU law which makes no express reference to the law of the
Member States for the purpose of determining its meaning and scope must normally
be given an autonomous and uniform interpretation throughout the European
Union”.
45
As the directives that deal with copyright matters typically make little to no
reference to that effect, this has transformed many key concepts of copyright law into
concepts of EU law. The CJEU has already explicitly held as much with regard to – in
42
See Section 2.4.2.3.
43
See, infra, § 106.
44
Hugenholtz 2013, p. 513. Cf. also Lionel Bently, Harmonization By Stealth: Copyright and
the ECJ (presentation given at the 2010 Fordham IP Conference), retrieved from
<http://fordhamipconference.com/wp-
content/uploads/2010/08/Bently_Harmonization.pdf> accessed on 2 July 2019.
45
See the cases cited in n 46 through 54.
24
chronological order – the concept of “equitable remuneration”,
46
“public”,
47
“reproduction in part”,
48
“fair compensation
49
”, “remuneration”,
50
“by means of its
own facilities”,
51
“sale”,
52
“parody”,
53
“work”
54
and “in connection with the reporting
of current events”
55
. Arguably, the same is true for other central concepts such as
“author”, “performer”, “private use”, “quotation”
56
et cetera. The competence of the
Member States to determine the meaning of those concepts is thus limited and
transferred to the Court itself.
57
Initially, in SENA,
58
the CJEU had held that despite
the concept of “equitable remuneration” being an autonomous concept of (at the time)
Community law, there were no “objective reasons to justify the laying down by the
Community judicature of specific methods for determining what constitutes uniform
equitable remuneration”. However, it abandoned such restraint in subsequent cases,
giving specific definitions which leave little room for appreciation by national courts.
59
The CJEU has drawn sharp criticism for its use of the autonomous concept doctrine
in its copyright judgements, in particular in Infopaq and in SGAE. In Infopaq the
Court, considering that the reproduction right is intended to apply to “works”, made
a start with defining an EU wide originality standard by holding that copyright (in so
far as governed by the general InfoSoc Directive) only attaches to works that are the
46
Art. 8(2) Rental and Lending Rights Directive. See Case C-245/00 SENA
ECLI:EU:C:2003:68, paras 23-24.
47
Art. 3 InfoSoc Directive. See Case C-306/05 SGAE v Rafael Hoteles ECLI:EU:C:2006:764,
para 31.
48
Art. 2 InfoSoc Directive. See Case C-5/08 Infopaq International ECLI:EU:C:2009:465,
paras 27 & 29. It also, more implicitly, gave an autonomous definition of the concept of work
(see paras 33-37).
49
Art. 5(2)(b) InfoSoc Directive. See Case C-467/08 Padawan ECLI:EU:C:2010:620, paras
32-33.
50
Art. 6(1) Rental and Lending Rights Directive (previously art. 5(1)). See Case C-271/10
VEWA ECLI:EU:C:2011:442, paras 25-26.
51
Art. 5(2)(d) InfoSoc Directive. See Case C-510/10 DR and TV2 Danmark
ECLI:EU:C:2012:244, paras 33-34.
52
Art. 4(2) Software Directive. See Case C-128/11 Usedsoft ECLI:EU:C:2012:407, paras 39-
40.
53
Art. 5(3)(k) InfoSoc Directive. See Case C-201/13 Deckmyn and Vrijheidsfonds
ECLI:EU:C:2014:2132, paras 14-15.
54
Art. 2-4 InfoSoc Directive. See Case C-310/17 Levola Hengelo ECLI:EU:C:2018:899, para
33. It should be noted that already in Infopaq the CJEU had started with defining the
autonomous meaning of the concept of work. See n 48.
55
Art. 5(3)(c), second case InfoSoc Directive, See Case C-516/17 Spiegel Online
ECLI:EU:C:2019:625, paras 62-67.
56
Although it did not explicitly designate the concept of quotation within the meaning of art.
5(3)(d) InfoSoc Directiev as an autonomous concept, it nevertheless appeared to have given
that concept a uniform interpretation in Case C-476/17 Pelham and Others (Metall auf Metall)
ECLI:EU:C:2019:624, paras 70-71 and Case C-516/17 Spiegel Online ECLI:EU:C:2019:625,
paras 77-79.
57
Cf. Carre 2012, p. 20 et seq.
58
Supra n 46.
59
Carre 2012, p. 22-23.
25
“author’s own intellectual creation”. It concluded this based on its reading of the
Berne convention and the fact that the same standard has been explicitly laid down
for software, photographs and databases.
60
The primary critique levelled against the
Court’s assumption that the concept of work requires a uniform interpretation is that
it goes directly against the intention of the EU legislature.
61
In other words, the Court
is accused of acting ultra vires by defining a concept which was to be left outside of
EU competence.
62
In this view, giving a uniform interpretation “facilitates the court
taking control over the bureaucracy’s EU legislation and thereby prising IP rights
from national legal tradition”.
63
A similar criticism can be heard in relation to the
Court’s judgement in SGAE, in which it designated the concept of “public” an
autonomous concept, thereby ignoring the alleged intention of the EU legislature to
leave the definition of the concept of “public” to the Member States.
64
The Court is
thus criticized for ignoring legislative intention, relying instead on other methods of
interpretation.
65
It may be that the harmonizing approach taken in Infopaq and SGAE is merely an
indication of the Court’s hesitation to rely on the hard-to-discern subjective intention
of a legislature consisting of three institutions, which moreover each individually
consist of separate actors.
66
It is therefore not completely incomprehensible that the
Court instead appears to prefer a more objective approach when it relies on recitals
and context to construe the intention and purpose underlying a particular legislative
act.
67
In this case, one could infer from the general intention to create a harmonized
framework to prevent “significant legal differences and uncertainties in protection”
the specific objective intention to harmonize also the meaning and scope of the central
concepts at issue. Moreover, it is questionable that in either Infopaq or SGAE the
Court would have been able to discern an unequivocal and explicit (subjective)
intention of the EU legislator to the effect that Member States remained free to give
to define what constitutes a “work” or “public”.
68
On the other hand, one may
60
Case C-5/08 Infopaq International ECLI:EU:C:2009:465, paras 33-37.
61
For a discussion of the criticism levelled against InfoPaq, see Van Eechoud 2012.
62
Cf. Derclaye 2014, p. 719.
63
Vousden 2010, p. 204.
64
Supra n 47. Cf. Vousden 2010, p. 204.
65
Handig 2009, p. 671 and Van Eechoud 2012, para 94.
66
Cf. Lenaerts & Gutiérrez-Fons 2013, p. 22.
67
On subjective versus objective conceptions of legislative intention see supra n 29 and
accompanying text. See also MacCormick & Summers 1991, p. 522-525.
68
As regards the concept of “work”, it is said (Derclaye 2014, p. 719, Leistner 2014, p. 563 and
Van Eechoud 2012, para 100) that this intention follows from the 1995 Green Paper
(specifically, page 27), which ultimately forms the genesis of the InfoSoc Directive, but I have
trouble identifying such an intention.
As regards the concept of “public”, the Austrian Government referred to an Explanatory Note
(10.17) to the Basic Proposal for the WCT (available at
26
legitimately wonder whether it is prudent for the CJEU to take it upon itself to define
concepts which have typically been the subject of statutory definition by the individual
Member States, such as the concept of “author” or “performer”. In those cases, the
absence of an explicit harmonizing intention should count for something.
28. Rephrasing of questions. A second tool the Court is said to use to further
harmonize copyright is the rewording of questions referred to it by national courts.
69
Exhibits A and B have generally been the BSA
70
and Painer
71
decisions. In BSA the
Court was asked whether “the phrase ‘the expression in any form of a computer
program’ [in article 1(2) of the 1991 Software Directive] also includes the graphic user
interface of the computer programme or part thereof”.
72
The CJEU understood the
national court as asking whether “the graphic user interface of a computer program is
a form of expression of that program within the meaning of Article 1(2) of [the 1991
Software Directive] and is thus protected by copyright as a computer program under
www.wipo.int/edocs/mdocs/diplconf/en/crnr_dc/crnr_dc_4.doc, accessed 6 February
2018), which notes that “[i]t is a matter for national legislation and case-law to define what is
‘public’”. Of course, an expressed intention concerning a (proposal for a) multilateral
convention like the WCT can hardly be said to constitute a clear expression of the intention of
the EU legislature, even if the EU is a party to that convention. Moreover, one can in principle
agree with the argument of AG Sharpston that “[i]n the context of the WCT, to which the
Community is a signatory, the ‘national legislation’ is the Copyright Directive (rather than the
national legislations of the various Member States) and the ‘case- law’ is that of this Court”
(Opinion of AG Sharpston in Case C-306/05 SGAE v Rafael Hoteles ECLI:EU:C:2006:479,
para 44). Finally, it has been pointed out that in a 2004 Working Paper the Commission
expressed the belief that neither the standard of originality, nor the concept of work had been
harmonized by the InfoSoc Directive (Commission Staff working paper on the review of the
EC legal framework in the field of copyright and related rights (19 July 2004, SEC(2004) 995),
p. 14-15). Of course, an ex post facto declaration in the form of a working paper by one branch
of the legislature can hardly be a convincing representation of the intention of the legislature
in adopting the prior legislative act, certainly not by itself. Again, in the words of AG Sharpston
in SGAE (para 45): “[T]he Commission's own view of the effect of Community legislation,
while it will be of interest and may have some weight, is clearly not binding on the Court.”
Surprisingly, the Austrian Government made no reference to the Explanatory Memorandum
to the Proposal for a directive on the harmonization of certain aspects of copyright and related
rights in the information society, Brussels, 10 December 1997, COM (97) 628 final, p. 25, which
notes that: “The notion of ‘communication to the public’ has been used as in the acquis
communautaire and the relevant international provisions, such of the Berne Convention and
the WCT. As in the acquis communautaire, it is a matter for the national law to define ‘public’.”
Although this does indicate that the Commission meant to leave the definition of the concept
of “public” to the Member States, the Commission’s suggestion was based on the its belief that
the existing provisions of the acquis dealing with the communication right (art. 2 SatCab
Directive and art. 5 Database Directive) equally left it up to national law to provide a definition.
The Commission’s belief in regard of course is not dispositive. In that respect the words of AG
Sharpston with regard to the 2004 Commission Staff working paper quoted above apply also
here. Either way, the Explanatory Memorandum does not reveal an unequivocal intention of
all the actors involved.
69
Derclaye 2014, p. 721 and Van Eechoud 2012, para 84 et seq.
70
Case C-393/09 BSA ECLI:EU:C:2010:816.
71
Case C-145/10 Painer ECLI:EU:C:2011:798.
72
Case C-393/09 BSA ECLI:EU:C:2010:816, para 21.
27
that directive”.
73
Having answered that question in the negative, this allowed the Court
to further develop its general conception of “work”, as introduced in Infopaq, by
pointing out that a graphical user interface “can be protected by the ordinary law of
copyright by virtue of [the InfoSoc Directive]”.
74
In Painer the Court was asked
whether the limited formative freedom of the author of a photograph, in particular of
a portrait photograph, meant that the author received little or no protection at all
against adaptations. The Court instead answered the question whether portrait
photographs can be protected by copyright at all and, if so, whether they receive
inferior protection than other works. This, again, allowed the Court to expand on the
content of the EU standard of originality. Mireille van Eechoud has suggested that this
rephrasing of questions allowed the Court “to arrive at an interpretation of directives
that creates a more ‘coherent’ system of European copyright law”.
75
The question is
whether this really reveals a harmonization agenda of the Court, or whether the
Court’s motives are more innocuous. While the Court may want to maintain some
sense of coherency in its construction of copyright law, it is more likely that its primary
goal is to provide the national court with the most helpful answer.
76
If the Court is of
the opinion that EU law must be interpreted in a manner that will impact the outcome
of the case, it does not seem particularly inappropriate that it informs the national
court of that interpretation, even if no questions have been raised to that effect by the
national court.
29. Fundamental rights. A third alleged symptom of a harmonizing agenda
with regard to copyright law is the Court’s reliance on fundamental rights arguments
when interpreting the acquis. Jonathan Griffiths, in an article from 2013, pointed to
Scarlet
77
and Luksan
78
as the prime manifestations hereof.
79
He suggests the use of
the EU Charter is mere “window-dressing” and “rhetorical”, used to bolster an
underlying harmonization agenda.
80
It must be admitted that the Court’s
fundamental rights argumentation in both cases is minimal to say the least. Neither
judgement contains a comprehensive analysis as to why the measures at issue did not
stand up to fundamental rights scrutiny. Instead, the Court directly presented its
conclusion in both cases. Nevertheless, the question is again whether those references
to fundamental rights were really rhetorical or just inadvertently minimal, for
instance based on an unpronounced analysis. Since the CJEU’s reliance on
73
Ibid., para 28.
74
Ibid., para 44.
75
Van Eechoud 2012, para 88.
76
Cf. Derclaye 2014, p. 722.
77
Case C-70/10 Scarlet Extended v SABAM ECLI:EU:C:2011:771.
78
Case C-277/10 Luksan ECLI:EU:C:2012:65.
79
Griffiths 2013a.
80
Ibid., p. 74 & 77, respectively.
28
fundamental right arguments has only increased since 2013, the question as to the
nature of the Court’s use of those arguments has become ever more pressing. The
Court’s use of fundamental rights arguments, one of the developments at the centre
of this dissertation, is more closely scrutinized in the following chapters.
81
30. Indirect liability. Finally, the CJEU has ventured into territory
traditionally covered by indirect liability, giving an interpretation to the right of
communication to the public that takes account of the knowledge of the user.
82
Conventionally, whether the user knows or not that they perform an act covered by an
exclusive right does not affect the infringement analysis. Indirect liability regimes, on
the other hand, often do take account of the knowledge of the user, offering a flexible
recourse against certain parasitic users. The lack of harmonization of indirect liability
for use of copyrighted works may have been one reason for the CJEU to expand the
scope of the communication right by incorporating a knowledge element. In doing so,
the Court was able to avoid the situation where a particular use would lead to indirect
liability in one Member State while being permitted in another. This approach can be
said to amount “to a judge-made harmonization of indirect copyright liability through
the application of the rules of primary liability”.
83
31. Agenda or bias? It is difficult to assess whether the Court really has a
harmonization agenda, or more of a harmonization “bias”, as has been suggested by
Estelle Derclaye. She rightfully points out that the copyright acquis is conceptually
vague in many places due to political compromise. The resulting uncertainties have
led to substantial delegated power for the CJEU.
84
It is true that the directives on
copyright contain a lot of norms (reproduction (in part), communication to the public,
parody etc.) that do not lend themselves to direct application, but that need further
concretization. This begs the question: who is competent to further concretize such
norms. This itself is a question of interpretation, the answer to which also falls within
81
For a description of Scarlet and Luksan, see Sections 4.3.2.3(iii) and 5.2.1.2, respectively.
82
See further, Section 2.4.2.3.
83
Angelopoulos 2017a.
84
Derclaye 2014, p. 722. Cf. Beck 2012, p. 317 who suggests that “[t]he nature of the EU treaties
as traité-cadres and the attendant high degree of legal uncertainty in the primary legal
materials due to vagueness, norm conflict and precedent effectively mean that the Member
States in effect entrusted the ECJ with finding acceptable judicial answers to many of the
questions associated with the precise degree of European integration and distribution of power
between EU and its Member States on which the treaties often remain silent or vague.” To this
can be added that the CJEU, given the chance to do so, has not consistently opted to limit the
competence of the Member States and extend the competence of the EU. See, for instance,
Case C-293/98 Egeda ECLI:EU:C:2000:66; Case C-283/10 Circul Globus București
ECLI:EU:C:2011:772; Case C-145/10 Painer ECLI:EU:C:2011:798, and to a certain extent Case
C-279/13 C More Entertainment ECLI:EU:C:2015:199; Case C-41/14 Christie’s France
ECLI:EU:C:2015:119; Case C-469/17 Funke Medien NRW (Afghanistan Papers)
ECLI:EU:C:2019:623 and Case C-516/17 Spiegel Online ECLI:EU:C:2019:625.
29
the competence of the CJEU. In that regard, the CJEU can be said to have a certain
degree of Kompetenz-Kompetenz. Lacking a clear declaration by the EU legislature as
to the competence to further define certain notions, it is not surprising that the Court
constructed the objective intention to achieve a more far-reaching, rather than a more
limited, harmonization of copyright.
85
Had the Member States (and the Parliament)
wanted to avoid such an interpretation, they could have reserved the competence to
interpret those notions in an unequivocal manner.
2.4 Interpretation of the copyright acquis
2.4.1 General observations
32. Introduction. In prior sections I discussed the important role the CJEU has
(some might say: created for itself) with regard to (re)defining the scope of protection
through the interpretation of the EU provisions containing the rights granted to the
various categories of right holders and the limitations and exceptions thereto. This
section contains a rough sketch of how the CJEU has gone about interpreting these
copyright norms. It aims to highlight how the CJEU has constructed its own
understanding of (the goals pursued by) copyright law to fill in perceived gaps in the
acquis communautaire. It illustrates the extent to which a particular kind of
purposive argument, that is to ensure an appropriate reward for the author, has
guided the court and aims to show that the Court’s reasoning is inconsistent and not
always principled. Before discussing the interpretation of exclusive rights, including
the related topic of protected subject-matter, and the interpretation of limitations and
exceptions to those rights in Section 2.4.2 and Section 2.4.3, respectively, I make a
few remarks about the general methods of interpretation used by the CJEU.
33. Particularities of the CJEU method of interpretation. Typically, the
canon of interpretation of courts consists of textual, systemic and teleological
arguments.
86
This is no different in respect of the CJEU. A study from 2012 by Gunnar
Beck on the methods of interpretation used by the CJEU confirms this conformity to
traditional legal methods. In particular, he found that the Court uses what can be
called a “cumulative approach”: the Court typically combines arguments of all three
85
Empirical research into the interpretation of copyright norms by the CJEU revealed a certain
prevalence of teleological arguments in the case law of the CJEU, which could be seen as an
indication of an “activist, upwardly harmonizing agenda” (Favale, Kretschmer & Torremans
2016, p. 69-70). However, the researchers point out that “this finding is tempered by the
presence of complex patterns of accumulation (e.g., cumulative use of several approaches
without a hierarchical order)” and that “[t]his points rather to a more complex explanation,
supported by the finding that the outcomes of the judgments do not (systematically) expand
copyright protection” (ibid., p. 69).
86
For a comparative overview see Summers & Tarufo 1991, p. 464 et seq. and MacCormick &
Summers 1991, p. 512 et seq.
30
types.
87
In the words of the (settled case law of) the Court: “in interpreting a provision
of Community law it is necessary to consider not only its wording, but also the context
in which it occurs and the objectives pursued by the rules of which it is part”.
88
Beck
argues that, as a result, the Court gives comparatively less weight to literal arguments
than other highest courts and greater weight to systemic and teleological arguments,
although the former “still [enjoy an] undeniable degree of rebuttable primacy”.
89
The
following sub-sections serve to illustrate that this general observation also appears
true with regard to copyright.
Note should also be made of a number of interpretative particularities with which the
CJEU is confronted due to the specific nature of the EU legal order. This nature brings
with it a particular set of interpretative difficulties. Three characteristic features of
interpretation by the CJEU, all of which are also to some extent be found in the Court’s
copyright case law, are addressed here.
90
First, the fact that the EU has 24 official languages produces particular interpretative
problems. Legislative enactments are to be translated and published into all of these
languages.
91
All language versions are equally authentic. Nevertheless, linguistic
differences between the different translations may arise. Although the CJEU
maintains that the wording of a provision should prevail when it is clear and precise,
92
relying on a textual interpretation is not possible when the different language versions
diverge. In those cases, systemic and teleological arguments will have to show the
way.
93
In the context of copyright, this was illustrated by the ruling in DR and TV2
Danmark. The question was whether a broadcasting organization which uses the
services of a third party can rely on the exemption provided by article 5(2)(d) of the
InfoSoc Directive only if that that third party act “on behalf of” and “under the
responsibility of” that broadcasting organization, or if those conditions are
alternative.
94
In some language versions the conditions were alternative (“or”), while
in others cumulative (“and”). The CJEU held that because each condition is
87
Beck 2012, p. 280-285. Cf. also supra n 19 and accompanying text.
88
In the copyright context, e.g., Case C-306/05 SGAE v Rafael Hoteles ECLI:EU:C:2006:764,
para 34.
89
Beck 2012, p. 317.
90
See, more extensively, Lenaerts & Gutiérrez-Fons 2013.
91
Regulation No 1 determining the languages to be used by the European Economic
Community, [1958] OJ L 17/385.
92
E.g. Case C-220/03 ECB v Germany ECLI:EU:C:2005:748, para 31.
93
Lenaerts & Gutiérrez-Fons 2013, p. 10-11.
94
See art. 5(2)(d) of the InfoSoc Directive in conjunction with recital 41 in the preamble to the
same.
31
independently capable of fulfilling the underlying purpose, the conditions should be
understood as conditional.
95
A second characteristic feature of the CJEU’s approach to interpretation is that, unlike
many national courts, the Court has not consistently made use of legislative history.
A first reason for this has been the lack of public availability of travaux préparatoires,
notably of the founding Treaties.
96
A second reason is that it may be hard to discern a
uniform legislative intention behind an act that is the result of the cooperation
between three separate entities: Commission, Council and Parliament.
97
Nonetheless,
the CJEU has started to make increased use of travaux préparatoires as they are now
often publicly available.
98
In cases concerning copyright directives the CJEU has
found support for its interpretation in preparatory documentation on several
occasions.
99
On other occasions the CJEU openly preferred a more objective approach
to the construction of the law’s purpose, either explicitly or implicitly rejecting the
interpretation proposed in the travaux.
100
The non-use of the travaux has evoked
some harsh criticism, alleging that the CJEU ignored the legislature’s intention in the
pursuit of its harmonizing “agenda”. This was discussed in the previous section.
101
Finally, mention must be made of the role of the principle of consistent interpretation.
In the first place, EU measures should be interpreted as far as possible in a manner
consistent with the international obligations of the EU. The CJEU frequently refers to
95
Case C-510/10 DR and TV2 Danmark ECLI:EU:C:2012:244, paras 51-55, the purpose of
those conditions being that third parties cannot independently benefit from the provision’s
protection.
96
Cf. Lenaerts & Gutiérrez-Fons 2013, p. 21.
97
Ibid., p. 22. Cf. also Dworkin 1986, p. 320-321.
98
Lenaerts and Gutiérrez-Fons suggest “they may well become increasingly important in the
years to come” (ibid., p. 22).
99
Case C-60/98 Butterfly Music ECLI:EU:C:1999:333, para 19; Joined Cases C-403/08 and
C-429/08 Football Association Premier League and Others ECLI:EU:C:2011:631, para 201;
Case C-283/10 Circul Globus București ECLI:EU:C:2011:772, para 35; Joined Cases C-457/11
& C-460/11 VG Wort and Others ECLI:EU:C:2013:426, para 69; Case C-406/10 SAS
ECLI:EU:C:2012:259, para 41 Case C-469/17 Funke Medien NRW (Afghanistan Papers)
ECLI:EU:C:2019:623, paras 44 & 56; Case C-476/17 Pelham and Others (Metall auf Metall)
ECLI:EU:C:2019:624, para 58 and Case C-516/17 Spiegel Online ECLI:EU:C:2019:625, paras
29 & 41.
100
See Case C-393/09 BSA ECLI:EU:C:2010:816, paras 29-38, in which the CJEU decided to
refrain from relying on the guidance provided by the Commission about what constitutes a
“computer program” within the meaning of the Software Directive (as suggested by AG Bot in
his Opinion in Case C-393/09 BSA ECLI:EU:C:2010:611, paras 47-50), instead referring to the
TRIPS Agreement and the preamble to the Directive to determine the meaning and scope of
that concept. See also Case C-174/15 Vereniging Openbare Bibliotheken
ECLI:EU:C:2016:856, paras 41-43.
101
See also, in particular, n 68.
32
the Berne Convention,
102
the TRIPS Agreement
103
and the WIPO Copyright Treaties
104
in the process of the interpretation of EU copyright law. The EU is itself a party to the
two latter treaties, which in turn require their signatories to comply with (most of )
the substantive provisions of the Berne Convention.
105
Important to note is that the
CJEU has not shied away from relying on conventions to which it is itself not bound,
but which do bind the Member States.
106
In addition to pursuing a consistent
interpretation with the international obligations of the EU or its Member States, the
CJEU also takes account of existing Member State practices when interpreting EU
Law. For instance, upon comparative analysis, it might adopt a solution that is
common to all the Member States or recognise a common principle that underlies the
various solutions in the Member States and take that principle as a basis for a
102
Case C-306/05 SGAE v Rafael Hoteles ECLI:EU:C:2006:764, para 40; Case C-5/08
Infopaq International ECLI:EU:C:2009:465, para 34; Joined Cases C-403/08 and C-429/08
Football Association Premier League and Others ECLI:EU:C:2011:631, para 192; Case C-
145/10 Painer ECLI:EU:C:2011:798, paras 127-128; Case C-510/10 DR and TV2 Danmark
ECLI:EU:C:2012:244, para 48; Case C-301/15 Soulier and Doke ECLI:EU:C:2016:878, para
50; Case C-138/16 AKM v Zürs.net ECLI:EU:C:2017:218, paras 19-30; Case C-310/17 Levola
Hengelo ECLI:EU:C:2018:899, paras 38-40 and Case C-683/17 Cofemel
ECLI:EU:C:2019:721, paras 41-42.. See also, Case C-277/10 Luksan ECLI:EU:C:2012:65,
paras 54-64 and Case C-466/12 Svensson and Others ECLI:EU:C:2014:76, paras 38-39, in
which the CJEU referred to the Berne Convention the context of delineating the competence
of Member States to make use of flexibilities offered by the Berne Convention where the EU
has decided to exercise its legislative competence.
103
Case C-200/96 Metronome Musik v Music Point Hokamp ECLI:EU:C:1998:172, para 25;
Case C-393/09 BSA ECLI:EU:C:2010:816, para 33; Case C-135/10 SCF v Marco Del Corso
ECLI:EU:C:2012:140, para 71; Case C-406/10 SAS ECLI:EU:C:2012:259, paras 33-34; Case C-
604/10 Football Dataco and Others ECLI:EU:C:2012:115, para 31 and Case C-310/17 Levola
Hengelo ECLI:EU:C:2018:899, para 39.
104
Case C-479/04 Laserdisken ECLI:EU:C:2006:549, paras 39-42; Case C-306/05 SGAE v
Rafael Hoteles ECLI:EU:C:2006:764, para 45; Case C-456/06 Peek & Cloppenburg
ECLI:EU:C:2008:232, paras 30-36; Joined Cases C-403/08 and C-429/08 Football
Association Premier League and Others ECLI:EU:C:2011:631, para 191; Case C-135/10 SCF v
Marco Del Corso ECLI:EU:C:2012:140, para 71; Case C-162/10 Phonographic Performance
(Ireland) ECLI:EU:C:2012:141, para 59; Case C-406/10 SAS ECLI:EU:C:2012:259, para 33;
Case C-604/10 Football Dataco and Others ECLI:EU:C:2012:115, para 31; Case C-5/11 Donner
ECLI:EU:C:2012:370, paras 23-24; Case C-128/11 Usedsoft ECLI:EU:C:2012:407, paras 52 &
60; Case C-419/13 Art & Allposters International v Pictoright ECLI:EU:C:2015:27, paras 38-
40; Case C-174/15 Vereniging Openbare Bibliotheken ECLI:EU:C:2016:856, paras 31-39 and
Case C-310/17 Levola Hengelo ECLI:EU:C:2018:899, para 39.
105
Art. 9(1) TRIPS Agreement requires Member States of the WTO to “comply with Articles 1
through 21 of the Berne Convention (1971) and the Appendix thereto” although “Members
shall not have rights or obligations under this Agreement in respect of the rights conferred
under Article 6bis of that Convention or of the rights derived therefrom.” Art. 1(4) WCT
requires the same without making any reservation in respect of article 6bis.
106
In Case C-135/10 SCF v Marco Del Corso ECLI:EU:C:2012:140, para 50 the CJEU also
referred to the Rome Convention as having “indirect effects within the European Union”, due
to article 1(1) WPPT, which requires the EU “not to stand in the way of the obligations of the
Member States under that Convention”. Regarding the Rome Convention, see also Case C-
641/15 Verwertungsgesellschaft Rundfunk ECLI:EU:C:2017:131, paras 21-23. In Case C-
476/17 Pelham and Others (Metall auf Metall) ECLI:EU:C:2019:624, paras 49-53 the CJEU
relies on the Geneva Convention, even though it is not part of the EU legal order either.
33
European solution.
107
This judicial dialogue can increase the effectiveness of EU law
by increasing its legitimacy.
108
There is little that points to the use of this kind of
consistent interpretation when it comes to copyright, although the CJEU’s delineation
of permissible limitations on the free movement of goods, that is of the specific
subject-matter of copyright, can be viewed as the distillation of the core objectives
pursued by national copyright laws.
109
The following two sections discuss, more specifically, the CJEU’s approach to the
interpretation of exclusive rights and of limitations and exceptions.
2.4.2 Economic rights and protected subject-matter
2.4.2.1 Protected subject-matter
34. Originality. The originality requirement acts as the gateway to copyright
protection for authors. As such it can be viewed as one element that dictates the
balance between author and public.
110
The standard of originality has been explicitly
harmonized for computer programs, databases and photographs.
111
As was discussed
in Section 2.3, starting with its Infopaq decision, the CJEU has taken it upon itself to
lay down an EU standard of originality that applies to all types of works. In that ruling
it held that copyright attaches only to subject-matter which is the author’s own
intellectual creation, the same standard that applies to computer programs, databases
and photographs. It further clarified this standard in Painer, holding that “an
intellectual creation is an author’s own if it reflects the author’s personality”
112
and
that this is the case “if the author was able to express his creative abilities in the
production of the work by making free and creative choices”.
113
The CJEU has identified a number of limitations to what can be considered the
author’s own intellectual creation. First, the mere use of significant skill and labour
107
See, for an overview, Lenaerts 2003, who points out that the larger the convergence between
the Member States, the more the CJEU will be willing to adopt the common solution (p. 885-
886)
108
Ibid., p. 880 and Lenaerts & Gutiérrez-Fons 2013, p. 37.
109
Cf. infra, Chapter 4, n 145 and accompanying text.
110
It is widely recognized as such. See, e.g., Benabou 2008, p. 234, Carre 2012, p. 392, Dreier
and Specht 2012, p. 433, Ohly, 2010, p. 511, Ohly 2018a, p. 97 and Westkamp 2007, p. 240.
Cf., however, the well-known argument by Drassinower 2009 against the standard of
originality as a balancing tool (see also Section 6.3).
111
See, respectively, art. 1(3) Software Directive, art. 3 Database Directive and art. 6 Term
Directive.
112
Case C-145/10 Painer ECLI:EU:C:2011:798, para 88, referring to recital 17 in the preamble
to the Term Directive.
113
Ibid., para 89.
34
cannot justify protection by copyright, because such use does not necessarily imply
that free and creative choices are made.
114
Moreover, in BSA the Court clarified that the originality requirement cannot be
fulfilled by elements that are dictated by technological functionality. It substantiated
this conclusion by pointing out that in such cases idea and expression merge.
115
In SAS
it clarified this (teleological) interpretation by considering that allowing the
protection of functionality, specifically of a computer program, by copyright would be
“to the detriment of technological progress and industrial development”.
116
It found
additional support for that conclusion in the explanatory memorandum to the
proposal for the Software Directive, which noted that “the main advantage of
protecting computer programs by copyright is that” only their expression will be
protected, allowing others to create similar or identical programs based on the same
ideas.
117
It tied these considerations together in its Afghanistan Papers ruling, in which it
considered that military status reports drawn up by government employees are not
protected by copyright unless they are an intellectual creation reflecting the author’s
personality. This Court noted that this will not be the case with “purely informative
documents” whose content “is essentially determined by the information which they
contain” meaning information and expression become “indissociable”. In that case,
the expression of those documents is “characterised by their technical function”.
118
Finally, in Levola Hengelo the CJEU limited the scope of the concept of work more
generally. The Court held, principally based on the principle of legal certainty, that
“the subject matter protected by copyright must be expressed in a manner which
makes it identifiable with sufficient precision and objectivity, even though that
expression is not necessarily in permanent form”.
119
It concluded that the taste of food
therefore cannot be classified as a work.
120
114
Case C-604/10 Football Dataco and Others ECLI:EU:C:2012:115, paras 37-39 & 42.
115
Case C-393/09 BSA ECLI:EU:C:2010:816, para 48-49.
116
Case C-406/10 SAS ECLI:EU:C:2012:259, para 40, referring to the Opinion of AG Bot in
the same case (ECLI:EU:C:2011:787). See, to the same effect, the Opinion of AG Bot in Case
C-393/09 BSA ECLI:EU:C:2010:611, para 76.
117
Case C-406/10 SAS ECLI:EU:C:2012:259, referring to Explanatory Memorandum to the
Proposal for Directive 91/250/EEC (COM(88) 816), para 3.7.
118
Case C-469/17 Funke Medien NRW (Afghanistan Papers) ECLI:EU:C:2019:623, paras 22-
25.
119
Case C-310/17 Levola Hengelo ECLI:EU:C:2018:899, para 40.
120
See also Case C-683/17 Cofemel ECLI:EU:C:2019:721, in which the CJEU held that a design
of a work of applied art cannot receive copyright protection based on meeting a subjective
standard that the design creates its own visual and distinctive effect from an aesthetic point of
view.
35
2.4.2.2 The reproduction right
35. Harmonization. Reproduction rights grant right holders the exclusive right
to authorize or prohibit the reproduction of their works or subject-matter protected
by related rights. The reproduction right is harmonized for all categories of works by
the InfoSoc Directive in a very broad manner: it applies to “direct or indirect,
temporary or permanent reproduction by any means and in any form, in whole or in
part”.
121
Specific harmonization of the reproduction has occurred for computer
programs and databases.
122
So far, the CJEU has only been asked to interpret the
“general” reproduction right in the InfoSoc Directive, which the Court has held
constitutes a measure of full harmonization.
123
Besides giving the Court a chance to
elaborate on the question what is the threshold of protection, as detailed in the
precious sub-section, this has allowed the Court to clarify what exactly constitutes a
(partial) reproduction.
36. Broad interpretation. Starting with Infopaq, concerning the reproduction
right granted to authors specifically, the CJEU has emphasized the purpose of
enabling the author to receive an appropriate reward.
124
Partially on this basis the
Court concluded that the reproduction right must be given a broad interpretation.
125
This principle (or: dogma) of broad interpretation has substantially guided the Court,
as will be illustrated in this and the following sections.
Based on the belief that the reproduction right must be construed broadly, the CJEU
held in Infopaq that the reproduction right covers partial reproductions if the parts
reproduced share in the originality of the work as a whole. That is, an extract from a
work constitutes a reproduction in part if that extract “contains an element of the
work which, as such, expresses the author’s own intellectual creation”.
126
Contentious
has been whether this means that the part reproduced itself needs to qualify as the
author’s own intellectual creation, that is be original.
127
The Court appears to have
clarified this in SAS. In that judgement the Court specified that the reproduction right
applies to parts of a work “provided that they contain some of the elements which are
121
Art. 2 InfoSoc Directive.
122
Art. 4(1)(a) Software Directive and art. 5(a) Database Directive, respectively.
123
Case C-469/17 Funke Medien NRW (Afghanistan Papers) ECLI:EU:C:2019:623, paras 35-
38 and Case C-476/17 Pelham and Others (Metall auf Metall) ECLI:EU:C:2019:624, paras 83-
85. It has held so explicitly only with regard to art. 2(a) and 2(c), but it stands to reason the
same is true for art. 2(b), (d) and (e).
124
Case C-5/08 Infopaq International ECLI:EU:C:2009:465, para 40.
125
The Court also referred to recital 21 in the preamble to the InfoSoc Directive and to the
broad definition of the act of reproduction in article 2 of the same (see paras 41-42).
126
Ibid., para 48.
127
Van Eechoud 2012, paras 62-66.
36
the expression of the intellectual creation of the author of the work”.
128
The Court thus
laid down a qualitative rather than a quantitative test: one should focus on what has
been copied, rather than on how much.
Similarly, in Premier League a technical understanding of the reproduction right led
to broad control for the author. The Court was asked about the applicability of the
reproduction right to temporary copies of a television broadcast in the memory of a
satellite decoder and on a television screen. Specifically, the referring court asked
whether “all of the fragments of each work as a whole, or only the limited number of
fragments which exist at any point in time” should be considered. Although the
national court was likely more interested in the standard applicable to the
reproduction of related rights,
129
the CJEU framed the question in terms of the
reproduction of authorial works. The Court applied the same standard as the one it
had formulated for partial copying in Infopaq: “the unit composed of the fragments
reproduced simultaneously – and therefore existing at a given moment – should be
examined in order to determine whether it contains [elements which are the
expression of the intellectual creation of the author of the work]”, but added that “it
is not relevant whether a work is reproduced by means of linear fragments which may
have an ephemeral existence because they are immediately effaced in the course of a
technical process”.
130
Van Eechoud has suggested that the latter addition may imply
that the Court “embraces a highly technical interpretation of copying, which basically
means that any communication that involves digital equipment triggers the
reproduction right”.
131
Such a broad interpretation necessarily relies on the
mandatory exception for transient and incidental temporary copies in article 5(5) of
the InfoSoc Directive to redress the risk of overbroad protection.
Finally, in Painer the Court once more emphasized the need for a broad interpretation
when asked whether a portrait photograph receives “weaker” copyright protection
against adaptations than other works due to its comparatively limited degree of
formative freedom. The Court answered in the negative, adding that nothing in the
acquis supports the conclusion that the extent of protection should depend on the
degree of formative freedom.
132
128
Case C-406/10 SAS ECLI:EU:C:2012:259, para 65 (emphasis added).
129
The case concerned the broadcast and reception of football matches, and particularly those
elements in the broadcast that were protected by related rights. See Van Eechoud 2012, paras
36-40.
130
Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others
ECLI:EU:C:2011:631, paras 156-157.
131
Van Eechoud 2012, para 44.
132
Case C-145/10 Painer ECLI:EU:C:2011:798, paras 95-98. It should be noted that the Court
formulated both the question and conclusion in general terms, referring to the protection
conferred by the reproduction right in general. The national court was likely interested
37
37. Inherent limitations? The foregoing illustrated that the interests of the
right holder have been emphasized strongly and their rights interpreted broadly.
Importantly, copying some of the original elements of the work is covered. This seems
to imply that any copying of any of the work’s creative elements infringes the
reproduction right, since the Court has given no indication whatsoever that the
elements reproduced should meet any test of substantiality.
133
In that case, preventing
a scope of protection that is too broad depends on the interpretation and application
of limitations and exceptions.
Nevertheless, there may be some inherent limitations to the reproduction right. In
Metall auf Metall the CJEU was asked whether the copying of a very short (two-
second) sound sample from a phonogram in order to use that sample in another
phonogram constitutes a reproduction within the meaning of article 2(c) of the
InfoSoc Directive. The CJEU commenced by adopting a similar broad understanding
of the reproduction right of phonogram producers in respect of their phonograms,
holding that it is clear from the wording of that provision that also the copying of very
short samples will constitute a reproduction “in part”. It considered that this
interpretation was inter alia borne out by the objective to protect a phonogram
producer’s investment.
134
However, it limited this broad interpretation with reference
to the fundamental rights of the user, noting that a fair balance must be struck
between these rights and the right to protection of intellectual property in article 17(2)
of the EU Charter. The Court considered that the taking of a sample in order to create
a new work constitutes a form of artistic expression, protected by both article 11 and
13 of the EU Charter. The Court concluded that right holders ought not be able to
prevent this form of “sampling” by invoking their reproduction right if the sample
taken was no longer “recognizable” in the new work. This would, according to the
CJEU “run counter to the meaning of [‘reproduction’] in everyday language” and not
specifically in the answer to the question when an adaptation constitutes a so-called “free use”,
that is to say is a new, independent work, and whether the degree of originality matters in that
respect. In order to provide a helpful answer in that regard the CJEU might have needed to
address the questions (i) whether the harmonized reproduction right also covers adaptations
and, if so, (ii) what is the dividing line between an adaptation subject to authorization and a
free creative use. One could very well argue, contrary to the general conclusion of the Court,
that it follows from the Court’s consideration that a reproduction in part occurs if the part
reproduced contains elements of the author’s own intellectual creation that the degree of
originality does influence the level of protection against adaptations, assuming those are
covered by art. 2 of the InfoSoc Directive. After all, if the degree of originality of a work is
relatively small, a reworking thereof is less likely to copy original elements, whereas if the
works includes a great number of creative choices an adaptation must keep a greater distance
from the original in order to qualify as a free use. Cf. Van Eechoud 2012, paras 52 et seq. See
also Leistner 2014, p. 566, who points that the development of an EU doctrine of free use is
inevitable.
133
Cf. Griffiths 2013b, p. 787.
134
Case C-476/17 Pelham and Others (Metall auf Metall) ECLI:EU:C:2019:624, paras 28-30.
38
strike the aforementioned fair balance. It added that a decision otherwise would
permit right holders to prevent new artistic creations even if those did not “interfere
with the opportunity which the producer has of realising satisfactory return on his or
her investment”.
135
The Court must likely be understood as meaning that the
reproduction right is neither infringed by the new work in which the sample is no
longer recognizable, nor by any reproductions which may be made along the way. If
this were not the case, the exercise of the freedom of art, which the CJEU sought to
safeguard, could be frustrated through the prevention of such intermediary copies.
A pertinent question is whether the reproduction right of authors is not infringed
either if the reproduced elements are no longer “recognizable” in the creation of a new
work. This opens the door for the construction of a European “free use” doctrine.
Several Member States permit the use of existing works if the result is a new and
independent work. For instance, § 24(1) of the German Copyright Act permits the
publication and exploitation of an “independent work created in the free use” of
another work without the authorization of the author of the latter work. In Metall auf
Metall the CJEU emphasized that Member States may not provide limitations or
exceptions to article 2 of the InfoSoc Directive other than those provided for in article
5 of the same. At first sight, this appears to limit the application of such Member State
Doctrines to cases covered by the limitations and exceptions enumerated in article 5.
Nevertheless, if the CJEU is willing to extend the “recognizability” standard to partial
reproductions of works, it may approximate these Member State doctrines.
136
For
instance, according to the German Federal Supreme Court a so-called free use exists
primarily if the original characteristics of the underlying work “fade away”, which, as
a rule, is the case if the new work does not use the old work to any relevant extent.
137
Acknowledging such inherent limitations to the reproduction right creates room for
creative re-uses, as the CJEU itself admitted in Metall auf Metall.
135
Ibid., paras 31-39.
136
This assumes that the reproduction right harmonized by art. 2 InfoSoc Directive also applies
to adaptations. See for an argument to that effect, e.g., Jongsma 2017, p. 666-670. See also,
supra, n 132.
137
E.g. German Federal Supreme Court (First Civil Senate), 11 March 1993, I ZR 263/91 –
Alcolix, para 19. In Germany, parodies are traditionally permitted also as “free use”. However,
not because the original characteristics of the work fade away, but because the parody creates
a sufficient “inner distance”. After the CJEU judgement in Case C-201/13 Deckmyn and
Vrijheidsfonds ECLI:EU:C:2014:2132 the German Federal Supreme Court has explicitly
aligned the scope of permitted parodies under the free use doctrine with that of the provision
permitting a limitation or exception for use for the purpose of parody in art. 5(3)(k) InfoSoc
Directive, as interpreted by the CJEU in Deckmyn. See German Federal Supreme Court (First
Civil Senate), 28 July 2016, I ZR 9/15 – auf fett getrimmt.
39
2.4.2.3 The right of communication to the public
38. Harmonization. The second right traditionally granted to authors and
related rights holders is the exclusive right to public performance. Public performance
rights typically encapsulate both the performance in front of a live audience and the
communication to the public by wire or wireless means. As a rule, EU harmonization
only concerns the latter. For authors, the right of communication to the public has
been fully harmonized by the InfoSoc Directive.
138
Earlier, the SatCab Directive had
already introduced a right for authors to authorize the communication to the public
by satellite.
139
In Circul Globus the CJEU confirmed that the harmonization effected
by the InfoSoc Directive does not cover the public performance in front of a live
audience.
140
The CJEU added in Svensson that Member States may not give wider
protection to authors than the harmonized level, since allowing Member States to do
so would undermine the objective pursued by that Directive by inevitably adversely
affecting the functioning of the internal market and creating legal uncertainty.
141
For right holders of related rights, the InfoSoc Directive only harmonized the right of
making available “on-demand”, not the overarching communication right.
142
Before
the adoption of the InfoSoc Directive in 2001, the communication right had been
already partially harmonized by the Rental and Lending Rights Directive, granting an
exclusive right to performers and broadcasting organizations for certain cases
143
and
a remuneration right to performers and phonogram producers for the communication
to the public of a (reproduction of a) phonogram published for commercial
purposes.
144
Unlike in respect of the right granted to authors, Member States are likely
allowed to grant holders of related rights more extensive protection. In C More
138
Art. 3(1) InfoSoc Directive. Art. 5(d) Database Directive provides a lex specialis for
databases, which technically covers all public performances of databases.
139
Art. 2 SatCab Directive. See also the recent addition in art. 17 DSM Directive, which lays
down the rule that “an online content-sharing service provider performs an act of
communication to the public or an act of making available to the public for the purposes of
this Directive when it gives the public access to copyright-protected works or other protected
subject matter uploaded by its users”.
140
Case C-283/10 Circul Globus București ECLI:EU:C:2011:772.
141
Case C-466/12 Svensson and Others ECLI:EU:C:2014:76, para 33 et seq. See also Case C-
469/17 Funke Medien NRW (Afghanistan Papers) ECLI:EU:C:2019:623, paras 35-38,
confirming that art. 3(1) InfoSoc Directive constitutes a measure of full harmonization.
142
Art. 3(2) InfoSoc Directive.
143
Art. 8 Rental and Lending Rights Directive. Art. 8(1) provides performers with an exclusive
right of communication to the public “except where the performance is itself already a
broadcast performance or is made from a fixation”. Art. 8(3) limits the right granted to
broadcasting organizations to communications to the public “made in places accessible to the
public against payment of an entrance fee”. The latter provision was interpreted in Case C-
641/15 Verwertungsgesellschaft Rundfunk ECLI:EU:C:2017:131, which will not be discussed
in the remainder of this section.
144
Art. 8(2) Rental and Lending Rights Directive.
40
Entertainment, the CJEU considered as much with regard to rights granted to
broadcasting organizations, pointing out that the InfoSoc Directive did not aim at
harmonizing the overarching communication right for related right holders and that
the Rental and Lending Rights Directive explicitly left open the possibility for Member
States to provide more far-reaching protection for related right holders.
145
39. Guiding principle. Questions concerning the interpretation of the right of
communication to the public have led to a plethora of preliminary rulings by the
CJEU, over twenty at the time of writing. The guiding principle was established in
SGAE, the Court’s first decision on the author’s right of communication to the
public.
146
Like in relation to the reproduction right, the CJEU held that the
communication right must be interpreted broadly in order to attain the purpose of
enabling the author to obtain an appropriate reward.
147
However, the CJEU has
introduced several elements of flexibility in an apparent attempt to tailor the scope of
the right in a balanced manner. This has led to an intricate web of rules and criteria
which determine whether a certain act constitutes an act of communication to the
public. These rules and criteria cannot be said to have been developed in an entirely
coherent or transparent manner.
40. Two elements. In its case law the CJEU distinguishes between two
elements, which are usually independently analysed, although they are
“complementary” and “interdependent”.
148
There must be (i) a “communication” to
(ii) a “public”. The Court’s analysis of both of these elements is characterized by
inconsistencies.
145
Case C-279/13 C More Entertainment ECLI:EU:C:2015:199, paras 31-33.
146
Not counting Case C-293/98 Egeda ECLI:EU:C:2000:66, which essentially concerned the
scope of harmonization effected by the SatCab Directive, and in which the CJEU concluded
that “the question whether the reception by a hotel establishment of satellite or terrestrial
television signals and their distribution by cable to the various rooms of that hotel is an 'act of
communication to the public' or 'reception by the public' is not governed by the [SatCab]
Directive, and must consequently be decided in accordance with national law” (para 29).
147
See Case C-306/05 SGAE v Rafael Hoteles ECLI:EU:C:2006:764, para 36. See also, Case
C-393/09 BSA ECLI:EU:C:2010:816, para 54; Joined Cases C-403/08 and C-429/08 Football
Association Premier League and Others ECLI:EU:C:2011:631, para 186; Case C-607/11 ITV
Broadcasting and Others v TVCatchup ECLI:EU:C:2013:147, para 20; Case C-466/12
Svensson and Others ECLI:EU:C:2014:76, para 17; Case C-351/12 OSA ECLI:EU:C:2014:110,
para 23; Case C-160/15 GS Media ECLI:EU:C:2016:644, para 30; Case C-527/15 Stichting
Brein v Wullems (Filmspeler) ECLI:EU:C:2017:300, para 27; Case C-610/15 Stichting Brein v
Ziggo and XS4ALL ECLI:EU:C:2017:456, para 22 and Case C-161/17 Renckhoff
ECLI:EU:C:2018:634, para 18. See the ninth recital in the preamble to the InfoSoc Directive.
See, similarly, the fifth recital in the preamble to the Rental and Lending Rights Directive. The
enumeration in this footnote excludes cases such as Case C-135/10 SCF v Marco Del Corso
ECLI:EU:C:2012:140 in which the CJEU refers to (one of) these recitals as part of the legal
context, but does not refer to it when answering the questions referred to it.
148
E.g. Case C-135/10 SCF v Marco Del Corso ECLI:EU:C:2012:140, para 79.
41
41. “Communication”. The Court does not use a single definition of what
exactly is an act of “communication”. In fact, its definition appears to change almost
on a case-to-case basis.
149
Generally, there must be an intervention which provides
access to the work. Typically, the Court has stressed that the intervention by the user
must be “indispensable”
150
, meaning that without it the public would not be able to
enjoy the work.
151
On that basis the Court concluded, for instance, that the clientele of
hotels, pubs, spa establishments and rehabilitation centres would not be able to enjoy
works broadcast over the air without those establishments providing its clientele with
television or radio sets.
152
However, the requirement that the intervention be
indispensable has been relaxed in cases concerning hyperlinking. Thus, in Svensson,
relying on the tenet that the right must be construed broadly, the Court deemed
providing a link to a work that was otherwise freely available online, i.e. without access
restrictions, a communication because it made the work “available to a public in such
a way that the persons forming that public may access it”.
153
The Court appeared to
stretch the concept of communication even further in Filmspeler and in Ziggo. In
Filmspeler the Court held that the offering for sale of a multimedia player that
contains links to websites containing unauthorized works itself is a communication,
because this offering for sale enables “a direct link to be established between websites
broadcasting counterfeit works and purchasers of the multimedia player, without
which the purchasers would find it difficult to benefit from those protected works”
and thus “offers its users direct access”.
154
In Ziggo, which concerned a platform that
indexes works shared on a peer-to-peer basis between users, allowing those users to
locate those works, the Court formulated the rule that “any act by which a user, with
full knowledge of the relevant facts, provides its client with access to protected works
is liable to constitute an ‘act of communication’”.
155
The platform’s role was considered
to be “essential”, because without it “works would not be shared by the users or, at the
149
For an overview, see Sirinelli, Benazeraf & Bensamoun 2016, p. 26.
150
Case C-135/10 SCF v Marco Del Corso ECLI:EU:C:2012:140, para 82; Case C-162/10
Phonographic Performance (Ireland) ECLI:EU:C:2012:141, para 31; Case C-117/15 Reha
Training v GEMA ECLI:EU:C:2016:379, para 46; Case C-160/15 GS Media
ECLI:EU:C:2016:644, para 35 and Case C-610/15 Stichting Brein v Ziggo and XS4ALL
ECLI:EU:C:2017:456, para 26.
151
See also Case C-306/05 SGAE v Rafael Hoteles ECLI:EU:C:2006:764, para 42; Joined
Cases C-403/08 and C-429/08 Football Association Premier League and Others
ECLI:EU:C:2011:631, paras 195, Airfield, para 79 and Case C-351/12 OSA
ECLI:EU:C:2014:110, para 32.
152
Respectively, Case C-306/05 SGAE v Rafael Hoteles ECLI:EU:C:2006:764, Joined Cases
C-403/08 and C-429/08 Football Association Premier League and Others
ECLI:EU:C:2011:631, Case C-351/12 OSA ECLI:EU:C:2014:110 and Case C-117/15 Reha
Training v GEMA ECLI:EU:C:2016:379.
153
Case C-466/12 Svensson and Others ECLI:EU:C:2014:76, paras 17-20.
154
Case C-527/15 Stichting Brein v Wullems (Filmspeler) ECLI:EU:C:2017:300, paras 41-42.
155
Case C-610/15 Stichting Brein v Ziggo and XS4ALL ECLI:EU:C:2017:456, para 34.
42
very least, sharing them on the internet would prove to be more complex”.
156
The
emphasis thus appeared to have been moved to the “essential”, one could say
facilitating, role played by the user, an arguably weaker standard than that of
indispensability.
157
The Court has also emphasized the intentional nature of the intervention. That is to
say, the user must intervene “in full knowledge of the consequences of his action, to
give access to the work”.
158
This element of subjective knowledge on the part of the
user provided the CJEU with a lifeline in GS Media, saving it from an interpretation
leading to a potential crippling of the Internet. Concerning the question whether a
user who places a hyperlink on the Internet to a work made available without
authorization, the CJEU held that the poster of such a link “does not, as a general rule,
intervene in full knowledge of the consequences of his conduct in order to give
customers access to a work illegally posted on the internet”, unless they “knew or
ought to have known” of the illegal nature of the initial communication.
159
Lack of
knowledge meant no communication was made. Ostensibly to provide a
counterbalance in the interest of the protection of authors, the Court held that such
knowledge should be presumed if the user is acting for-profit. Its reasoning is a
creative way of ensuring the functioning of an open Internet, but the focus on
subjective knowledge is not free from criticism. It can be said to distort the traditional
understanding of copyright as a property right and the protection afforded by the
InfoSoc Directive as well as Berne and the WIPO Treaties, which indeed do not
(explicitly) refer to the state of mind of the user.
160
One can even argue the “copyright
seems to have been downgraded to a mere unfair competition claim in hyperlinking
cases concerning illegal content”.
161
Unsurprisingly, therefore that the Court has –
156
Ibid., para 36-37.
157
Cf. Frosio 2017, p. 37-38 and Quintais 2018, p. 5-6. In Case C-610/15 Stichting Brein v
Ziggo and XS4ALL ECLI:EU:C:2017:456, the CJEU did emphasize, in its summary of previous
case law, the “indispensable role played by the user”, but noted that a user makes an act of
communication when “he intervenes … where, in the absence of that intervention, those
customers would not be able to enjoy the broadcast, or would be able to do so only with
difficulty” (para 26).
158
Case C-306/05 SGAE v Rafael Hoteles ECLI:EU:C:2006:764, para 42; Case C-136/09
Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon
ECLI:EU:C:2010:151, para 38; Joined Cases C-403/08 and C-429/08 Football Association
Premier League and Others ECLI:EU:C:2011:631, para 194; Case C-135/10 SCF v Marco Del
Corso ECLI:EU:C:2012:140, para 82; Case C-162/10 Phonographic Performance (Ireland)
ECLI:EU:C:2012:141, para 31; Case C-351/12 OSA ECLI:EU:C:2014:110, para 32; Case C-
117/15 Reha Training v GEMA ECLI:EU:C:2016:379, para 46, Case C-160/15 GS Media
ECLI:EU:C:2016:644, para 35, Case C-527/15 Stichting Brein v Wullems (Filmspeler)
ECLI:EU:C:2017:300, para 31, Case C-610/15 Stichting Brein v Ziggo and XS4ALL
ECLI:EU:C:2017:456, para 26.
159
Case C-160/15 GS Media ECLI:EU:C:2016:644, paras 48-49.
160
Sirinelli, Benazeraf & Bensamoun 2016, p. 27.
161
Senftleben 2016, p. 132.
43
once more – been criticized for acting ultra vires by going beyond what the InfoSoc
Directive permits.
162
Criticism did not deter the CJEU, however, from continuing to attach importance to
the subjective knowledge of the user. In Ziggo, already mentioned, the works were not
made available on the platform servers itself, but were shared by way of peer-to-peer
file sharing. The platform merely indexed the metadata of the files shared and made
them easier to find. However, the fact that the platform knew about the widespread
sharing of unlawful content on its platform may have played an essential role in the
ultimate finding that the platform itself made a communication to the public.
163
The
scope of the right was thus expanded even further in an effort to guarantee control
over, arguably, exploitative uses of its works by intermediaries.
164
42. “Public”. To be covered by the right of communication to the public the
communication must be directed at a “public”. In Mediakabel, the Court had already
held that the term public within the meaning of the Television without Frontiers
Directive
165
refers to an “indeterminate number” of people.
166
In its copyright case law,
the Court simply adopted that definition and added that the term public implies “a
fairly large number of persons”.
167
This interpretation may be intended to approach
the everyday meaning of the term public. However, in doing so the Court deviated
from the more common understanding of “public” in the copyright context, that is as
162
Cf. Smith & Newton 2016, p. 769-770 and Hanuz 2016, p. 881.
163
Cf. Case C-610/15 Stichting Brein v Ziggo and XS4ALL ECLI:EU:C:2017:456, para 45,
although the Court discussed the knowledge of the platform in this respect in the context of
the “new public” requirement, discussed below. However, this consideration as to the
awareness of the platform arguably fits in better with the consideration that the platform acted
“with full knowledge of the consequences of their conduct” (para 36). Although it is true that
the Court has often linked the new public requirement with the notion of a deliberate
intervention on the part of the user (e.g. Case C-306/05 SGAE v Rafael Hoteles
ECLI:EU:C:2006:764, para 42; Joined Cases C-403/08 and C-429/08 Football Association
Premier League and Others ECLI:EU:C:2011:631, para 198; Case C-162/10 Phonographic
Performance (Ireland) ECLI:EU:C:2012:141, para 40; Case C-607/11 ITV Broadcasting and
Others v TVCatchup ECLI:EU:C:2013:147, para 38 and Case C-117/15 Reha Training v GEMA
ECLI:EU:C:2016:379, para 46), the assessment whether that requirement is fulfilled has
typically only looked at which public had been taken into account by the author (according the
CJEU) when authorizing the original communication. The new public requirement is maligned
enough as it is without adding a further element concerning the subjective knowledge or
intention of the user.
164
As noted in Section 2.3, the CJEU may have also wanted to avoid diverging solutions to
cases such as GS Media and Ziggo under unharmonized indirect liability rules.
165
Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions
laid down by law, regulation or administrative action in Member States concerning the pursuit
of television broadcasting activities (OJ 1989 L 298, p. 23), as amended by Directive 97/36/EC
of the European Parliament and of the Council of 30 June 1997 (OJ 1997 L 202, p. 60).
166
Case C-89/04 Mediakabel ECLI:EU:C:2005:348, para 30.
167
Ibid., para 37.
44
opposed to (strictly) “private”.
168
The Court has been criticized for its “dangerously
restrictive” interpretation, which notably led it to exclude from the scope of the
communication right the broadcasting of radio programmes in a dental practice,
because the patients of that practice constitute a “determinate circle of potential
recipients”.
169
In cases concerning the retransmission of an initial broadcast, which make up a large
part of the cases concerning the right of communication to the public that are referred
to Luxembourg, the CJEU has added two requirements to help determine whether the
retransmission itself is a communication to the public. The retransmission must
either be directed at a “new public”, or use a “specific technical means”, different from
those used by the original communication.
The new public requirement was developed early on, in SGAE. Faced with the
question whether the transmission by a hotel of a broadcasting signal to hotel rooms
constitutes a communication to the public, the Court noted that such a
communication must be made to a “new public”, that is “a public different from the
public at which the original act of communication of the work is directed”.
170
It led to
Court to conclude that, for instance, both the transmission of a broadcast work by a
hotel and by a pub to their respective clientele reaches a public that was not
considered by the right holder when it authorized the initial broadcast.
171
On the other
hand, in Svensson the Court concluded that hyperlinks to works freely available
online, while an act of communication, did not reach a new public. That is so,
according to the Court, because the initial communication, that is the page to which
the hyperlink leads, is already addressed to all internet users, which must
consequently “be deemed … as being part of the public taken into account by the
copyright holders when they authorized the initial communication”. Therefore, the
link itself did not increase the size of the public addressed.
172
In GS Media, which
concerned hyperlinking to works made available without authorization, the CJEU
implied that such hyperlinks, by contrast, will reach a new public, even though strictly
speaking those hyperlinks do not increase the size of the public addressed by the
initial communication either.
173
To avoid categorical application of the
168
Cf. WIPO, Guide to the Copyright and Related Rights Treaties Administered by WIPO and
Glossary of Copyright and Related Rights Terms (WIPO 2004), p. 68.
169
Sirinelli, Benazeraf & Bensamoun 2016, p. 36, commenting on Case C-135/10 SCF v Marco
Del Corso ECLI:EU:C:2012:140, para 95.
170
Case C-306/05 SGAE v Rafael Hoteles ECLI:EU:C:2006:764, para 40.
171
See in regard to hotels ibid., paras 41-42 and in regard to pubs Joined Cases C-403/08 and
C-429/08 Football Association Premier League and Others ECLI:EU:C:2011:631, para 197-
199.
172
Case C-466/12 Svensson and Others ECLI:EU:C:2014:76, paras 25-28.
173
Case C-160/15 GS Media ECLI:EU:C:2016:644, paras 41-43.
45
communication right to such hyperlinks the CJEU introduced a knowledge based test,
as already discussed in the previous paragraph.
The new public requirement has been widely criticized. One commentator has even
gone so far as to suggest that national courts should ignore the “new public”
criterion.
174
The three major objections have been summarized by Bernt Hugenholtz
and Sam van Velze.
175
First, the requirement of a new public is arguably based on a
wrong interpretation of the Berne Convention, which makes no reference to such a
requirement. Criticism has specifically focused on the Court’s reliance on the 1978
Guide to the Berne Convention, which has been characterized as an “awareness-rising
instrument” and not an “authentic interpretation”.
176
Second, asking which public the
right holder took into account when authorizing the primary act of communication
introduces a subjective element into the delimitation of the right, creating legal
uncertainty. Third, consistently applied the “new public” criterion implies the right
holder can no longer invoke their rights against further communications on the
internet, whether by hyperlink or otherwise, once they made their work freely
available on the Internet.
177
The CJEU was offered the chance to settle this last issue
in Renckhoff. The question was whether the right of communication to the public
covers “the posting on one website of a photograph which has been previously
published without restriction and with the consent of the copyright holder on another
website”.
178
The Court concluded that such a posting does reach a new public. It
pointed out that the communication right would be robbed of its effectiveness if right
holders could no longer control the initial communication and thus deprive the right
holder of the opportunity to claim an appropriate reward for the use of their work.
179
Allowing such a posting would therefore also fail to strike a fair balance between the
“interests” of copyright holders and of users, guaranteed in particular by the right to
(intellectual) property and the right to freedom of expression and of information.
180
174
Rosén 2015.
175
Hugenholtz & Van Velze 2016, p. 808 et seq.
176
ALAI, Opinion Proposed to the Executive Committee and adopted at its meeting, 17
September 2014 on the criterion “New Public”, developed by the Court of Justice of the
European Union (CJEU), put in the context of making available and communication to the
public, retrieved from <http://www.alai.org/en/assets/files/resolutions/2014-opinion-new-
public.pdf> accessed on 25 June 2019, p. 16 and Sirinelli, Benazeraf & Bensamoun 2016, p.
34.
177
In as far as this result could only have been avoided by restricting access to the website
containing the protected work, it arguably would have led to a conflict with the Berne
prohibition on formalities. See ALAI 2014 (supra, n 176), p. 22-23.
178
Case C-161/17 Renckhoff ECLI:EU:C:2018:634, para 13.
179
Ibid., paras 28-34.
180
Ibid., para 41.
46
The CJEU discovered a further complication of the new public requirement in ITV,
leading the Court to formulate an alternative requirement to that of a new public. The
Court was asked whether the online retransmission of a free-to-air terrestrial
broadcast, being made available online only to those within the catchment area of the
original terrestrial broadcast, constituted a communication to the public. Applying
the “new public” requirement arguably would have led to an answer in the negative.
The Court, however, held that this requirement was not applicable, concluding that
the contested act constituted a communication to the public because it was made
using a different “technical means”.
181
The Court thus devised an alternative
requirement to that of a new public in order to bring the online retransmission within
the scope of the communication right.
In subsequent cases the new public requirement and the different technical means
requirement have typically been presented as alternative requirements when
determining whether there is a communication to a “public”.
182
However, in some
later cases the CJEU has presented the different technical means requirement instead
solely as a factor in determining whether there is an act of communication. In AKM v
Zürs.net and SBS Belgium this led the Court to conclude that even though the
respective communications were made using a different technical means, there
nonetheless was no communication to the public in either case because that
communication was not directed at a new public.
183
The same approach was followed
in Reha Training, but there it did not affect the outcome.
184
In VCAST and Renckhoff,
the two most recent decisions on the matter, the Court again approached the different
technical means requirement as an alternative to the new public requirement.
185
43. Search for balance. Arguably, the Court has tried to create a balanced
framework of rules, leading to what it deems a just outcome in each individual case.
186
This has resulted in a case-by-case approach, in which new rules are added when
181
Case C-607/11 ITV Broadcasting and Others v TVCatchup ECLI:EU:C:2013:147, para 39.
182
They were later also presented as alternatives in Case C-466/12 Svensson and Others
ECLI:EU:C:2014:76, para 24; Case C-348/13 BestWater International ECLI:EU:C:2014:2315,
para 14; Case C-160/15 GS Media ECLI:EU:C:2016:644, para 37; Case C-527/15 Stichting
Brein v Wullems (Filmspeler) ECLI:EU:C:2017:300, para 33 and Case C-610/15 Stichting
Brein v Ziggo and XS4ALL ECLI:EU:C:2017:456, para 28.
183
Case C-138/16 AKM v Zürs.net ECLI:EU:C:2017:218, para 26-27 and Case C-325/14 SBS
Belgium ECLI:EU:C:2015:764, paras 17-27
184
Case C-117/15 Reha Training v GEMA ECLI:EU:C:2016:379, paras 38-39.
185
Case C-265/16 VCAST v RTI ECLI:EU:C:2017:913, paras 48-50 and Case C-161/17
Renckhoff ECLI:EU:C:2018:634, para 24.
186
This conclusion is reinforced by a speech given by Judge Malenovský in January of 2016.
See Favale, Marcella, ‘The Quest for Balance in CJEU Copyright Jurisprudence, as explained
by Judge Malenovský’, retrieved from <http://www.create.ac.uk/blog/2016/01/18/the-quest-
for-balance-in-cjeu-copyright-jurisprudence-as-explained-by-judge-malenovsky/> accessed
on 13 March 2018.
47
application of the existing rules does not lead to a satisfactory outcome. This approach
has come at an obvious cost. It has led to a web of rules and criteria that is not always
easy to apply, which is illustrated by the Court’s own inconsistent application of those
rules and criteria.
187
It is also oftentimes unclear based on which (interpretative)
principles the Court constructs its individual rules. The Court appears to proceed
rather freely in elaborating new criteria in a purposive manner. The Court seems to
aim, first and foremost, at an interpretation that brings as many acts as possible
within the initial scope of the right. Accordingly, the Court often stresses the need for
a broad interpretation of the act of communication,
188
or of the right in general.
189
As
suggested, other rules and criteria are added in order to achieve what the Court
believes to be a balanced outcome, alluded to explicitly by the Court in GS Media and
Renckhoff.
190
Still, it remains difficult to discern a guiding (set of) principle(s) that explains the
Court’s case law. Perhaps one explanation can be found in an intention to extend
protection to (at least) all forms of economic exploitation, allowing the author to
obtain an appropriate reward. This could explain why the Court generally considers
that whether a user acts for profit is not irrelevant. In SGAE and FAPL, for instance,
the fact that the use made by the user of the communication was of a “profit-making
nature” reinforced the conclusion of the Court that the user made a communication
to the public.
191
By contrast, in SCF the lack of profit motives was in part the reason
for the Court to conclude that there was no communication to the public.
192
Even the
187
Cf. Rosati 2017a, p. 1233 et seq. and, supra, n 182.
188
Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others
ECLI:EU:C:2011:631, para 193 and Case C-466/12 Svensson and Others ECLI:EU:C:2014:76,
para 17.
189
Case C-306/05 SGAE v Rafael Hoteles ECLI:EU:C:2006:764, para 36; Case C-607/11 ITV
Broadcasting and Others v TVCatchup ECLI:EU:C:2013:147, para 20; Case C-325/14 SBS
Belgium ECLI:EU:C:2015:764, para 14; Case C-117/15 Reha Training v GEMA
ECLI:EU:C:2016:379, para 36; Case C-160/15 GS Media ECLI:EU:C:2016:644, para 30; Case
C-527/15 Stichting Brein v Wullems (Filmspeler) ECLI:EU:C:2017:300, para 27 and Case C-
610/15 Stichting Brein v Ziggo and XS4ALL ECLI:EU:C:2017:456, para 22.
190
Cf. also Favale, Kretschmer & Torremans 2016, p. 60.
191
Case C-306/05 SGAE v Rafael Hoteles ECLI:EU:C:2006:764, para 44 and Joined Cases C-
403/08 and C-429/08 Football Association Premier League and Others
ECLI:EU:C:2011:631, paras 204-206. See also Joined Cases C-431/09 and C-432/09 Airfield
and Canal Digitaal ECLI:EU:C:2011:648, para 80; Case C-162/10 Phonographic
Performance (Ireland) ECLI:EU:C:2012:141, paras 43-45 and Case C-527/15 Stichting Brein
v Wullems (Filmspeler) ECLI:EU:C:2017:300, para 51. In Case C-117/15 Reha Training v
GEMA ECLI:EU:C:2016:379, para 63 the CJEU suggests the profit-making motive should
instead be taken into account in order to determine the amount of remuneration due.
192
Case C-135/10 SCF v Marco Del Corso ECLI:EU:C:2012:140, paras 97-100. Taking the
(non-)profit making nature of the communication into account has been lambasted for being
“fundamentally at odds” with the governing international conventions. See ALAI 2014 (supra,
n 176), p. 11-12.
48
much-criticized new public requirement can perhaps be seen as an (ill-suited) proxy
193
for determining whether there is an independent exploitation.
194
Still, this would not
explain all decisions. At least the judgements in Bestwater, concerning framing,
195
and in SBS Belgium, concerning the transmission by a broadcaster of its signal
exclusively to signal distributors,
196
are arguably at odds with an intention to extend
the communication right to independent acts of exploitation.
In brief, while the Court appears driven by the intention to develop the law in a
balanced manner, it has not done so in an entirely consistent and dogmatically clear
manner. This has hurt the predictive capabilities of the Court’s case law as well as its
persuasive character.
2.4.2.4 The distribution right
44. Harmonization. The third exclusive right traditionally granted to authors,
viewed in some countries such as France as the natural corollary of the reproduction
right, is to distribute (copies of) works and other protected subject-matter to the
public. Like the communication right, the distribution right has been harmonized for
authors by the InfoSoc Directive.
197
Almost a decade earlier, the Rental and Lending
Rights Directive had already done so for related right holders.
198
45. Broad interpretation. Like in relation to the reproduction and
communication rights, the Court has stressed the need for an interpretation that
establishes a high level of protection that allows, inter alia, authors to obtain an
appropriate reward.
199
Notably, however, in Peek & Cloppenburg, the Court refused
to extend the scope of the distribution right to the display of copies of a work in a
store, based on an interpretation consistent with the WCT and a textual
interpretation, despite the recognized purpose of the Directive to provide right
holders with a high level of protection. The Court noted that a decision to the contrary
193
Hugenholtz & Van Velze 2016, p. 812. Cf. also Depreeuw 2014, para 654.
194
Cf. the Opinion of AG La Pergola in Case C-293/98 Egeda ECLI:EU:C:1999:403, whose
analysis led to the eventual adoption of the new public requirement by the CJEU in Case C-
306/05 SGAE v Rafael Hoteles ECLI:EU:C:2006:764, and who had proceeded from “the
principle that the author must authorise all secondary use of the broadcast work if this gives
rise to independent economic exploitation for financial profit” (para 24, emphasis in original).
195
BestWater International (supra, n 182). Cf. Leistner 2017, p. 328.
196
Case C-325/14 SBS Belgium ECLI:EU:C:2015:764. Cf. Sirinelli, Benazeraf & Bensamoun
2016, p. 33.
197
Art. 4 InfoSoc Directive. Art. 4(1)(c) Software Directive and 5(c) Database Directive
constitute a lex specialis in respect of, respectively, computer programs and databases.
198
Art. 10 Rental and Lending Rights Directive.
199
Case C-456/06 Peek & Cloppenburg ECLI:EU:C:2008:232, para 37; Case C-419/13 Art &
Allposters International v Pictoright ECLI:EU:C:2015:27, para 47 and Case C-516/13
Dimensione Direct Sales and Labianca ECLI:EU:C:2015:315, para 34.
49
would “create … new rights which have not been provided for by [the InfoSoc
Directive]”.
200
By contrast, in other decisions purposive arguments appeared to again play a major
role in determining the outcome. In Donner,
201
Blomqvist
202
and Dimensione Direct
Sales
203
the Court steadily extended the scope of the distribution right in situations of
cross-border sales. In the latter of those decisions the Court ultimately concluded that
the distribution right also covers offers for sale or targeted advertisements, even if no
sale followed. Like with respect to the existence of acts of communication, the Court
seems intent on construing the existence of an act of distribution broadly, in particular
in order to guarantee the author a reward by way of exploitation. In Dimensione the
Court admitted as much, considering that its conclusion was borne out by the
objective of the InfoSoc Directive to provide a high level of protection and to ensure
that authors receive an “appropriate reward”.
204
Similarly, in Art & Allposters the Court’s conclusion was firmly built on teleological
arguments. The Court held that exhaustion of the distribution right does not occur
when the copy of the work that has been marketed with the right holder’s consent has
undergone an alteration of its medium. Specifically, the defendant had transferred the
copyright-protected image from a lawfully distributed poster to a canvas and then sold
that canvas. The Court reasoned that if the author were unable to control the sale of
such canvases, they would be deprived of the possibility “of requiring appropriate
reward for the commercial exploitation of their works”.
205
Finally, in Usedsoft, a range of different interpretative arguments played a part in the
Court’s holding that the downloading of a computer program combined with the
conclusion of a license agreement for an unlimited period of time qualifies as a sale
that is subject to exhaustion.
206
Interestingly, the argument that exhaustion should be
restricted to copies sold on a material medium appeared to be rejected for going
further than necessary for copyright to attain its purpose, that is to allow the author
to obtain an “appropriate remuneration” for the sale of an individual copy.
207
By
200
Case C-456/06 Peek & Cloppenburg ECLI:EU:C:2008:232, para 38.
201
Case C-5/11 Donner ECLI:EU:C:2012:370.
202
Case C-98/13 Blomqvist ECLI:EU:C:2014:55.
203
Case C-516/13 Dimensione Direct Sales and Labianca ECLI:EU:C:2015:315.
204
Ibid., para 34. Cf. also Case C-5/11 Donner ECLI:EU:C:2012:370, para 36, where the CJEU
considered, in the context of art. 34 and 36 TFEU, that the acts under consideration came
within the scope of the distribution right because this was necessary to the specific subject-
matter of copyright as the “exclusive right of exploitation”.
205
Case C-419/13 Art & Allposters International v Pictoright ECLI:EU:C:2015:27, para 48.
206
Case C-128/11 Usedsoft ECLI:EU:C:2012:407. Arguments included those of a textual (e.g.
para 42: “commonly accepted definition”), systemic (cf. paras 61-63) and intention-related
nature (cf. paras 57-58).
207
Ibid., para 63.
50
contrast, in Ranks and Vasilevičs, the Court refused to extend the application of the
exhaustion doctrine to back-up copies of lawfully acquired copies, principally because
the exception that allows the making of such a back-up copy should be “interpreted
strictly”, meaning the back-up may not be used for the purpose of resale.
208
46. Limits to the scope of protection. In Metall auf Metall the CJEU was
asked about the scope of the distribution right granted to phonogram producers in
particular. Specifically, the Court was asked whether the sale of a phonogram that
contains a short sample from another phonogram constitutes an act of distribution of
the latter phonogram, that is whether the later phonogram can be considered a “copy”
of the earlier phonogram. Once more relying on the teleology of the provision, the
Court concluded it did not. It noted that the distribution right is granted to protect
against piracy, in order to permit phonogram producers to recoup their investments.
This objective is not harmed unless the whole or a substantial part of a phonogram is
reproduced. It found support for this conclusion in the Geneva Convention, to which
the EU is not a party but which is one of the conventions “on which the copyright and
related rights laws of many Member States are based”.
209
Interestingly, the CJEU also
held that, by contrast, such a phonogram does constitute a “reproduction” within the
meaning of the exclusive reproduction right, despite its own admission that the
exploitation of that phonogram does not interfere with the original producer’s ability
to recoup their investment.
210
2.4.2.5 The lending right
47. Harmonization. The fourth and final category of rights that has been the
subject of harmonization is that of rental and lending rights. It is the subject of its own
directive. The Rental and Lending Rights Directive guarantees an exclusive right to
authorize or prohibit the rental and lending to authors and related right holders. The
scope of this right has been the subject of one decision.
48. E-lending. In VOB the Court was confronted with the question whether the
lending over the internet of a digital copy of a book (e-lending) was covered by the
concept of lending and, notably, whether such use could be covered by the derogation
for public lending of article 6(1) of the Rental and Lending Rights Directive. Only the
Court’s consideration vis-à-vis the first part of that question (is e-lending covered by
the concept of lending) is discussed here.
208
Case C-166/15 Ranks and Vasilevičs ECLI:EU:C:2016:762, para 41-42.
209
Case C-476/17 Pelham and Others (Metall auf Metall) ECLI:EU:C:2019:624, paras 40-55.
210
See, supra, § 37.
51
The Court first considered that there were no good reasons to support a conclusion
that the concept of lending should be limited to physical copies and exclude digital
copies and other intangible objects. The Court pointed out that an agreed statement
annexed to the WCT that laid down a limitation to that effect only concerned the rental
right, not the lending right, and that no unequivocal intention of the legislature could
be discerned, other than the (objectively construed) intention that rental and lending
do not necessarily concern the same subject-matter.
211
Importantly, the Court then went on to stress the need for copyright to adapt “to new
economic developments such as new forms of exploitation” as well as the “general
principle requiring a for a high level of protection for authors”.
212
Interestingly, the
Court noted that this principle, which cannot be explicitly found in the (preamble to
the) Rental and Lending Rights Directive, is emphasized as being of a general nature
in the preamble to the InfoSoc Directive and must therefore be taken into account
during the interpretation of all directives that harmonize “the various aspects of
copyright while having a more limited aim than that of [the InfoSoc Directive]”.
213
For these reasons, the Court concluded that the concept of lending within the meaning
of the Rental and Lending Rights Directive should be understood as also covering e-
lending.
2.4.2.6 The sui generis database right
49. Sui generis database protection. Finally, although not included within
the scope of this study,
214
a comparison can be made with the approach to the
interpretation of the provisions concerning the sui generis protection granted to
certain databases by the 1996 Database Directive. The Database Directive provides for
the protection of databases which required a substantial investment in either the
obtaining, verification or presentation of the contents. The sui generis right is first
and foremost an investment protection mechanism.
215
The underlying purpose is
therefore different from that typically ascribed to copyright, certainly insofar as one
is concerned with authorial protection.
216
Nevertheless, it is interesting to note that
similar interpretative arguments have guided the delimitation of the scope of the sui
211
Case C-174/15 Vereniging Openbare Bibliotheken (VOB) ECLI:EU:C:2016:856, paras 31-
44.
212
Ibid., paras 45-46.
213
Ibid., paras 47-48.
214
See, supra, § 11.
215
Recitals 39-40 in the preamble to the Database Directive.
216
One could submit that a similar justification supports the grant of rights to producers of
phonograms and of first fixations of films and to broadcasting organizations. In relation to the
former, cf. Case C-476/17 Pelham and Others (Metall auf Metall) ECLI:EU:C:2019:624, paras
30 & 44.
52
generis right. For instance, in William Hill the CJEU emphasized that the concepts of
“extraction” and “re-utilisation”, broadly analogous to the concepts of reproduction
and communication to the public, respectively, must be construed broadly in order to
guarantee the maker of the database a return on investment.
217
2.4.3 Limitations and exceptions
50. (Non-)harmonization. This sub-section focuses on the (interpretation of)
the EU system of limitations and exceptions to exclusive rights. Limitations and
exceptions, hereinafter also collectively referred to as exemptions, are the
quintessential balancing elements of any copyright system. They circumscribe the
scope of the rights of authors and other right holders in the interest of individual users
and the public in general.
In the EU, exemptions are organized in a disorderly manner. The main framework is
without a doubt provided by the InfoSoc Directive, which includes a single mandatory
exemption as well as twenty optional limitations and exceptions to the rights
harmonized by that directive. Member States may not stray beyond this exhaustive
list, not even in the interest of the protection of fundamental rights, as the CJEU
emphasized in Afghanistan Papers and Spiegel Online.
218
The framework provided
by the InfoSoc Directive is essentially declared mutatis mutandis applicable by the
Rental and Lending Rights and Database Directives to (most of) the rights
harmonized therein.
219
The Software Directive provides a specific framework of
exemptions to the rights in computer programs, including some mandatory ones.
220
Three directives provide for horizontal limitations or exceptions that apply to rights
generally: the Orphan Works Directive, the Directive implementing the Marrakesh
Treaty and the recently adopted DSM Directive. Finally, the SatCab Directive and the
217
Case C-203/02 The British Horseracing Board and Others v William Hill
ECLI:EU:C:2004:695, para 46 in conjunction with para 51. See also Case C-304/07
Directmedia Publishing ECLI:EU:C:2008:552, paras 31-33; Case C- 545/07 Apis-Hristovich
ECLI:EU:C:2009:132, para 40 and Case C-202/12 Innoweb ECLI:EU:C:2013:850, paras 33-
36. Similarly, the concept of database itself must also be construed broadly. See Case C-444/02
Fixtures Marketing ECLI:EU:C:2004:697, paras 20; Case C-30/14 Ryanair
ECLI:EU:C:2015:10, para 33 and Case C-490/14 Verlag Esterbauer ECLI:EU:C:2015:735,
para 12 in conjunction with para 16.
218
Case C-469/17 Funke Medien NRW (Afghanistan Papers) ECLI:EU:C:2019:623, paras 55-
64 and Case C-516/17 Spiegel Online ECLI:EU:C:2019:625, paras 40-49.
219
See Art. 10(2) Rental and Lending Rights Directive, which does so with regard to the rights
harmonized by Chapter 2 of that Directive, containing fixation rights and rights of
communication to the public and distribution, and art. 6(2)(d) Database Directive. The Rental
and Lending Rights Directive moreover permits an exemption for public lending (art. 6(1)),
while the Database Directive includes a mandatory exception to enable lawful use (art. 6(1)).
220
Art. 5 & 6. Whether the list of exceptions is exhaustive or not is unclear. See Janssens 2014,
para 5.95.
53
Online Broadcasting and Retransmission Directive include provisions on mandatory
collective licensing.
221
The EU system of limitations and exceptions is criticized for several reasons. The
brunt of the criticism has been directed at the system as put in place by the
legislature.
222
The focus here will be, as it has been in the previous sections, on the
approach of the CJEU.
223
Much like, in particular, the approach to the right of
communication to the public, the Court has been inconsistent and incoherent in an
apparent attempt to balance the interest of the author in obtaining an (appropriate)
reward with other, countervailing, interests. This is best illustrated by the CJEU’s
wavering use of two particular interpretative arguments, the strict interpretation of
exemptions and an interpretation in accordance with the three-step test.
51. Strict interpretation. In the majority of its decisions dealing with
questions concerning the substantive scope of exemptions the CJEU stresses the need
for a strict interpretation of those provisions, being derogations from the general rule
of protection. Although the Court, consistent with its case law in other areas of law,
224
often presents the principle of strict interpretation as a systemic way of interpreting
derogations from the general rule,
225
it unquestionably has an important teleological
component. That is to say, the principle of strict interpretation can be understood as
an additional technique of guaranteeing a high level of protection to authors and other
right holders in order to enable them to obtain an appropriate reward. Accordingly,
the principle can be viewed as the corollary of the principle of broad interpretation of
economic rights. They are two sides of the same coin, so to speak: rights are
interpreted broadly, exemptions strictly.
226
In three cases the principle of strict interpretation appears to have been determinative
of the outcome. For instance, in AKM the Court held that a national provision
excluding the broadcast of protected works by a communal antenna that has no more
221
Art. 9 SatCab Directive and art. 4 Online Broadcasting and Retransmission Directive.
222
Criticism concerns in particular the closed system of limitations and exceptions, their
typical non-mandatory nature, the restrictive function of the three-step test, the lack of general
protection against technological and contractual override, and the resultant lack of a coherent
implementation into national law. See, among many others, Dreier 2010, Van Eechoud et al.
2009, p. 101 et seq., Hilty 2004, p. 765, Hugenholtz et al. 2006, p. 64 et seq., Geiger &
Schönherr 2012, p. 136 et seq., Geiger & Schönherr 2014, Griffiths 2010, para 2, Guibault 2010,
Janssens 2009, p. 326 et seq., Mazziotti 2008, in particular p. 77 et seq., and Senftleben 2010,
para 11 et seq.
223
The following analysis excludes decisions dealing with questions concerning the
compatibility of national measures with the obligation to pay a fair compensation, given that
those decisions typically do not relate to the substantive scope of exemptions.
224
See, e.g., Case C-476/01 Kapper ECLI:EU:C:2004:261, para 72 and case law cited there.
225
See, principally, the case law cited infra, n 228.
226
See, to that effect, Case C-138/16 AKM v Zürs.net ECLI:EU:C:2017:218, para 42.
54
than 500 subscribers from the scope of the right of communication to the public, was
not permitted under article 5(3)(o) of the InfoSoc Directive.
227
It considered that a
decision otherwise would be contrary to the principle of strict interpretation, since it
would allow “a multiplicity of economic operators to distribute, without having
obtained the authorisation of the authors, protected works” and thus undermine the
high level of protection pursued.
228
Similar force appeared to be attached to the
principle in Ranks and in VCast.
229
In five further cases the principle was, together
with other arguments, used in support of a decision in favour of the author.
230
By contrast, in some decisions the principle of strict interpretation is merely paid lip
service, being noted as a preliminary consideration in a decision ultimately favourable
to the user without any further reference to it.
231
In other decisions, typically all
resulting in an outcome that favours users, the CJEU made no reference to the
principle at all.
232
In some cases the CJEU has explicitly mitigated the force of the principle by
considering that the interpretation of that provision “must enable the effectiveness of
the exception thereby established to be safeguarded and permit observance of the
exception’s purpose”.
233
Thus, in Painer and in Deckmyn the Court rejected certain
restrictive conditions for the application of respectively the quotation exception and
the parody exception in order to protect their effectiveness.
234
In FAPL, VOB, Ulmer,
227
Art. 5(3)(o) InfoSoc Directive permits Member States to provide for a limitation or
exception for “use in certain other cases of minor importance where exceptions or limitations
already exist under national law, provided that they only concern analogue uses and do not
affect the free circulation of goods and services within the Community, without prejudice to
the other exceptions and limitations contained in this Article.”
228
Case C-138/16 AKM v Zürs.net ECLI:EU:C:2017:218, para 42.
229
Case C-166/15 Ranks and Vasilevičs ECLI:EU:C:2016:762, paras 42-43 and Case C-265/16
VCAST v RTI ECLI:EU:C:2017:913, paras 32 & 34.
230
Case C-36/05 Commission v Spain ECLI:EU:C:2006:672, paras 30-31; Case C-53/05
Commission v Portugal ECLI:EU:C:2006:448, para 22; Case C-5/08 Infopaq International
ECLI:EU:C:2009:465, paras 57 & 61; Case C-145/10 Painer ECLI:EU:C:2011:798, paras 109-
11 and Case C-435/12 ACI Adam and Others ECLI:EU:C:2014:254, paras 29-31 (see also Case
C-463/12 Copydan Båndkopi ECLI:EU:C:2015:144, paras 74-79, essentially repeating its
conclusion in ACI Adam).
231
Case C-302/10 Infopaq II ECLI:EU:C:2012:16, para 27; Case C-360/13 Public Relations
Consultants Association (PRCA) ECLI:EU:C:2014:1195, para 27 and Case C-469/17 Funke
Medien NRW (Afghanistan Papers) ECLI:EU:C:2019:623, para 69. See also Case C-463/12
Copydan Båndkopi ECLI:EU:C:2015:144, para 87, which asserts art. 5(2)(b) InfoSoc Directive
“should be interpreted restrictively”, not just strictly.
232
Case C-527/15 Stichting Brein v Wullems (Filmspeler) ECLI:EU:C:2017:300 is an
exception in this regard, leading to a decision favourable to authors.
233
Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others
ECLI:EU:C:2011:631, para 163. See also Case C-145/10 Painer ECLI:EU:C:2011:798, para 133;
Case C-201/13 Deckmyn and Vrijheidsfonds ECLI:EU:C:2014:2132 para 23 and Case C-174/15
Vereniging Openbare Bibliotheken (VOB) ECLI:EU:C:2016:856, para 50.
234
Case C-145/10 Painer ECLI:EU:C:2011:798, paras 132-136 (rejecting the condition that in
order for the quotation exception to apply the quoting subject-matter must itself be a work
55
Afghanistan Papers and Spiegel Online the effectiveness argument similarly played a
role in a user-friendly outcome.
235
Why does a strict interpretation make a decisive appearance in some cases, while in
other cases it plays little to no role? The Court’s reasoning in this regard may be
explained by the nature of the use under consideration. Tito Rendas has suggested
that the Court tends to rely on formalistic reasoning, including the principle of strict
interpretation, when the use is of a profit-making nature and/or causes market harm.
By contrast, the Courts has shown itself more willing to adopt a flexible argumentation
in cases in which it deems other interests, such as freedom of information and
expression and cultural promotion, to weigh strongly enough.
236
This observation is consistent with the suggestion that the principle of strict
interpretation is the corollary of the broad interpretation of economic rights and
should be understood as a tool to ensure a high level of protection, in particular to
enable the author to obtain an appropriate reward. As may be clear from the preceding
sections, the Court attaches great weight to this objective. In AKM the principle of
strict interpretation is clearly used as a tool to protect the ability of the right holder to
exploit the work. Similarly, in Ranks the CJEU considered that a strict interpretation
of article 5 of the Software Directive, which inter alia allows the lawful acquirer of a
copy of a computer program to make a back-up copy, implied the lawful acquirer
cannot use that copy in order to resell the computer program. A decision to the
contrary, as pointed out by the AG, would have “significantly complicate[d] any
measure to combat counterfeit copies”.
237
On the other hand, decisions like Ulmer and
VOB show the Court’s willingness to give precedence to other interests. In Ulmer the
Court concluded that a unilateral offer by a right holder to a library could not, by itself,
be sufficient to preclude the applicability of article 5(3)(n) of the InfoSoc Directive.
238
protected by copyright) and Case C-201/13 Deckmyn and Vrijheidsfonds
ECLI:EU:C:2014:2132, para 23 (rejecting certain restrictive conditions for the applicability of
the parody exception, proposed by the referring court).
235
Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others
ECLI:EU:C:2011:631, para 179; Case C-117/13 TU Darmstadt v Eugen Ulmer
ECLI:EU:C:2014:2196, paras 32 & 43; Case C-174/15 Vereniging Openbare Bibliotheken
(VOB) ECLI:EU:C:2016:856, para 51; Case C-469/17 Funke Medien NRW (Afghanistan
Papers) ECLI:EU:C:2019:623, paras 71-75 and Case C-516/17 Spiegel Online
ECLI:EU:C:2019:625, paras 72-73.
236
Rendas 2018, p. 173, whose empirical study on the CJEU’s approach to “technology-enabled
uses” did not concern only the interpretation of limitations and exceptions, but also the
interpretation of exclusive rights.
237
Opinion of AG Saugmandsgaard Øe in Case C-166/15 Ranks and Vasilevičs
ECLI:EU:C:2016:384, para 53.
238
Art. 5(3)(n) InfoSoc Directive permits Member States to provide for a limitation or
exception for “use by communication or making available, for the purpose of research or
private study, to individual members of the public by dedicated terminals on the premises of
56
If that were so, the objective of that provision of advancing the public interest in
promoting research and private study would not be attained.
239
Similarly, in VOB the
Court, in reaching the conclusion that the derogation for public lending in article 6(1)
Rental and Lending Rights Directive also applies to e-lending, pointed to “the
importance of the public lending of digital books” and “the contribution of [the
derogation] to cultural promotion”.
240
52. The three-step test. A similar concern with the ability of the author to
exploit their work to obtain a reward is also displayed by decisions in which the CJEU
considered the impact of the three-step test. Article 5(5) of the InfoSoc Directive
prescribes that the exemptions enumerated in article 5 of the same “shall only be
applied in certain special cases which do not conflict with a normal exploitation of the
work or other subject-matter and do not unreasonably prejudice the legitimate
interests of the rightholder”.
241
Much like the use of the principle of strict interpretation, the CJEU’s approach to the
three-step test has not been consistent. On some occasions the CJEU has held that the
three-step test is “not intended either to affect the substantive content of the [different
exceptions and limitations] or, inter alia, to extend the scope of the different
exceptions and limitations”.
242
In Infopaq II the Court even went as far as to conclude
that if the disputed reproductions fulfil all the conditions of the exemption in article
5(1) of the InfoSoc Directive “as interpreted by the case-law of the Court, it must be
held that they do not conflict with the normal exploitation of the work or unreasonably
prejudice the legitimate interests of the rightholder”.
243
On other occasions, however,
the CJEU emphasized that limitations and exceptions should be interpreted in light
establishments referred to in paragraph 2(c) of works and other subject-matter not subject to
purchase or licensing terms which are contained in their collections”.
239
Case C-117/13 TU Darmstadt v Eugen Ulmer ECLI:EU:C:2014:2196, paras 27-28 & 32.
240
Case C-174/15 Vereniging Openbare Bibliotheken (VOB) ECLI:EU:C:2016:856, para 51.
241
See also art. 6(3) Software Directive, art. 6(3) and art. 7(5) Database Directive, art. 10(3)
Rental and Lending Rights Directive and art. 3(3) Marrakkech Directive.
242
Case C-435/12 ACI Adam and Others ECLI:EU:C:2014:254, paras 25-26 and Case C-
463/12 Copydan Båndkopi ECLI:EU:C:2015:144, para 90. See also Case C-117/13 TU
Darmstadt v Eugen Ulmer ECLI:EU:C:2014:2196, para 47
243
Case C-302/10 Infopaq II ECLI:EU:C:2012:16, para 56. See also Joined Cases C-403/08
and C-429/08 Football Association Premier League and Others ECLI:EU:C:2011:631, para
181 and Case C-117/13 TU Darmstadt v Eugen Ulmer ECLI:EU:C:2014:2196, paras 33-34.
57
of the three-step test,
244
in some instances even requiring that the acts of the user
themselves comply with the three step test.
245
The lack of a consistent approach is probably best illustrated by the CJEU’s decision
in ACI Adam. In that decision the Court considers generally that the three-step test
does not affect the substantive content of limitations and exceptions but at the same
time holds that a certain use (making a private copy from an unlawful source) ought
to be categorically excluded from the scope of the private copying exception
specifically for being contrary to the three-step test.
246
The only way to make sense of
this is if one understands the three-step test, in particular that of article 5(5) InfoSoc
Directive, as principally directed at the Member States, including national courts.
247
In fact, the Court also stated as much in ACI Adam: “[The three-step test] takes effect
only at the time when [exceptions and limitations] are applied by the Member
States.”
248
In those cases in which the CJEU does itself apply the three-step test, it
should be understood as doing nothing more than providing the national court with a
specific outcome of its application. In those cases, the Court may simply want to put
the (il)legality of the use in question beyond question and guarantee a consistent
application of the three-step test throughout the EU.
249
As suggested, a concern with the author’s ability to generate an appropriate reward is
dominant in those decisions in which the CJEU made actual use of the three-step test.
In ACI Adam the Court concluded that allowing private copies to be made from
unlawful sources would reduce the volume of lawful transactions and therefore
conflict with the normal exploitation.
250
In Filmspeler the Court reached a similar
conclusion with regard to temporary copies made in the memory of a multimedia
244
Case C-5/08 Infopaq International ECLI:EU:C:2009:465, para 58; Case C-351/12 OSA
ECLI:EU:C:2014:110, para 40; Case C-117/13 TU Darmstadt v Eugen Ulmer
ECLI:EU:C:2014:2196, para 47 and Case C-527/15 Stichting Brein v Wullems (Filmspeler)
ECLI:EU:C:2017:300, para 63.
245
Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others
ECLI:EU:C:2011:631, para 181; Case C-360/13 Public Relations Consultants Association
(PRCA) ECLI:EU:C:2014:1195, para 53; Case C-117/13 TU Darmstadt v Eugen Ulmer
ECLI:EU:C:2014:2196, para 56.
246
Case C-435/12 ACI Adam and Others ECLI:EU:C:2014:254, paras 25-26 versus paras 38-
40.
247
Cf. Arnold & Rosati 2015, p. 1199.
248
Case C-435/12 ACI Adam and Others ECLI:EU:C:2014:254, para 25.
249
Cf. also Case C-463/12 Copydan Båndkopi ECLI:EU:C:2015:144, para 90, in which the
Court also emphasized that the three-step test “is not intended … to affect the substantive
content of [the provision at issue]”, but in which the Court did not apply the test as it did in
ACI Adam. In such cases the CJEU merely leaves the assessment of the compatibility of the
contested use with the three-step test to the national court.
250
Case C-435/12 ACI Adam and Others ECLI:EU:C:2014:254, para 39. In para 40 the Court
added that allowing such use would “unreasonably prejudice copyright holders”.
58
player of works made available online without authorization.
251
By contrast, in PRCA
the Court concluded that making temporary reproductions on-screen and in a
computer’s memory of works made available online with authorization does not
violate the three-step test. The Court considered that the “legitimate interests of the
copyright holders concerned are … properly safeguarded” because they have control
over the communication online by virtue of the communication right and that
“viewing of [authorized; DJ] websites … represents a normal exploitation of the
work”.
252
The differentiating factor is thus whether the right holder is given the chance
to exploit the work and obtain a reward. This reasoning of the Court is not beyond
dispute. After all, in situations such as those at issue in ACI Adam and Filmspeler the
right holder is not deprived of their right to authorize or prohibit the making available
of the work. It is just that in such cases they have not done so. Moreover, the Court’s
conclusion is based on the factual assumption that such use actually has adverse
impact on the “normal exploitation” and that such exploitation exists to begin with.
253
Perhaps ACI Adam and Filmspeler can be traced back to the Court’s intuitive beliefs
about the fairness of the use in question (“downloading or streaming from unlawful
sources is wrong”), in an attempt to guide demand towards authorized offers and thus
protect the ability of the author to exploit the work.
254
53. More inconsistencies. Even if at first glance it appears that the (non-)
reliance by the CJEU on the principle of strict interpretation and the use of the three-
step test can be explained by reference to the nature of the use, it still remains largely
unclear why in some cases the interests of the author prevail (e.g. leading to a strict
interpretation) while in others other interests prevail (leading to a more flexible
interpretation).
For instance, in Filmspeler the CJEU considered whether temporary copies made on
a multimedia player in order to watch works such as movies that are made available
on the internet without consent constituted a “lawful use” within the meaning of
article 5(1) of the InfoSoc Directive, in particular given the fact that the users of those
multimedia players knew full-well of the lack of consent. The Court concluded that
251
Case C-527/15 Stichting Brein v Wullems (Filmspeler) ECLI:EU:C:2017:300, para 70.
252
Case C-360/13 Public Relations Consultants Association (PRCA) ECLI:EU:C:2014:1195,
paras 56-61. See also Joined Cases C-403/08 and C-429/08 Football Association Premier
League and Others ECLI:EU:C:2011:631, para 181.
253
Cf. Linders & Alberdingk Thijm 2015, p. 16, who point out that the existence of normal
exploitation is principally a factual question to be answered by the national court and point at
empirical evidence that “illegal downloads” may not have adverse effects on legal transactions.
See, similarly, Quintais 2015, p. 88.
254
Even if the result of, in particular, ACI Adam is that an exception subject to payment of fair
compensation is replaced by a potentially unenforceable exclusive right. Cf. Quintais 2015, p.
88.
59
such use was not “lawful”, invoking the three-step test. However, had the Court
instead relied on the argument that the effectiveness of the exception must be
safeguarded and its purpose observed, in this case to enable passive uses not
traditionally covered by copyright, the decision might just as well have gone the other
way.
By contrast, in Ulmer a strict interpretation might have led to a more author friendly
ruling. It held, first, that an offer by a right holder to enter into a licensing agreement
does not make a work “subject to purchase or licensing terms” within the meaning of
article 5(3)(n) of the InfoSoc Directive,
255
in part because that would negate the
effectiveness of the exemption.
256
Second, the Court held that the same exemption
would risk “being rendered largely meaningless, or indeed ineffective” if Member
States were not permitted to introduce an ancillary right, based on article 5(2)(c) of
the InfoSoc Directive,
257
for publicly accessible libraries to digitise their collections.
258
Following a strict interpretation the Court could just as well have concluded that a
reasonable offer to enter into a licensing agreement does preclude the application of
the exception, as well as that there is no such ancillary right.
259
One can also juxtapose
the use of the three-step test by the CJEU in Ulmer with its use in Filmspeler.
Apparently allowing libraries to digitise their collections does not conflict with the
normal exploitation of digital copies of works, even if it arguably may lead to a
“diminution of lawful transactions relating to the protected works”, which was the
decisive argument for the Court’s finding in Filmspeler that the making of temporary
copies in the circumstances at issue did conflict with the normal exploitation.
260
54. Hidden balancing. Arguably, what the CJEU actually does in cases such as
Filmspeler and Ulmer, is striking a balance between competing interests. In fact, in
Ulmer the Court admitted as much, noting that an interpretation of article 5(3)(n)
that would permit the right holder to effectively rule out the applicability of that
exemption by making a unilateral offer would be “difficult to reconcile with the aim …
255
Art. 5(3)(n) permits Member States to introduce a limitation or exception for “use by
communication or making available, for the purpose of research or private study, to individual
members of the public by dedicated terminals on the premises of establishments referred to
in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms
which are contained in their collections”.
256
Case C-117/13 TU Darmstadt v Eugen Ulmer ECLI:EU:C:2014:2196, para 32.
257
Art. 5(3)(c) permits Member States to introduce a limitation or exception “in respect of
specific acts of reproduction made by publicly accessible libraries, educational establishments
or museums, or by archives, which are not for direct or indirect economic or commercial
advantage”.
258
Case C-117/13 TU Darmstadt v Eugen Ulmer ECLI:EU:C:2014:2196, para 43.
259
Cf. the analysis of the referring court: German Federal Supreme Court (First Civil Senate),
20 September 2012. I ZR 69/11 – Elektronische Leseplätze, paras 17-18. See also the literature
cited ibid., paras 13 & 15.
260
Case C-527/15 Stichting Brein v Wullems (Filmspeler) ECLI:EU:C:2017:300, para 70.
60
to maintain a fair balance between the rights and interests of rightholders [and
users]”.
261
Similarly, the CJEU had already held in in FAPL and in PRCA that the
mandatory exception for temporary copying in article 5(1) of the InfoSoc Directive,
which was at the centre of Filmspeler, is intended to safeguard a fair balance.
262
The suggestion that whether exemptions are interpreted strictly or liberally depends
on an underlying balancing exercise between the interest of right holders to obtain a
reward through the exploitation of their creations and the (fundamental) rights of
users finds further support in the judgements in Afghanistan Papers and Spiegel
Online, both from 29 July 2019. Using the same wording in both cases, the CJEU set
out more generally the limits of the principle that “any derogation from a general rule
must, in principle, be interpreted strictly”. The Court considered that the limitations
and exceptions enumerated in article 5 of the InfoSoc Directive confer rights on users,
that they are intended to ensure a fair balance between the rights and interests of right
holders and of users, and that their interpretation must allow their effectiveness to be
safeguarded and their purpose to be observed. Consequently, “in striking the balance
which is incumbent on a national court … [it] must, having regard to all the
circumstances of the case before it, rely on an interpretation of those provisions
which, whilst consistent with their wording and safeguarding their effectiveness, fully
adheres to the fundamental rights enshrined in the Charter”.
263
Arguably, the same
must be true for the CJEU when it itself determines the scope of limitations and
exceptions. However, in most of the cases discussed in this section one is hard-pressed
to find any explicit or even implicit but actual balancing of competing interests.
Instead of making this balancing explicit, the Court typically presents us only with the
outcome of an – at best – implicit balancing exercise. It does not explain why in some
cases a certain other right or interests perseveres over the right of the author, just that
it perseveres, nor why in other cases user interests are incapable of outweighing those
of the author. The argument that a certain interpretation does not sit well with the
required strict interpretation or effectiveness of the exemption can be understood as
the result of the preceding balancing exercise. The lack of a consistent approach does
little for the predictability of the Court’s case law and gives the impression that the
Court acts in an unprincipled manner. This raises the question whether, in certain
cases, the CJEU should perhaps turn to more explicit balancing.
261
Case C-117/13 TU Darmstadt v Eugen Ulmer ECLI:EU:C:2014:2196, para 31.
262
Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others
ECLI:EU:C:2011:631, para 181 and Case C-360/13 Public Relations Consultants Association
(PRCA) ECLI:EU:C:2014:1195, paras 56-61.
263
Case C-469/17 Funke Medien NRW (Afghanistan Papers) ECLI:EU:C:2019:623, paras 65-
76 and Case C-516/17 Spiegel Online ECLI:EU:C:2019:625, paras 50-59.
61
2.5 The creation of EU copyright: striking a balance?
55. Striking a balance. The CJEU has the (arguably to some extent self-
imposed) task to (re)define the meaning of the many of copyright’s central concepts
that now find a basis in EU law. As a result, the CJEU performs an essential function
in determining the scope of protection offered by copyright in the EU. In doing so, the
CJEU has not always been consistent. It has identified criteria and principles, such as
“new public” and “strict interpretation”, to help determine the scope of rights and of
exemptions, only to attenuate their impact by identifying conflicting criteria or by
introducing new principles, such as “different technical means” and “effectiveness”.
This sometimes gives the impression the Court knows the result it wants to obtain
even before it identifies those criteria and principles.
In general, the Courts seems to be guided by the objective to guarantee authors an
appropriate reward. This objective appears to have informed the Court’s position that
rights should be construed broadly and exemptions strictly. Insofar as the Court
resorts to a broad interpretation of rights and a strict interpretation of limitations and
exceptions as a matter of principle, it is suggested that such an interpretation is of
little use. As illustrated by the inconsistent manner in which these “principles” are
used, they are unsuitable to function as point of departure for the determination of
the appropriate scope of those rights and limitations and exceptions. It reflects a one-
sided conception of copyright law in which more protection is better, which is
similarly true for the idea that rewarding authors necessitates a “high level of
protection”. Both are largely unhelpful ideas in determining the scope of copyright,
perhaps reflective of an approach to copyright which views it as an end in itself.
264
At the same time, it seems incorrect to conclude that the frequent emphasis by the
CJEU on a broad/strict interpretation means that the CJEU structurally favours the
interests of authors. As has been illustrated in the preceding analysis, the CJEU has
on numerous occasions refused to extend the scope of rights or, conversely, limit the
scope of limitations and exceptions. In fact, quantitative analysis of the copyright case
law of the CJEU weighs against such a conclusion. Favale et al., in their analysis of
case law up until Svensson decision of 2014, concluded that “the high protection of
the copyright owner, or the narrow construction of copyright limits, do not guide the
copyright jurisprudence of the Court as one might have expected”.
265
They also
suggest that “[t]he Court in fact seems to strive to balance the … principle [of a high
264
On the dangers hereof, cf. Peukert 2011, p. 71.
265
Favale, Kretschmer & Torremans 2016, p. 58.
62
protection of copyright holders] with other considerations”.
266
A similar conclusion
was reached by Rendas, whose study was discussed in the previous section.
The Court’s approach is better explained if one assumes that the CJEU uses the
objective of rewarding the author as a point of departure, balancing it against other
considerations. If this is accepted, the (non-)application of the principles of
broad/strict interpretation can be understood merely as the outcome of this balancing
process. The CJEU has alluded to such a balancing approach in a number of decisions.
On several occasions the Court has pointed out that the provision under consideration
is intended to safeguard a fair balance between the rights and interests of right holders
and those of users.
267
In GS Media, Afghanistan Papers, Metall auf Metall and
Spiegel Online The Court held the same with regard to the InfoSoc Directive as a
whole.
268
On a number of occasions the CJEU has even gone as far as to explicitly
consider that a particular interpretation would not strike a fair balance between the
rights and interests of author and users. Some of these decisions, notably Metall auf
Metall, Renckhoff and Ulmer have already been discussed in the preceding
sections.
269
These and other decisions are more elaborately discussed and evaluated
in Chapter 4, specifically in Sections 4.3.2.3 and 4.4.
For now, I merely point out that, as was noted already in paragraph 54, the CJEU
typically provides little insight into why its decision is in the interest of (a fair) balance.
No consistent approach as to why a certain interest prevails can be discerned.
Moreover, the Court’s analysis is oftentimes one-sided, focusing only on those
arguments that support its decision. This assertion is corroborated by recent critical
discourse analysis of a selection of three seminal CJEU copyright decisions. Kalimo et
al. found that the CJEU’s analysis in those cases lacked discursive elements, its own
voice being dominant and other voices typically only used to reinforce its own
views.
270
Emblematic in this sense are those cases in which the CJEU refers to the fair
balance of rights and interests, but subsequently fails to address why this fair balance
favours a certain decision. This may even raise the question of whether such a
reference is more a means to bolster the Court’s conclusion than truly reflective of a
266
Ibid., p. 67.
267
Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others
ECLI:EU:C:2011:631, para 164 and Case C-360/13 Public Relations Consultants Association
(PRCA) ECLI:EU:C:2014:1195, para 24, with regard to art. 5(1) InfoSoc Directive and Case C-
145/10 Painer ECLI:EU:C:2011:798, para 132 with regard to art. 5(3)(d) of the same. Cf. also
Case C-201/13 Deckmyn and Vrijheidsfonds ECLI:EU:C:2014:2132, discussed in § 106.
268
Case C-160/15 GS Media ECLI:EU:C:2016:644, para 31; Case C-469/17 Funke Medien
NRW (Afghanistan Papers) ECLI:EU:C:2019:623, para 57; Case C-476/17 Pelham and Others
(Metall auf Metall) ECLI:EU:C:2019:624, para 32 and Case C-516/17 Spiegel Online
ECLI:EU:C:2019:625, para 36.
269
See supra, paras 37, 42 and 54, respectively.
270
Kalimo, Meyer & Mylly 2018, p. 286 & 305.
63
search for balance.
271
This does drive home one of the central questions of this study:
what in this regard is the utility of the concept of fair balance? The next part of this
study will explore the “conventional” meaning of the concept of (fair) balance, as
developed outside the area of copyright law and compare this to its use in copyright.
271
Cf., however, Favale et al. 2016, p. 66, who appear to suggest that whether the CJEU refers
to competing arguments may depend on the expertise of the Judge Rapporteur. They point out
that Judge Malenovský, the Rapporteur in the majority of cases, was the only judge who
referred to the fair balance in cases decided favourably to right holders. See also Kalimo et al.
2018, p. 307, who cite the study by Favale et al. However, a closer look at those cases casts
doubt on this conclusion. In their codebook Favale et al. coded two decisions as “favourable to
right holder” in which Malenovský was Rapporteur and in which the CJEU referred to a fair
balance of rights and interests. In the first of those decisions, Case C-462/09 Stichting de
Thuiskopie ECLI:EU:C:2011:397, the Court referred to the “fair balance” in the context of its
decision that it is in principle the user who makes a private copy, and therefore causes harm
to the right holder, who is liable to pay fair compensation, but that Member States may
establish a private copying levy chargeable to producers of reproduction equipment, and
similar devices. As set forth in Section 4.3.2.3(i), the determination of whether a levy may be
imposed to ensure fair compensation is not really an issue of balance between right holders
and users. The same applies to other decisions concerning the obligation to pay fair
remuneration in which the CJEU refers to a “fair balance” and which were decided after Favale
et al. had conducted their study. In the second decision coded as favourable to the right holder
in which the CJEU made reference to the fair balance of rights and interests, Case C-145/10
Painer ECLI:EU:C:2011:798, the particular reference was actually made in the context of one
of several questions referred, which particular question was actually decided non-favourably
to the author (see paras 129-137).
64
PART II – BALANCING AND PROPORTIONALITY
ANALYSIS IN AND BEYOND COPYRIGHT
The previous part concluded with the observation that the CJEU often strives to
achieve a fair balance between competing rights and interests when interpreting the
scope of exclusive rights and of the limitations and exceptions thereto, but that it does
not proceed by applying a consistent set of principles in a methodical manner. This
part explores the contours of the concept of “fair balance”, principally as it has
featured in the case law of the CJEU and the ECtHR, as well as the general desirability
of balancing in EU copyright. It commences, in Chapter 3, with a legal theoretical
perspective on balancing, including the broader concept of proportionality, as a
method to determine the priority between conflicting principles. This illuminates how
balancing can serve rational, coherent and consistent decision-making, both as a tool
to review legislation and as a way for courts to give content to a judge-made rule. This
overview provides a framework for the analysis of the approach of the CJEU and the
ECtHR in Chapter 4.
65
3 BALANCING AND PROPORTIONALITY ANALYSIS: A
THEORETICAL PERSPECTIVE
3.1 Introduction
56. Introduction. As alluded to in the general introduction, the issue of balance
is central to copyright. The fact that the CJEU has, on numerous occasions, made an
explicit reference to the concept of fair balance in delineating the scope of protection
of authors and other right holders is therefore not necessarily surprising. Similarly,
the suggestion made in the previous chapter that also other decisions, in which the
Court does not make an explicit reference to a “fair balance”, evince the Court’s desire
to bring into balance the rights and interests of authors and those of users should not
be surprising either. The question of balance is also brought up beyond the
interpretation of norms of copyright, when it is asked whether fundamental rights of
others can act as an (external) counter-balance to (overbroad) copyright protection.
1
The question is what “(fair) balance” means in these contexts. Judicial balancing
occurs at various stages in the judicial process. For instance, balancing may occur at
a factual level when judges consider whether they are, on balance, convinced a certain
state of affairs indeed occurred. By contrast, balancing concerning the validity or the
scope of a particular provision or its applicability in a particular case is balancing at
the normative level between different arguments, such as goals or rights. Such
arguments can be referred to as principles insofar as they are typically viewed as being
only valid in principle.
2
It is this type of balancing that occurs when courts seek to
ascertain whether a particular norm “strikes a fair balance” between various rights
and interests at stake or whether that norm should be disapplied for violating a
particular fundamental right.
3.2 A brief legal theoretical view of balancing and proportionality
analysis
3.2.1 Elements of balancing and proportionality
57. Optimization and review. Balancing different principles against each
other concerns the question about the priority between those principles given a
particular set of circumstances, essentially seeking an optimal or proportional
relationship between the benefits to the one principle and the costs to the other.
Balancing can occur at different levels of decision-making. It occurs when striking a
balance at the time of creation of a norm, either by the legislature or a court. In those
1
This question will be substantively addressed in Chapter 7.
2
Cf. Sieckmann 2012, p. 88.
66
cases, the primary decision-maker will typically seek what it deems to be the optimal
trade-off between the different principles, such as individual rights and collective
interests or goals, that are at stake. This can be called optimization balancing.
Balancing can also play a role when reviewing the balance struck by someone else, for
instance a court reviewing the constitutionality of a legislative act. In contrast to
optimization balancing, this review balancing typically does not necessarily aim to
ascertain whether the balance struck is optimal, but instead looks whether there is a
justifiable proportional relationship between the costs and benefits of the measure
being reviewed.
58. Balancing and proportionality. The principles that are balanced are
often characterized as norms, goals, values or ideals, whose realization may or must
be pursued to the greatest extent possible.
3
The former (“may”) is generally true of
public interests, which the legislature can typically choose to pursue or optimize. The
latter (“must”) seems certainly true of individual fundamental rights if one views them
as the positivization of human rights ideals.
4
This character of such legal principles
implies that certain criteria or requirements must be observed when striking a balance
between them. These requirements can often be found as part of the tripartite
proportionality test that has its historical origins in Germany and that is now applied
by many courts around the globe.
5
Proportionality is often associated with three separate “tests”, in particular in the
context of review of a measure adopted by a primary decision-maker: the contested
measure should be suitable, necessary and proportionate in the narrow sense.
6
59. Suitability. The requirement of suitability means that the measure must be
capable of achieving the aims pursued by the legislator or other public authority that
adopted the measure. It is a factual test that looks for a rational connection between
means and end. Irrelevant at this stage is whether the measure is efficient at achieving
its purpose or whether there are more suitable measures available.
7
60. Necessity. The necessity requirement demands that there are no alternative
means that both realize the purpose of the contested measure to the same extent and
3
Cf. Alexy 2002, p. 67-69, Barak 2012, p. 40-41, Rivers 2007a, p. 168 and Sieckmann 2012, p.
90 et seq. This “Alexian” view of legal principles is not without its critics. See, e.g., Alexander
2012, Brożek 2012 and Poscher 2012,
4
See, infra, para 76.
5
See, e.g., Barak 2012, p. 181 et seq. and Stone Sweet & Mathews 2008.
6
Sometimes a fourth test is included in the definition of proportionality, that is that whether
the measure under consideration pursues a proper purpose. This is a mere issue of definition;
in the three-pronged conception of proportionality the presence of a proper purpose is
presupposed.
7
See Barak 2012, p. 305, Pieroth & Schlink 2001, para 283.
67
limit the opposing principle to a lesser extent. The necessity test, as is the suitability
test, is thus reflective of the idea of Pareto-efficiency.
8
Like the suitability test, the
necessity test is a factual one.
9
The only thing that matters at this stage is whether the
hypothetical means limit the constitutional right to a lesser extent, all other things
being equal. Irrelevant is the existence of less limiting hypothetical alternative means
if those means are less effective than the contested measure, or if there is a significant
difference in the probability that the alternative means will advance the purpose of
that measure.
10
Thus, the necessity test does in principle not prohibit the legislature
to pursue a policy of maximalist protection of authors in order to ensure them a
reward that is as great as possible, making all uses traditionally covered by limitations
and exceptions subject to authorization, if the alternatives do not provide the same
level of reward.
11
Similarly, the choice for the introduction of a particular exclusive
right (e.g. an exclusive rental right)
12
cannot be attacked because of a lack of necessity
solely because the legislature could also have opted for a remuneration right, if one
assumes that the latter does not offer same degree of additional protection to the
interests of authors as an exclusive right. Whether such policies would nevertheless
be considered disproportionate depends on their impact on other rights (as well as
potential public policy goals). This is the subject of the third test.
61. Balancing/proportionality stricto sensu. Proportionality in the
narrow sense (or: stricto sensu) concerns what is commonly referred to as balancing.
It compares the positive effects of a measure on one principle with the negative effects
on the other principle. If the negative effects exceed the benefits, the measure cannot
be deemed proportional. By contrast to the suitability and necessity tests, the
balancing exercise is not factual, but evaluative. Balancing in this sense requires a
normative assessment as to the degree of interference with the principle that is limited
by the measure and the degree of fulfilment of the principle that the measure aims to
protect, taking into consideration the intrinsic (or: abstract) importance attributed to
both principles.
13
Well-known is Robert Alexy’s concretization of this balancing
8
If a state of affairs is pareto-efficient this means it is not possible to improve the position of
one party or preference criterion (in this case: principle) without making another worse off.
Cf., with regard to balancing and pareto-efficiency, Alexy 2002, p. 398, Barak 2012, p. 320,
Rivers 2006, p. 198 and Sieckmann 2012, p. 93.
9
Cf. Alexy 2002, p. 397. Nevertheless, one can characterize the (sub-)question of whether the
hypothetical alternative means limit the constitutional right to a lesser extent as a question of
law. See Barak 2012, p. 327.
10
Cf. Barak 2012, p. 323-324.
11
One could argue that extending protection to uses where market failure prevents
authorization being sought is not necessary, since the author would not obtain remuneration
either way.
12
Cf., infra, Section 4.3.2.2 and the discussion of the Metronome case.
13
Sometimes this analysis is dependent on a factual assessment. For instance, the purpose of
a measure may be to prevent harmful health effects of a certain substance by banning that
68
exercise by way of a triadic model, in which interference and fulfilment are both
qualified as either light, moderate, or serious, and then compared.
14
Numerous
occasions of judicial balancing in this sense will be discussed in this chapter. An early
example in the copyright context can be found in the German Schallplatten case, in
which the BVerfG had to consider, inter alia, the question whether a reconfiguration
of the rights of performers, by which certain exclusive rights were replaced by
remuneration rights not only for new but also for existing performances, was
(un)constitutional. The Court found no violation of the right to property in this regard.
It noted that the need for uniformity of the law was such a weighty consideration as
to justify an interference with existing rights. In contrast, the Court noted that the
interference with existing legal positions was only “minor” (geringfügig). This trade-
off between benefits and costs was therefore proportional.
15
In general, the greater the degree of interference with one principle, the greater must
be the degree of fulfilment of the other principle.
16
One should only consider the
marginal effects of the measure under consideration: what are the costs and the
benefits to the level of fulfilment of the respective principles with and without the
measure?
17
Potential (hypothetical) alternatives to the measure under consideration
may also need to be taken into account when considering proportionality stricto
sensu. That is, a particular measure may also be disproportionate if an alternative
measure is available which fulfils the one principle to a slightly lesser extent, while
interfering significantly less with the other principle.
18
Thus, although one might not
be able to question the choice for the introduction of a particular exclusive right for a
lack of necessity, one could argue that the availability of an alternative measure in the
form of a remuneration right renders the choice for an exclusive right
disproportionate stricto sensu.
19
The comparison of degrees of fulfilment and interference should take account of the
intrinsic importance of the competing rights and interests, that is the importance
attached to them regardless of the circumstances of the case. Their intrinsic
substance. The importance of the purpose (protection of health) will depend on the actual
harmful effects of that substance, which is a factual matter. Cf. the discussion of the German
Cannabis case, which provides a good example, by Klatt & Schmidt 2012, p. 78 et seq.
14
See Alexy 2002, p. 401 et seq. and Alexy 2003a, p. 440 et seq. Alexy readily admits that a
model with finer graduations can be used, although he points out the finer the scale used the
more difficult it may be to distinguish between the different steps.
15
German Federal Constitutional Court (First Senate), 8 July 1971, 1 BvR 766/66 –
Schallplatten, para C.V.1., published in GRUR 1972, p. 491, at p. 495.
16
Cf. Alexy 2002, p. 102, Barak 2012, p. 363, Rivers 2006, p. 200, Sartor 2013, p. 1442 and
Sieckmann 2012, p. 97.
17
Cf. Barak 2012, p. 350 and Sieckmann 2012, p. 94.
18
Cf. Barak 2012, p. 352-356.
19
Cf. the discussion of the Metronome judgement, infra, in Section 4.3.2.2.
69
importance may not be the same.
20
This is not only true when one compares a public
policy objective with a fundamental right, but also when one compares fundamental
rights. Although there generally is no hierarchy between different fundamental rights,
this does not necessarily mean that interferences of similar intensity with different
fundamental rights are always valued the same.
21
The right to life, for instance, may
be valued higher than the right to freedom of expression, which in turn may be valued
higher than the right to property. In such a case a moderate degree of fulfilment of the
right to property will not be able to outweigh a similarly intensive degree of
interference with the right to freedom of expression.
Finally, a particular degree of fulfilment of a certain principle will only be proportional
to a similar degree of interference with another principle if the probability of those
degrees of fulfilment and interference actually materializing are the same. That is to
say, a small chance of great positive effects on one principle will not be capable of
outweighing almost certain great negative effects on the other principle.
22
The
chances of those effects are often subject to uncertainty. Such uncertainty may cause
the primary decision-maker to have considerable discretion.
3.2.2 Proportionality, balancing and discretion
62. Deference and restraint. This sub-section explores the subject of
discretion of the primary decision-maker. When reviewing the proportionality of a
particular measure, all elements (degree of fulfilment/interference, intrinsic
importance, uncertainty/unreliability) of the balancing equation may impact the
exercise of restraint or deference (or both) by courts. Deference is understood here as
the willingness to accept as accurate factual or normative assessments made by the
primary decision-maker. Restraint is understood here as the willingness to accept the
choice of the primary decision-maker which degree of fulfilment of the principles at
stake to realize.
23
63. Uncertainty and “epistemic discretion”. Every step of the
proportionality assessment may be complicated by unreliability or uncertainty
surrounding the premises on which it is based. This raises the question which
20
Cf. Alexy 2003a, p. 440, referring to “abstract weight”.
21
Barak 2012, p. 361 notes that a principle’s intrinsic importance (“social importance”) may
be influenced by both external and internal factors. External factors concern “society’s
fundamental perceptions … shaped by the culture, history and character of each society”.
Internal factors concern the relation between fundamental rights. For example, those rights
whose protection is a precondition for the exercise of other rights have a higher intrinsic
importance.
22
Cf. Rivers 2007b, p. 120.
23
Cf. Rivers 2006.
70
principle is to be given precedence in light of this unreliability or uncertainty, as well
as whether a court should defer to the assessments made by the legislature (or other
primary decision-maker) in cases of review.
Following Alexy, two types of uncertainty are distinguished: factual and normative.
The former concerns uncertainty about relevant factual prognoses. For instance: will
granting authors an exclusive right incentivize creation? The latter concerns the
normative qualification of the attainment of or interference with a particular
principle. For instance: does an interpretation of the exclusive reproduction right of
phonogram producers that would permit them to prohibit the use of samples for the
creation of new works create a moderate or serious interference with the freedom of
arts? These forms of uncertainty give rise to what Alexy termed “epistemic discretion”,
because it arises due to gaps in our knowledge about the world.
64. Factual uncertainty. Factual uncertainty impacts all three stages of
proportionality analysis. Factual prognoses already play a significant role when
determining the suitability and necessity of a measure. Respect for the rule of law,
which includes respect for human rights, arguably requires the legislature to at least
enquire whether the measure is suitable and whether less restrictive means are
available.
24
If the legislature has duly undertaken such an enquiry the judge may have
to defer to the legislature’s assessment, given that it typically lacks the institutional
competence or expertise to make the relevant assessment fully by itself.
25
For Robert
Alexy, such legislative discretion flows from the formal principle of democratic
decision-making, which holds that important societal decisions should as much as
possible be made by the democratically elected legislature.
26
The legislature should be
permitted to legislate even if the effects of the measures it adopts are uncertain, and
even if this means there exists a possibility that constitutional rights will in reality be
breached (but which breach is itself epistemologically uncertain).
27
However, the
stronger the intensity of the interference with a right, or the greater its intrinsic
importance, the less a court should defer and the more evidence it should require as
to the veracity of the factual basis for the contested measure.
28
This is because as the
interference with a right increases, the less courts should accept as true the empirical
24
Cf. Brems & Lavrysen 2015, p. 150-151.
25
Cf. Rivers 2006, p. 199-200.
26
Alexy 2002, p. 416-417.
27
Rivers 2007a, p. 183 asserts that this is better explained by two different formal principles,
since it is arguable that the importance of a decision increases together with the seriousness
of interference. Instead, he submits that “we need a formal principle stating that courts should
care more about checking that serious limitations of rights are indeed proportionate [and that
t]his must be balanced with another formal principle stating that legislatures should identify
and evaluate the factual basis for their proposed policies”.
28
Cf. Christoffersen 2010, p. 32-33, Gerards 2013, p. 476 and Rivers 2006, p. 205.
71
prognoses made by the legislature. Alexy captured this in his second “Law of
Balancing”: “The more heavily an interference in a constitutional right weighs, the
greater must be the certainty of its underlying premises.”
29
In regard to the intensity
of the review courts should employ in respect of empirical assessments the foregoing
implies that, in the words of Julian Rivers, “as a limitation of rights becomes more
serious, the reliability of the factual prognosis must rise, in the sense that the court
may demand that the legislature put more procedural resources into establishing the
factual basis, before it will accept the prognosis as correct”.
30
Unreliability may also affect the balancing stage. The assessment of the degree or
seriousness of the interference may be unreliable. This may be a factual issue. For
instance, the assertion that the grant of a bundle of exclusive rights to phonogram
producers will lead to substantial investment in the recording industry and provide a
necessary incentive for the production of phonograms may be unreliable given the
available evidence. This concerns first of all the question of suitability. Even if (some
degree of) suitability is established, however, it may for instance still be uncertain
whether the lack of protection would only affect (the incentive for) production of
phonograms in a minor way, and hence result in a light interference, or instead
greatly, and hence a serious interference.
It must be recalled that in balancing one weighs a particular degree of interference of
one principle against the degree of fulfilment of another, both in light of their
respective reliability.
31
But how should it be determined which particular degree of
interference should be “placed in the balance”, so to speak, if different evidence points
to different degrees of interference? For instance, there may be evidence that the
absence of protection for phonogram producers only affects phonogram production
in a minor way, while there may simultaneously be evidence that it does so greatly.
What is the level of interference to be relied on in balancing? Klatt and Schmidt have
called this the problem of classification. They suggest that, prior to balancing, one
should consider the two or more possible degrees of interference and their respective
reliability, in order to determine which degree of interference should be relied on. The
guiding principle in this process, which they have termed the “Law of Classification”,
holds that “[t]he more reliable a more intensive classification of intensity of
interference is, the more reliable must be a less intensive classification of intensity of
29
Alexy 2002, p. 418. His first (substantive) Law of Balancing espouses the idea that the
greater the degree of interference with one principle, the greater must the degree of fulfilment
of the other principle (Alexy 2002, p. 102)
30
Rivers 2007a, p. 183.
31
Like for the degree of interference, Alexy suggests the use of a triadic scale to qualify the
reliability (reliable, maintainable or plausible, not evidently false). See Alexy 2003a, p. 447.
72
interference.”
32
Thus, if, for instance, both the reliability of the evidence that copyright
protection creates a minor incentive and the reliability of the evidence of it creating a
great incentive, is weak, one should assume for the sake of balancing that it creates a
great incentive, taking account of the weak reliability of the premises on which that
assumption is based. When a constitutional right is concerned, there can be no
empirical epistemic discretion for the primary decision maker in those cases,
according to Klatt and Schmidt.
33
65. Normative uncertainty. As noted, it may also be uncertain how a certain
interference should be normatively qualified (e.g., if using the triadic scale, as light,
moderate or serious). This issue is conceptually more problematic than factual
uncertainty, because it is ultimately the task of courts to say what the law is. In cases
of legislative decision-making, the legislature must respect fundamental rights and
should not be put in a position in which it itself can determine what those rights
require. In many cases there will be no reasonable disagreement concerning the
degree of interference, meaning this type of uncertainty does not arise.
34
However, in
some cases the degree of interference may be arguable, in particular given the fact that
such classifications cannot always be made with much precision. Alexy has suggested
that in those cases of uncertainty there may be reason to grant what he calls normative
epistemic discretion to the legislature.
35
The pertinent question is, of course, when
granting such discretion is appropriate. Application of the Alexy’s second law of
balancing
36
appears counterintuitive. If one is not certain how “heavily an interference
in a constitutional right weighs” to begin with, the answer to the question as to the
“certainty of its underlying [normative] premises” cannot be answered. Clearer in this
regard is Rivers’ reformulation, which holds that “the greater the chance that one
principle may be seriously infringed, the greater must be the chance that another
principle is realised to a high degree”.
37
How to recognise cases of uncertainty? In
32
Klatt & Schmidt 2012, p. 81.
33
Klatt & Schmidt 2012, p. 83. Such discretion only exists if there is a stalemate between the
possible degrees of interference in light of their respective reliability. For instance, if there is
only less reliable evidence of protection creating a great incentive, but relatively certain
evidence of it providing a weak incentive, it should be left to the authorities to choose with
degree of interference should be relied upon. Klatt and Schmidt 2012, p. 94-99 further submit
that using “classification balancing” to determine the empirical epistemic discretion makes
recourse to formal principles, a weak point in the theory of Alexy, unnecessary. Cf. however,
Rivers 2007a, p. 188, who points out that “[l]egislative discretion is unavoidably related to
questions of competence and legitimacy, and is thus institutionally aware. It requires the
recognition of formal principles, not least the principle that the judiciary are the guardians of
rights”.
34
Alexy 2002, p. 402 et seq. & p. 424.
35
Alexy 2002, p. 420-422.
36
See, supra, n 29 and accompanying text.
37
Rivers 2007a, p. 181.
73
practice, it is up to the ultimate decision maker or reviewing body, typically a court,
to grant normative knowledge-based discretion or not. In the judicial context, the
starting point should be that courts should assess interferences with rights
independently. This is so because courts, certainly constitutional courts, are typically
viewed as the guardians of rights.
38
The question as to the degree of interference is a
legal question. The stronger a court itself perceives the interference to be, the less it
should defer to the judgement of the legislature. In case of lighter (perceived)
interferences courts could grant more leeway.
39
Classification balancing may again
further illustrate how discretion can arise. A court may find it plausible that a certain
measure moderately interferes with a particular right. At the same time, it may
recognize as not evidently incorrect the argument that the interference should be
classified as serious. In this case one could argue that the lower degree of interference
combined with a (proportionally) larger degree of certainty offsets against the higher
degree of interference combined with a lower degree of certainty. The legislature may
assume there is only a moderate interference. Conversely, if the measure is instead
intended to prevent an interference with a particular right it may, given the same
arguments are made, assume it prevents a serious interference. The legislature has
discretion; courts should defer.
40
A second form of (normative) uncertainty concerns the intrinsic importance to be
given to certain rights or interests. Should, for instance, a serious interference with
the right to freedom of expression and a serious interference with the right to property
both be given equal weight in the abstract sense? The abstract valuation of such rights
may differ depending on time and place. An important instance of discretion as
38
This is not universally true. For instance, in the Netherlands art. 120 of the Constitution
prevents courts from reviewing the constitutionality of acts of Parliament and treaties.
However, Dutch courts are to some extent able to indirectly review such acts for interferences
with fundamental rights by virtue of art. 94 which states: “Statutory regulations in force within
the Kingdom shall not be applicable if such application is in conflict with provisions of treaties
or of resolutions by international institutions that are binding on all persons.”
39
Using a nine-point scale (qualifying interferences as very serious, moderately serious, less
serious and so forth, down to very light) this can be more easily illustrated (on this “double-
triadic” model see also Alexy 2002, p. 412). A court may be uncertain whether to qualify a
certain interference as very or only as moderately light. In this case there may be little
objection to either qualification. See also Rivers 2007a, p. 184-185, pointing out that courts
can grant greater discretion by using more or less fine scales. In case of the example, using the
single-triadic model would mean the interference should be qualified as “light” either way,
implying greater discretion for the legislature. The foregoing comports with the assertion by
Alexy 2002, p. 424, that “as interference with a constitutional right increases, so also does not
only its substantive resistance, but also the cognizability of gradual distinctions.”. In other
words, the more serious an interference is, the more courts should, and are able to, recognise
finer distinctions of interference.
40
On normative epistemic discretion, see Klatt & Schmidt 2012, p. 85 et seq. A separate issue
is how courts ought to take account of uncertainty when they are the primary decision-maker.
Some suggestions in this regard are made in Section 5.4.2.
74
regards the intrinsic importance of principles is found in supranational adjudication.
The relative nature of the intrinsic importance of principles may (or arguably: should)
move international adjudicators, such as the ECtHR, to allow a certain diversity as to
how different rights are valued. This follows from the subsidiary nature of such
adjudicators, permitting different political communities to maintain, to a certain
extent, their own hierarchy of values. The ECtHR recognises this as part of the
doctrine of the margin of appreciation granted to states, discussed further in § 81. This
type of deference has been appropriately termed “cultural discretion” by Rivers.
41
The
result is that the intrinsic importance attached to a certain convention right relative
to another right or (public) interest may differ from one state to another. As a result,
the supranational court will accept as “balanced” a greater variety of measures.
66. “Structural discretion”. Unreliability and uncertainty may thus give rise
to what Alexy termed “epistemic discretion”, typically giving rise to deference on the
part of courts when they review legislation. (Legislative) discretion may also be
“structural”, giving rise to restraint.
42
In the first place, such discretion may arise in
the rare event that the scales are considered balanced. Alexy suggests that in those
instances the primary decision-maker can choose to give precedence to either
principle.
43
Barak argues we should distinguish between conflicts between
constitutional rights on the one the one hand, and conflicts between the public
interests and a constitutional right on the other. In regard to the former he appears to
agree with Alexy, considering it arguable that there is no reason to find a limiting law
disproportional where the advancement of one right is equal to the limitation of
another right.
44
However, when it comes to conflicts between the public interest and
a constitutional right Barak suggests that whether legislatures ought to be granted
discretion is more dependent on the views adopted by a particular constitutional
democracy. In some democracies the public interest may be considered particularly
weighty, meaning the legislature should be free to choose to pursue it in the event of
balanced scales. In others, the special position of human rights may mean no
discretion exists. Barak himself is a proponent of the latter view, based on the special
41
Rivers 2007a, p. 178-180 and Rivers 2007b, p. 118-119. Rivers points out that this type of
discretion has “no role in a single political community”, because like cases must be treated
alike, which implies a “single scheme of legal values” (Rivers 2007b, p. 119). One could argue
that national courts may defer to evaluation of the legislature as to the intrinsic importance of
various rights, provided the legislature uses the same evaluations consistently, although it may
allow slight fluctuations of those evaluations over time as public morality changes.
42
The term “structural discretion” was coined by Alexy. See Alexy 2002, p. 394 et seq.
43
Cf. Alexy 2002, p. 396 et seq.
44
Cf. Barak 2012, p. 366-367.
75
position of human rights in a constitutional democracy and the role of the courts as
guardians of those rights.
45
In the second place, structural discretion may arise due to the fact that there are
various “necessary” policy options which are all balanced. For instance, the legislature
may consider a measure which would create a serious interference with a right, but
which would cure or prevent a serious interference with another right or legitimate
public interest. Alternatively, the legislature could also opt for a measure that creates
only moderate interference, but which would only offer moderate protection to the
other right or public interest. The discretion that exists as a result follows primarily
from the interplay between the necessity requirement and balancing. This can be
explained as follows. Provided the end is legitimate, the legislature typically has great
freedom in choosing which ends to pursue and which means to use.
46
The requirement
of necessity permits any means as long as no less restrictive means are available that
achieve the end to the same extent. In the words of Rivers: “[Necessity] allows every
level of achievement of every permissible end.”
47
Ordinarily, this means there are
many “necessary” options, all of which achieve a certain end to a different degree.
Thus, if the legislature decides to pursue maximal protection of the author, then broad
exclusivity and abolition of (most)
48
limitations and exceptions could be considered
“necessary” to achieve the end (protection of the author) to the chosen degree
(maximal). Equally, a more limited form of protection of the author by way of a
remuneration right might provide the legislature with another “necessary” option
(protection of the author, but to a lesser degree). The legislature can choose between
these options, meaning they can choose to what degree to pursue a certain end, as
long as the option chosen is also balanced/proportional in the narrow sense, which
the first option arguably is not.
As with epistemic discretion, courts play an essential role in determining the scope of
this type of “structural” discretion, which is principally based on the belief that
democratically elected legislatures are better placed, have more legitimation, to
decide the appropriate trade-off between conflicting principles. As Rivers has pointed
out, courts can take a pragmatic attitude which allows basically any degree of
realisation of a certain end as long as the costs are minimized, i.e. necessary. Courts
can also take an idealistic attitude, requiring an optimisation of interests to the
45
Cf. Barak 2012, p. 367. Cf., however, Alexy 2002, p. 384 et seq., where he suggests that in
the event of balanced scales liberty should prevail. The suggestion that in that case the
legislature has discretion first appeared in the postscript in the English translation, written
fifteen years later.
46
Alexy 2002, p. 395-396 calls this “end-setting” and “means-selecting” discretion.
47
Rivers 2007a, p. 171.
48
Cf. supra, n 11.
76
highest point. Rivers: “[T]he court will need to be convinced itself that the decision,
rule or policy in question, even though necessary, really is the best way of optimising
the relevant rights and interests.”
49
Courts can also take a middle-of-the-road
approach, in essence focusing on making sure a certain measure is not evidently
disproportional.
50
The degree of restraint is a function of the principle that courts respect the balance
struck by the democratically elected legislature.
51
In this regard the degree of restraint
bears close resemblance to the degree of deference. But whereas the latter specifically
concerns respecting the legislature’s assessment as to the degree of interference or
fulfilment (or the intrinsic importance), the former concerns respecting the
assessment as such that the measure in question is balanced. The degree of deference
decreases as the degree of interference increases: the more serious an interference,
the more closely courts should examine whether the degree of fulfilment of the
purpose pursued is really commensurate with the seriousness of the interference.
52
The degree of restraint, in turn, should decrease as the intrinsic importance of the
limited right increases. The more important the right that is interfered with is, the
more closely (idealistically) courts should scrutinize the policy-choice made to
ascertain that the alternative, less restrictive policy options are really not
appropriate.
53
Either way, the pragmatic approach, which allows any “necessary” trade-off, should
be rejected because it gives practically unlimited discretion to the legislature,
provided the chosen measure does not go further than necessary, permitting even very
serious limitations of rights set off against negligible gains. The legislature’s choice,
however, should always at the very least be reasonable. Someone burdened by a
certain measure must hypothetically be able to agree with it. That is, they must be able
to admit that, even though they disagree with the appropriateness of a particular
measure, the appropriateness is subject to reasonable disagreement. Proportionality
in the narrow sense therefore requires courts to ascertain at the very least that the
trade-off is not unreasonable.
54
49
Rivers 2006, p. 203.
50
Cf. Rivers 2007a, p. 170-177 and Rivers 2007b, p. 114-118. For an enlightening graphical
illustration of the relation between necessity and proportionality in the narrow sense, see both
contributions by Rivers cited in this footnote.
51
Cf. Sieckmann 2012, p. 104.
52
The fact that both interference and importance are ranked as “serious” is not sufficient to
give discretion to the legislature. At that point, courts may be forced to ascertain whether both
are really equally “serious”; they should use finer scales. On the “nine-point scale”, see supra,
n 39.
53
Rivers 2007a, p. 186-187.
54
Cf. Kumm 2012, p. 208 et seq. Cf. also Rawls 1996, p. 217.
77
Some may justifiably object even more categorically to this type of restraint, which
accepts as authoritative the balancing decision reached by the legislature. It is the duty
of courts to say what the law is, specifically to say what fundamental rights command
(and conversely, what they do not command). A measure is either proportional or it
is not. This itself, is a legal question, to be answered by a court.
55
Moreover, if one
agrees with the conceptualization of fundamental rights as consisting of values or
ideals that must be respected and realized as far as possible, one cannot accept as
proportional measures that promote one right (or public policy goal) to a lesser degree
than it limits a particular fundamental right.
56
That the legislature accepts it as
proportional does not make it constitutionally acceptable. Nevertheless, although
questions as to intensity of interference and fulfilment are legal ones, courts may be
only willing to ascertain whether the cost/benefit relationship is roughly
commensurate. This is in part due to the fact that exact qualifications are impossible
(normative uncertainty), but also a result of the restraint courts may ultimately choose
to exercise in evaluating the trade-off as such. Thus, a highly pragmatic court will
qualify any interference/fulfilment the same (using a monadic scale), while an
idealistic court will use a very fine scale. The fine-ness of the scale is therefore both a
function of the intensity of the interference
57
and the importance of the principles
involved. The greater either the degree of interference with or the intrinsic importance
of a right, the greater the urgency for a court to determine whether the degree of
fulfilment of the countervailing principle is equivalent, implying the use of finer
scales.
58
As noted above, restraint is also in order when there are different “necessary” policy
options that can be considered balanced. This leaves the choice which of these policy
options to adopt free. The choice will be political. In that regard restraint is in order;
it is not the place of the judge to choose the preferred policy. As suggested earlier, the
choice to introduce a particular exclusive right may be attacked for being
disproportionate stricto sensu in comparison with the alternative policy option of a
remuneration right. If the court concludes both options are balanced, it will not
question the legislature’s choice for either. Note that this result can also be reached
by granting the legislature epistemic discretion. In that case, discretion would arise
because it impossible to tell which policy better achieves the legislature’s aim and/or
how to qualify the respective interferences with the limited fundamental right(s). That
55
Cf. Barak 2012, p. 414.
56
Cf. Alexy 2002, p. 401 et seq. See also, supra, n 3.
57
See, supra, n 39.
58
cf. Alexy 2012, p. 347 and Rivers 2007a, p. 183-185.
78
is, it is considered both arguable that the law permits and that it prohibits the choice
for an exclusive right in the place of a remuneration right.
Structural and normative epistemic discretion can go hand-in-hand. Let us again take
the example of the introduced exclusive right. Assume that, compared to the status
quo, it moderately contributes to its aim and that the assessment that it does so is
reliable. This means that, in order to be proportional, the interference with the
countervailing right may not be greater than moderate.
59
If we consider it both
arguable that the existence of a moderate interference is reliable and that of a serious
interference plausible, there may be a stalemate giving rise to normative uncertainty
(giving rise to discretion on the part of the legislature to accept as true either the
existence of a moderate or a serious interference). At the same time, the degree to
which the alternative remuneration right would interfere with the countervailing right
may be similarly uncertain, also giving rise to normative uncertainty. This means that
the legislature has the normative epistemic discretion in regard to either option to
assume that they are balanced. At the same time, it permits the legislature a choice
between either option. It also has structural discretion.
3.2.3 Some further remarks
67. Levels of abstraction in balancing. It should be noted that balancing can
occur at different levels of abstraction. At a high level of abstraction the process of
balancing can be defined as constituting a general rule which requires costs and
benefits to be compared in the manner described here.
60
As Barak explains, at this
level of abstraction balancing “does not specifically relate to many of the aspects in
which the particular right in question becomes a special object of either limitation or
protection”.
61
Balancing occurs at a much lower level of abstraction when this general
rule is applied to a specific set of circumstances. This form of balancing, often called
“ad hoc” balancing, looks to determine the proportionality of a particular measure.
62
The costs and benefits of that measure to the relevant principles are determined in
light of the specific circumstances. Ad hoc balancing is thus used to determine the
outcome for the specific case at hand. For instance, a particular parody might be
denied the protection offered by the parody exception because, due to its specific
59
Assuming that the legislature is free to legislate if the scales are balanced. See, surpa, n 42-
45 and accompanying text.
60
Cf. Barak 2012, p. 362ff, who calls this the “basic balancing rule”.
61
Barak 2012, p. 542.
62
Coined by Melville Nimmer. See Smolla 2019, § 2:55 et seq. See also Aleinikoff 1987, p. 948
et seq. and Barak 2012, p. 367ff, as well as McFadden 1988, p. 600 et seq., who uses the term
“result-balancing”.
79
characteristics, the application of that exception would not “strike a fair balance”.
63
There is also an intermediate form of balancing, with a higher degree of abstraction
than ad hoc balancing. This has been called “rule-balancing” and “definitional
balancing”.
64
The aim of this type of balancing is to not just resolve the conflict in the
case at hand, but also to formulate a specific rule which can be applied in future cases
without further balancing. A weakness of such rules is that they can always be subject
to the argument that their application in subsequent cases does not lead to a balanced
outcome given their specific circumstances.
65
A variation on this, is Barak’s principled
balancing, which does not per se lead to a specific rule but rather to an elaboration of
conditions or criteria guiding the balancing process.
66
For instance, based on the
generally accepted differentiation in the degree of protection accorded to political,
artistic and commercial speech, the CJEU could define different standards to adjudge
the permissibility of political, artistic and (purely) commercial parodies, respectively.
68. Courts as legislators. Oftentimes courts resort to balancing, not in order
to review legislation, but to determine the content or applicability of a particular rule,
such as determining whether a particular kind of use should fall within the scope of
the exclusive reproduction right (definitional balancing) or whether a particular
parody should be regarded as permissible (ad hoc balancing).
67
In that sense, one
could say that courts themselves act as legislator. Courts must in these cases
themselves determine which of the available scenarios provides the “optimal”
outcome. Typically, this is a binary choice: the use falls within the scope of the rule or
not; the rule applies or not. Obviously, the question of discretion will play little role in
such scenarios. Only in answering the hypothetical question whether, if the legislature
had intended for the rule to apply in these circumstances, would it have acted outside
the scope of its discretion, does the question of discretion arise. More commonly,
however, a court will assess which of the available scenarios best reconciles the
conflicting principles. Nevertheless, empirical and normative uncertainty may still
arise and impact decision-making. The impact of a decision one way or the other on
the degree of fulfilment of one principle may be unknown. This should impact the
weight attributed to this principle. One could argue that normative uncertainty ought
63
Cf. Case C-201/13 Deckmyn and Vrijheidsfonds ECLI:EU:C:2014:2132, para 32, discussed,
infra, § 106.
64
Respectively by McFadden 1988, p. 598-600 and Aleinikoff, 1987, p. 979, referring to the
first edition of Nimmer of Freedom of Speech. However, in later editions Nimmer dropped
this terminology. See Smolla 2019, § 2:12, n 1. For an illuminating example, see Sartor 2013,
p. 1451.
65
Cf. Aleinikoff, 1987, p. 979.
66
Barak 2012, p. 542 et seq.
67
Whether and to what extent balancing indeed does and can play a role in copyright
adjudication is discussed in subsequent chapters.
80
to be largely irrelevant, since a court must decide and since it has the competence to
“say what the law is”. Nevertheless, courts should take account of reasonable
disagreement of the premises on which they base their (balancing) conclusions. If
such disagreement exists, the weight they attach to a certain principle should be
attenuated accordingly.
68
3.3 In defence of (judicial) balancing
69. Controversiality of balancing. Judicial balancing is certainly not
uncontroversial.
69
A number of objections merit specific discussion, because they also
affect the extent to which balancing is viewed as a viable model for judicial decision-
making in copyright discourse.
70
The first of these objections concerns the argument
that balancing is incapable of providing a consistent and coherent framework leading
to a predictable outcome, the second that where the balance has already been struck
by the legislature further judicial balancing is undemocratic.
3.3.1 The lack of rational decision-making
70. Incommensurability and rationality. First, does the use of balancing
promote consistent and coherent decision-making? One can distinguish two elements
to the criticism that it cannot: (i) balancing cannot proceed along rational standards,
nor (ii) is there a common metric that would allow different values to be compared,
i.e. they are incommensurable. In the case of copyright this criticism implies, for
instance, that it is impossible to compare the degree of interference with the right to
freedom of expression created by copyright with the degree to which granting authors
exclusivity fulfils the purposes underlying that protection. And even if these values
were comparable, judges would be unable to do so rationally. The incommensurability
objection is discussed first.
71. Incommensurability. The incommensurability objection to balancing is
often illustrated with the observation by US Supreme Court Justice Antonin Scalia
that it requires “judging whether a particular line is longer than a particular rock is
heavy”.
71
That is to say, it is suggested that there is no common metric to determine
whether the intensity of interference with one right is greater than the degree of
68
On this also Section 5.4.2.
69
For an overview of common objections, see, e.g., Barak 2012 ch. 18 (including a retort) and
Jestaedt 2012.
70
See further, infra, Section 4.4.3.
71
Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888, 897 (1988).
81
fulfilment of another right.
72
It would require some form of utilitarianism, making the
feasibility of proportionality analysis “stand or fall on having the correct answer to an
extremely vexing and controversial question in moral philosophy”,
73
and turn
balancing into a consequentialist assessment which seems difficult to square with the
deontological foundations of human rights.
74
Does incommensurability stand in the way of judicial balancing? Both Barak and
Alexy have suggested common denominators that preserve the character of balancing
as an evaluative comparison of the effects of a particular measure on different rights
(and in some cases the public interest). Barak has submitted that a common
denominator, which he points out need not be quantitative, can be found in the
marginal social importance of rights and public interests. Whether balancing rights
against each other or rights and the public interest, one can compare the marginal
social benefits gained by protecting or advancing one against the marginal social costs
of the harm to the other.
75
The social importance of rights and public interests is
contingent on several factors which may differ from one country to the next, such as
the prevailing political and economic ideologies, a country’s history and its political
system.
76
Alexy argues rights and interests can be compared indirectly, that is by
determining their importance to the constitution, charter of rights, etc. As soon as one
admits that a rational discourse is possible about what is permitted and prohibited by
the constitution, “a common point of view is possible”.
77
72
See to this effect, e.g., Aleinikoff 1987, p. 972 et seq., Bendor & Sela 2015, p. 540-542, De
Schutter & Tulkens 2008, p. 191 et seq, Petersen 2013, p. 1389 et seq., Zucca 2007, p. 85, all
with further references.
73
Tsakyrakis 2009, p. 471.
74
Cf. Karlander 2018, p. 64-65.
75
Barak 2012, p. 483-484.
76
Ibid., p. 349. Endicott 2013, p. 8-9 argues that the identification of this single criterion does
not “eliminate incommensurability if the application of the criterion depends on
considerations that are themselves incommensurable” and that “the availability of the
covering value, ‘importance’, does not give us any reason to think that the grounds on which
judgements are to be made are commensurable”. Nevertheless, for Endicott this does not
mean that courts should not be authorized to “reconcile incommensurable considerations” (p.
14), suggesting that “certain human interests can be best secured by a power in an independent
tribunal” (p. 17). He recognizes that this role imparts a significant discretion onto courts,
although he is unconvinced that proportionality analysis can make good on its promises to
bring “objectivity or transparency to human rights adjudication” (p, 19).
77
Alexy 2003a, p. 442. Skeptical about the potential for the constitution to provide a common
point of view is, e.g., Webber 2010, p. 194-196, who argues that if a constitution is to enable
commensuration, “the constitution should provide for the triadic scale Alexy develops or it
should provide guidance for how to classify degrees of interference”. Moreover, he suggests
that the constitution says little about the degree of fulfilment as “light, moderate, or serious”
of principles which are not protected as such by the constitution but admitted by it as reasons
for the interference with other principles, such as the public interest. This, in my opinion fails
to appreciate that balancing is not a mathematical and technical exercise in which degrees of
fulfilment and interference are independently determined and compared, even if it may often
presented as such, but first and foremost a model of rational legal argumentation that requires
82
Once one accepts the existence of such a common denominator, meaningful
comparisons become possible. One should be careful, however, to resist the argument
that meaningful comparisons are not possible because degrees of interference and
fulfilment are not quantifiable in the first place. Exact quantification of such degrees
is not necessary. They need not be determined on a cardinal scale. It is sufficient that
one can establish an ordinal relationship between the principles at issue. That is, one
outweighs the other, or they are of equal weight. The use of limited scales, such as
Alexy’s triadic model, reflects this.
78
It allows us to compare the impact of a measure
on different principles. This permits a rational justification of the decision as to why
a particular principle outweighs another principle.
Ultimately, one could argue that the incommensurability challenge fails, because it
questions the existence of an element which is not essential to balancing in the first
place, namely an accurate quantification of the values of principles. That is, one may
question whether the common denominators suggested by Barak and Alexy render
the degrees of fulfilment of different principles commensurable on a cardinal scale,
whether what matters in balancing is whether they can be rendered comparable and
ranked ordinally. Even if neither common denominator achieves the former, they
certainly appear capable of enabling the latter, permitting a rational discourse about
the relative weight of the conflicting principles.
79
Thus, while it is, for instance, not
possible to claim that in a particular set of circumstances the right to freedom of
expression weighs 2.347 times heavier than the right to property, it is possible to claim
that the degree of fulfilment of the former is important enough as to outweigh the
degree interference caused with the latter, compared to the alternative state of
affairs.
80
Of course, as noted above, some would argue that rational justification in
balancing is equally impossible, which is discussed next.
more and better reasons for an interference the more serious that interference or important
the right is (reflected in the idea of variable scales, see § 66), both determined in light of the
values enshrined in the constitution.
78
Cf. Borowski 2013, p. 1413, arguing that Alexy’s triadic scale “resembles far more closely an
ordinal scale than a cardinal scale” (p. 1415), and Klatt & Meister 2012, p. 59.
79
On (in)commensurability and (in)comparability, cf. da Silva 2011, p. 282 et seq. and Klatt &
Meister 2012, p. 59 et seq.
80
Critical hereof is nonetheless Urbina 2015, p. 595-596, who suggests that degrees of
fulfilment of different values cannot be compared if those values themselves are
incommensurable. The counterargument is that different (degrees of fulfilment of) principles
(values) are not compared as such, but in reference to their common Archimedean point (e.g.
the values enshrined in the constitution as such; cf., however, the critique of Endicott, supra,
n 76), and in relation to their degree of fulfilment in the alternative state of affairs. E.g., the
status quo may provide for a great degree of fulfilment of two principles, while the alternative
provides an even greater degree of fulfilment of the one principle (although slightly) but only
a minor degree of fulfilment of the other principle, meaning it seems possible to rationally
prefer the former alternative. That is not to say there will never be subjectivity in this
determination, which is discussed in the following paragraph.
83
72. Irrationality. Some have questioned that balancing can proceed rationally,
even if one accepts commensurability or comparability. Habermas’ critique that
“weighing takes place either arbitrarily or unreflectively, according to customary
standards and hierarchies” is well-known.
81
Similarly, McFadden has suggested that
there can be no consistency in balancing because it is entirely dependent on the
judge’s world views.
82
In other words, it is suggested that balancing is a subjective
undertaking depending on a judge’s personal preferences and beliefs and should
therefore be rejected.
Balancing does not claim to lay down a “fully determinate objective yardstick”.
83
It is
questionable whether determining the content of normative propositions can ever be
fully objective.
84
There is therefore no denying that subjective evaluations do play a
role. But the existence of a subjective element does not by itself render a judgement
irrational or arbitrary.
85
The judge has a certain measure of discretion, but this
discretion is hardly unlimited and does not by itself lead to irrationality of their
decisions.
86
This is not the case for normal legal argumentation, and there is no reason
why this would be the case for balancing.
87
In fact, it is submitted that balancing (or
more broadly: proportionality analysis) promotes rational decision-making by
providing a framework that forces courts to be clear, coherent and transparent. It
forces courts to recognize which rights and legitimate (public) interests are affected
by a specific measure and adduce good reasons for any limitation of rights. Judges
should clarify why they attach a particular (intrinsic) weight to a right or interference.
And by considering both sides of the balance, they must justify precisely why the
outcome is one way or another.
88
In the words of Barak: they must “expose … their
train of thought”.
89
All this does not mean that balancing is morally neutral.
90
Moral considerations
concern the “external justification” of the balancing decision. That is, they relate to
the premises used in balancing, that is the intrinsic importance and degree of
interference/fulfilment of the principles in question.
91
There often may be a fierce
debate about the qualification of a particular degree of interference of one principle
81
Habermas 1996, p. 259.
82
McFadden 1988, p. 642 et seq.
83
Borowski 2013, p. 1411.
84
Cf. Pulido 2006, p. 197.
85
Cf. Barak 2012, p. 485, Novak 2010, p. 103 et seq. and Pulido 2006, p. 197.
86
Cf. Barak 2012, p. 391-392, who points to various procedural and substantive constraints on
the discretion of the judge.
87
Cf. Borowksi 2013, p. 1411.
88
Cf. Feteris 2008, p. 482.
89
Barak 2012, p. 486.
90
Cf. the criticism by Möller 2007, p. 460.
91
Cf. Alexy 2014, p. 58-59 and Klatt & Meister 2012, p. 52 et seq.
84
(e.g. as light or serious) and how this relates to the degree of fulfilment of the other
principle.
92
But, again, this does not mean that balancing as a process is irrational. In
response to Habermas, Alexy has countered that even in regard to unquantifiable
values courts are capable of making reasoned judgments as to the intensity of
interferences. This does not mean their judgment cannot be beyond dispute, but it
does not make their judgment arbitrary, as long as it is supported by justifiable
arguments.
93
For instance, one can disagree with the qualification by the CJEU in
Scarlet Extended of the obligation imposed on an Internet Service Provider to
introduce a certain filtering measure to detect copyright protected content as a serious
interference with the freedom to conduct a business, but one can agree that the CJEU
adduced good (if scant) reasons why it considered that interference serious.
94
3.3.2 Judicial review, democracy and judges as legislators
73. An objection from democracy. Perhaps the real problem with
proportionality analysis, at least for some, is the idea itself of judicial discretion and
the associated uncertainty. It is telling that Habermas himself subscribes to Dworkin’s
improbable view that adjudication should focus on a solution that “fits” the total
constellation of norms, to the extent that there is a single right solution for every
case.
95
Judicial discretion, by contrast, implies a degree of uncertainty. But whether
couched in terms of discretion or not, judicial decision-making is anyway uncertain.
This is all the more true for fundamental rights adjudication, in which norms are
characterized by a large degree of open texture. Only through repeated and consistent
application will the uncertainty concerning application subside. Nevertheless, one has
to agree with the statement that the discretion inherent in proportionality
analysis/balancing does “expose judges as lawmakers”.
96
Along with creating
uncertainty, it therefore appears to give judges a role as policy-makers, although
making policy is traditionally the domain of the other branches of government. Where
a law strikes a balance between two rights, or between a right and the public interest,
it is not the judge’s position to intervene. This, at least, is the second common
92
Cf. Alexy 2003b, p. 139 and da Silva, p. 288.
93
Cf. Alexy 2002, p. 401 et seq. and Alexy 2003b, p. 136 et seq.
94
Case C-70/10 Scarlet Extended v SABAM ECLI:EU:C:2011:771, paras 47-48. See, similarly,
Case C-360/10 SABAM v Netlog ECLI:EU:C:2012:85, paras 45-46. More egregiously, the
CJEU did not qualify the degree of interference with the right to property, making its balancing
considerations one-sided. See further, infra § 110
95
Habermas 1996, p. 211 et seq. See also p. 260-261. Habermas’ alternative, which requires
courts to “examine prima facie applicable norms in order to find out which is most suitable to
the case at hand” (p. 260), seems incapable of avoiding his own criticism of the balancing
paradigm. His solution “hides the balancing, but cannot make it disappear” (Maes 2008, p.
86). Borowski 2013 notes that the problem with much of the criticism of proportionality is that
it fails to suggest a convincing alternative.
96
Stone Sweet & Mathews 2008, p. 76.
85
objection against proportionality analysis and balancing in particular, and judicial
review in general.
74. The importance of (limited) review. The position that courts ought not
to review the “constitutionality” of laws should be rejected, at least as far as the CJEU,
and by extension Member State courts as EU courts, is concerned. This is so, in the
first place, because the power to decide on the compatibility of certain acts with treaty
norms and fundamental rights protected in the EU Charter has been explicitly
delegated to the CJEU.
97
Related to this formal argument is a substantive one. If
fundamental rights are to be taken “seriously”,
98
that is to say not subject to the whims
of the majority, it is questionable that the decision power as to which regulations do
and which do not violate fundamental rights should lie with the body against whose
regulatory power those rights are intended to offer protection. On the other hand, it
is true that this power should not lie completely in the hands of judges either. In the
first situation the legislature has unlimited discretion with regard to the protection
and limitation of fundamental rights. In the second situation it has no discretion at
all. Both situations are undesirable.
99
As set forth in the previous section, a proper
conception of proportionality analysis recognises both structural and epistemic forms
of discretion, to use Alexy’s terminology. The legislature’s margin of discretion may
be substantial, both to make factual and normative determinations in the face of
uncertainty and to make reasonable policy choices. But this does not eliminate judicial
control of legislative decision-making. The more important a right is and the more
serious its limitation, the greater must be the scrutiny by the courts. This control itself
also reflects a balance, between the principle that courts are the guardians of rights,
which should be protected as far as possible, and the principle that the legislature
takes as many important decisions for society as possible.
100
75. Democracy and review. This substantive defence of proportionality
analysis as a tool for review can also be rooted in the idea of democracy. Alexy has
suggested that judicial review is compatible with democracy because courts, although
typically not directly elected, can nevertheless take part in public decision-making
through deliberation: they constitute a form of argumentative representation of the
people, looking for correct answers through practical discourse. But, judicial review
can work “only if the arguments presented by the constitutional court are sound and
only if a sufficient number of members of the community are able and willing to
97
Art. 6 TEU in conjunction with art. 263 and 267 TFEU.
98
Not necessarily in the Dworkinian sense as trumps superseding the general interest, but in
the sense that, in the words of Barak 2012, p. 365, “[i]t is required that the public interest be
so important that it justifies the limitation of the constitutional right at issue”.
99
Cf. Alexy 2002, p. 391-394.
100
Cf. Ibid., p. 417 and Rivers 2007a, p. 187-188.
86
exercise their rational capacities.”
101
If these conditions are met, however, rational
members of society will normally accept the court’s judgements as correct. Judicial
review would be accepted as a democratic institution because it is able to represent
those members of society. Mattias Kumm has added to this argument by making the
case that judicial review is not just compatible with, but also required in a liberal
constitutional democracy. For the outcome of democratic deliberation to be binding
on all citizens as free and equal parties, it must be possible for those citizens whose
rights are limited by a particular piece of legislation to recognise that that legislation,
despite possible reasonable disagreement about the issue, plausibly reflects “a
collective judgement of reason” about how to best actualize the commitment to
rights.
102
The key question is whether the possible disagreement is reasonable. Courts,
in this regard, function to “police the boundaries of the reasonable”.
103
They should
be able, through judicial review, to strike down that legislation that constitutes an
unreasonable interference with rights by the majority. Kumm: “[I]t is implausible to
claim that [a citizen’s] right to justification [that good public reasons for a limitation
of their rights exist] is taken seriously without the appropriate institutionalizing of a
procedure that allows acts of public authorities to be subjected to impartial review in
a way that provides the unduly burdened individual with an effective remedy.”
104
76. Review and proportionality. A final question that must be discussed is
whether proportionality analysis, with its three prongs, is the appropriate tool for
determining the priority between different rights and public policy goals, in particular
as a tool to review measures that limit the enjoyment of a particular fundamental
right. For Alexy, this follows from the necessary connection between fundamental
rights and proportionality. One must take two steps to conclude this necessity.
105
First,
one must accept that the requirements of proportionality follow from the character of
certain norms. Second, one must accept that fundamental rights have that character.
As noted at the start of Section 3.2, balancing concerns the search for an optimal or
proportional relationship between different principles. If one intends to realize a
particular right, goal, value, ideal et cetera as far as possible, it must be admitted that
limitations imposed on those norms must be pareto optimal, that is conform to the
requirements of suitability and necessity.
106
As to proportionality stricto sensu, the
101
Alexy 2005, p. 580. See, on deliberative democracy and judicial review also, for instance,
Forst 2001, Van Hoecke 2001 and Zurn 2002.
102
Kumm, 2012, p. 214 (italics in original).
103
Ibid., p. 215 (italics in original).
104
Ibid., p. 216. Similarly, Barak 2012, p. 472 et seq. See also ibid., p. 474, n 75 for an extensive
collection of references to further literature about the relation between judicial review and
democracy.
105
Cf. Alexy 2014, p. 57.
106
Cf. the literature cited, supra, n 8.
87
extent to which one such norm can be realized depends on its relation to the other
norms.
107
Thus, this character of norms requires that a measure which, for instance,
sacrifices the level of fulfilment of one principle to increase the level of fulfilment of
another principle, must balance the costs to the first and the benefits to the second.
108
This conception of the (meta-)principle of proportionality as being implicit in the
character of certain norms can explain how courts view the norms they apply. If, for
instance, a court is willing to accept measures limiting a right in a manner that is not
strictly necessary, it is unlikely to view that right as a norm that must be realized to
the greatest extent possible.
109
Do fundamental rights have the character of norms that must be realized to the
greatest extent possible? It has been suggested that they only have this character if it
has been given to them by a “positive legal decision of the constitutional legislature”.
110
First, one could argue that as far as EU Charter rights are concerned, this character is
confirmed by article 52(1), which explicitly requires limitations on rights to comply
with the “principle of proportionality”. Second, Alexy argues that this character
follows from the human rights nature of fundamental rights.
111
Reflecting ideals of
liberty, equality and human dignity, human rights certainly aspire to their full
realization. (Most) fundamental rights, in turn, are the positivization of these human
right ideals.
112
They are typically subjectively intended as the implementation of
human rights by the “constitutional legislature”. More importantly perhaps, it must
be considered the objectively construed intention that fundamental rights are to
reflect human right ideals, a cornerstone of liberal democracy.
113
In some instances,
this ideal character may be expressed by way of formulating fundamental rights in an
absolute manner, for instance in the case of the prohibition of torture and slavery.
114
In other cases, fundamental rights may be formulated in a more open-textured way,
such as the right to freedom of expression in article 10 ECHR and article 11 EU
107
Cf. Alexy 2002, p. 66-69.
108
Cf. Alexy 2014, p. 59.
109
See in this regard, infra, § 80, concerning the suggestion that the ECtHR views ECHR rights
as minimum norms.
110
Jestaedt 2012, p. 161.
111
See Alexy 2012, p. 332-334 and Alexy 2014, p. 61-63.
112
Cf. Barak 2012, p. 40-41, referring to constitutional rights as “made up of fundamental
values [that] in turn reflect ideal aspiring to be realized to their maximum extent”.
Nevertheless, Barak questions the necessary connection between fundamental rights and
proportionality, suggesting proportionality merely defines the extent of the realization of
rights at the sub-constitutional level, not their actual scope. Ultimately, however, Barak rejects
alternative methods of evaluating the constitutionality of the limitations of rights, concluding
proportionality is the only appropriate method of review.
113
Cf. Alexy 2014, p. 61. This objective intention can be construed both based on the intention
one could reasonably ascribe to the constitutional legislature and on the “fundamental values
of the legal system” that fundamental rights are intended to realize. Cf. Barak 2002, p. 67.
114
Cf. art. 4 and 5(1) of the EU Charter, respectively.
88
Charter.
115
In those cases the meaning given to those rights arguably must be in
accordance with the underlying human rights dimension.
How the character of fundamental rights is construed, of course, is a matter of
interpretation in which a court may have discretion. However, generally there will be
little reason not to interpret fundamental rights in accordance with their human rights
dimension. This is in particular true of classic civil and political rights in which this
dimension will typically be especially strong. Nevertheless, in the case of
supranational “human rights” documents, such as the ECHR, courts might take a
more relaxed approach, treating norms instead as minimum requirements. This is not
necessarily egregious, since most signatory states will have a bill of rights of their own
which serves to give full effect to the protection of human right ideals. However, if a
supranational human rights document is the only source of human rights protection
the interpretation of fundamental rights should fully reflect their underlying human
right dimension. This may be the case in respect of the EU Charter if the application
of national standards of fundamental rights protection endangers the “primacy, unity
and effectiveness of EU law”
116
, meaning Charter rights should be treated as rights
aspiring to their full realization, since they will be the only fundamental rights norms
that apply.
3.4 Synthesis
77. Synthesis. Balancing of normative arguments entails the search for an
optimal or proportionate relationship between those arguments given a particular set
of circumstances. When these normative arguments, or principles, have the character
of norms that must be realized as far as possible, it follows that any measure that
limits them must be pareto-optimal and must represent a proportionate benefit to
another principle. These requirements are reflected in the (meta-)principle of
proportionality as it is applied by numerous (constitutional) courts. The principle of
proportionality has been originally developed and applied in order to review
(legislative) measures that limit fundamental rights: such measures must be suitable,
necessary and proportionate stricto sensu. This review of legislation is typically
characterized by the exercise of deference and restraint on the part of courts in order
to recognize the primacy of the legislature as a norm-maker, granting that legislature
a certain degree of discretion.
Courts may also resort to balancing to determine the “optimal” outcome in a
particular case. A prime example hereof is the horizontal effect of fundamental rights,
115
Cf. art. 11 of the EU Charter.
116
Case C-399/11 Melloni ECLI:EU:C:2013:107, para 60.
89
notably in the course of the application of open-ended standards. It permits courts to
establish the priority between conflicting rights and interests in the particular
circumstances of the case. For instance, the question whether a particular quotation
is in accordance with fair practice, as required by article 5(3)(d) of the InfoSoc
Directive, can be conceptualized as a balancing exercise.
Balancing has been criticized but the criticism is generally not convincing. The
suggestion that balancing is “more like a slogan than a methodology” is therefore – in
my opinion – unwarranted.
117
It may have some merit when balancing is applied
haphazardly, as a rhetorical tool to justify the outcome one desires. But properly
applied, balancing can increase the coherence and transparency of decision-making
and promote rational and impartial decision-making, by elucidating which factors
ought to be taken into account every time. Moreover, by clarifying which arguments
the court considered persuasive and by explaining their relative weight vis-à-vis other
arguments, the predictability of judgements can be increased. It must be admitted
that there is discretion in balancing, not in the last place because balancing is not
morally neutral, but this does not make balancing judgements irrational.
117
De Schutter & Tulkens 2008, p. 191.
90
4 PROPORTIONALITY, FUNDAMENTAL RIGHTS AND THE
CONCEPT OF FAIR BALANCE IN COPYRIGHT
ADJUDICATION AND BEYOND
4.1 Introduction
78. Introduction. There exists a long history of use of proportionality analysis
and balancing among European courts. This is certainly also true for the two “highest”
European courts, the European Court of Human Rights and the Court of Justice of the
European Union. In fact, the concept of “fair balance” as used by the latter finds its
origin in the case law of the former. This chapter examines how that concept has been
developed against the background of the use of proportionality analysis both generally
and in copyright cases, first by the ECtHR (Section 4.2) and second by the CJEU
(Section 4.3). Finally, the use of proportionality analysis and balancing in copyright,
in particular by the CJEU, is evaluated (Section 4.4).
4.2 Proportionality and balancing at the European Court of Human
Rights
79. Outline. This section hardly pretends to offer a full account of the use of
proportionality analysis and balancing by the European Court of Human Rights.
1
Instead, it makes some general observations against the background of the framework
outlined in the previous chapter and discusses the use of proportionality and the
concept of “fair balance” in cases concerning copyright.
4.2.1 General observations
80. Fair balance. The concept of fair balance, at the centre of this study, has its
roots in the case law of the European Court of Human Rights. The Court found this
notion, originally conceived of as a “just balance”, to be implied in the European
Convention on Human Rights. According to the Court, the general aim of the
Convention is the effective protection of human rights within the context of the
“considerable possibilities [for the contracting states] for regulating the exercise of
these rights”, which regulation “may vary in time and place according to the needs
and resources of the community and of individuals”.
2
The ECtHR recognized that the
ECHR operates in a force field of the demands of the general interest on the one hand
1
For extensive examinations, see, e.g., Arai-Takahashi 2002, Christoffersen 2009 and Legg
2012.
2
Decision of the European Court of Human Rights (Plenary), in the case "Relating to certain
aspects of the laws on the use of languages in education in Belgium" v. Belgium (Merits)
(generally known as the “Belgian Linguistics” case), Appl. No. 1474/62, 1677/62, 1691/62,
1769/63, 1994/63 and 2126/64, of 23 July 1968, para I.B.5.
91
and protection of individual rights on the other. According to the Court “[t]he
Convention therefore implies a just balance between the protection of the general
interest of the Community and the respect due to fundamental human rights while
attaching particular importance to the latter”.
3
Although in the French language
versions of its judgements the Court has consistently used the term “juste équilibre”,
it switched to using the term “fair balance” in the English language versions of later
judgements. It has not explained this terminological shift from “just” to “fair”, but it
does not seem that the Court intended this shift to imply a change in meaning.
4
The
balance sought by the Convention is thus, in a general sense, one between the general
interest of the community and rights of individuals, although the concept of fair
balance also makes a frequent appearance in conflicts between different fundamental
rights themselves.
The concept of fair balance is closely connected to the principle of proportionality as
elaborated in the previous chapter. In the words of the Court: “[A]n interference must
strike a ‘fair balance’ between the demands of the general interest and the
requirements of the protection of the individual’s fundamental rights. There must be
a reasonable relationship of proportionality between the means employed and the aim
pursued.”
5
This determination of proportionality is highly fact-specific. In particular,
the Court does not appear to strictly adhere to the three-prong analysis often
associated with proportionality.
6
Nevertheless, proportionality analysis plays an
important role in determining the lawfulness of interferences with Convention rights,
notably with regard to articles 8 through 11 of the Convention and article 1 of the First
Protocol.
7
Only rarely does the ECtHR reject a measure as disproportionate for a lack of
suitability.
8
As to the requirement of necessity, the Court’s approach has been
3
Ibid.
4
See, for instance, Decision of the European Court of Human Rights (Plenary), in the case of
Sporrong and Lönnroth v. Sweden, Appl. No. 7151/75 and 7152/75, of 23 September 1982,
para 69, in which the Court started to refer to the “fair balance” implied in the Convention,
while citing the “Belgian Linguistics” case (supra, n 2) in which the originally termed concept
of just balance had been identified. On some other occasions the Court has instead used the
term “correct balance”. See, e.g., Decision of the European Court of Human Rights (Third
Section), in the case of Giuran v. Romania, Appl. No. 24360/04, of 21 June 2011, para 43 and
decision of the European Court of Human Rights (Grand Chamber), in the case of Satakunnan
Markkinapörssi Oy and Satamedia Oy v. Finland, Appl. No. 931/13, of 27 June 2017,
para 122.
5
See, for instance, Decision of the European Court of Human Rights (First Section), in the
case of L.B. v. Italy, Appl. No. 32542/96, of 15 November 2002, para 23.
6
In general, see Christoffersen 2010. Critical about the lack of a separate assessment as to
suitability and necessity is for instance Gerards 2013.
7
Cf. Brems & Lavrysen 2015, p. 140.
8
In some simple cases the Court may find a measure disproportionate because it is clearly
unsuitable to achieve the aims pursued. For example, Gerards 2013, p. 471 who points to
92
inconsistent.
9
In some cases it is explicitly endorsed,
10
while in others it is
categorically rejected.
11
Jonas Christoffersen has suggested that the reluctance to
adopt an independent necessity test stems from the minimum nature of the ECHR.
He asserts that the Convention leaves the Contracting Parties a certain margin of
discretion with regard to the level of protection. As a result, the fact that a less
restrictive measure was available to it does not by itself mean that the Convention has
been violated. The question as to the availability of less restrictive means may become
relevant when the Court considers the minimum level of protection to be violated.
12
81. Discretion and the margin of appreciation. Instead of explicitly
addressing the issues of suitability and necessity, the ECtHR typically conducts an
integrated proportionality assessment in which factual and normative considerations
are combined, asking whether the state has struck a fair balance given the margin of
appreciation (i.e. discretion) afforded to it.
13
All of the balancing factors identified in
§ 61 (intrinsic importance, degree of fulfilment/interference, reliability) play a role in
this determination and influence the margin of appreciation.
First, the intrinsic importance of the Convention right influences the margin of
appreciation. It was suggested in § 66 that the greater the intrinsic importance of a
right, the smaller the degree of discretion of the legislature ought to be. In a
supranational context such as in the case of the ECHR it is not the legislative
discretion that decreases specifically, but the discretion (or: margin of appreciation)
Soltsyak v. Russia (Appl. no. 455/05 of 10 February 2011), in which it was held that the
confiscation of the passport of a retired civil servant who had worked with classified
information to protect national security was disproportionate, because that measure was not
suitable for the protection of national security: the confidential information could also be
transmitted without the former civil servant needing to travel. Cf. also the discussion of the
Bălan judgement in § 83.
9
See for an extensive analysis the survey by Brems & Lavrysen 2015.
10
E.g. Decision of the European Court of Human Rights (Grand Chamber), in the case of Nada
v. Switzerland, Appl. No. 10593/09, of 12 September 2012, para 183 (“[F]or a measure to be
regarded as proportionate and as necessary in a democratic society [under article 8], the
possibility of recourse to an alternative measure that would cause less damage to the
fundamental right in issue whilst fulfilling the same aim must be ruled out”).
11
E.g. Decision of the European Court of Human Rights (Plenary), in the case of James and
Others v. The United Kingdom, Appl. No. 8793/79, of 21 February 1986, para 51 (“This
amounts to reading a test of strict necessity into [article 1 of the First Protocol], an
interpretation which the Court does not find warranted.”) and Decision of the European Court
of Human Rights (Grand Chamber), in the case of Evans v. The United Kingdom, Appl. No.
6339/05, of 10 April 2007, para 91 (“[T]he central question under Article 8 is not whether
different rules might have been adopted by the legislature, but whether, in striking the balance
at the point at which it did, Parliament exceeded the margin of appreciation afforded to it
under that Article.”).
12
Christoffersen 2010, p. 23-26.
13
Several authors, such as Gerards 2013 and Greer 2004, have called for a decoupling of factual
and normative consideration.
93
of the signatory state as a whole. Peggy Ducoulombier has observed in this regard
that:
“A hierarchy of Convention rights would thus follow the scope of the margin of
appreciation allocated to States, confirming that at the top of this hierarchy lie non-
derogable and absolute rights such as articles 2 (the right to life), 3 (prohibition of
torture and inhuman and degrading treatment and punishment) and 4§1 (prohibition
of slavery and servitude), for which the margin of appreciation plays no or almost no
role, then would come articles 5 (right to liberty) and 6 (right to a fair trial), the
margin of appreciation only playing a residual role in restrictions imposed on these
articles, then we would find articles 8-11 (respectively the right to private and family
life, freedom of thought, conscience and religion, freedom of expression and freedom
of assembly and association) for which the margin plays an important albeit variable
role, and at the bottom of the hierarchy would lie other articles, in respect of which
the margin usually deploys its full effect, such as articles 1 or 3 of the first additional
protocol (respectively the right to property and the right to free elections).”
14
Moreover, the ECtHR will exercise greater restraint if the state has to strike a balance
between two Convention rights than when it is confronted with a limitation aimed at
protecting other (legitimate) interests (with a presumably lower intrinsic
importance). As to the latter, the ECtHR considered in Chassagnou that such a
limitation must be supported by “indisputable imperatives”.
15
Second, the more
serious an interference, the better the reasons must be in support of the measure
creating the interference.
16
The margin of appreciation in this regard increases,
however, when there is a lack of a European consensus, in particular as regards
morals.
17
One could view this as a form of normative epistemic discretion. Third, the
Court takes into account the reliability of the premises that form the basis of the
balancing assessment: if the right interfered with is weightier or the interference
particularly severe, the level of factual support for the (degree of) fulfilment of the aim
by the limiting measure must be larger. On the other hand, if the aim pursued weighs
particularly heavy, less factual support may be required.
18
The foregoing can be illustrated by the Grand Chamber’s approach in Hatton,
concerning the alleged interference with the right to respect for private and family life
in article 8 ECHR of people living in the vicinity of the London Heathrow by the
increase in noise coming from night time flights to and from that airport. In
14
Ducoulombier 2015, p. 45-46 (footnote omitted).
15
Decision of the European Court of Human Rights (Grand Chamber), in the case of
Chassagnou and Others v. France, Appl. No. 25088/94, 28331/95 and 28443/95, of 29 April
1999, para 113.
16
E.g. Decision of the European Court of Human Rights (Plenary), in the case of Dudgeon v.
United Kingdom, Appl. No. 7525/76, of 22 October 1981, para 52.
17
E,g, Decision of the European Court of Human Rights (Plenary), in the case of Handyside v.
United Kingdom, Appl. No. 5493/72 of 7 December 1976, para 48 and Decision of the
European Court of Human Rights (Plenary), in the case of Rees v. The United Kingdom, Appl.
No. 9532/81, of 17 October 1986, para 37 et seq.
18
Cf. Christoffersen 2010, p. 30-35.
94
determining whether the state had struck a fair balance the Court referred, inter alia,
to the fact that comparatively few people were affected by the flight noise, that the
value of homes had not been negatively affected, that measures available to reduce
noise had been taken and that it was reasonable to assume that the night flights at
least to some extent contributed to the economy, despite a lack of “specific indications
about the economic cost of eliminating specific night flights”. It concluded that the
state had not exceeded its margin of appreciation. In other words, because it did not
regard the interference with article 8 as particularly serious, the lack of concrete
evidence supporting the measure was not inhibitory.
19
Nevertheless, the margin of appreciation granted to states in a particular case is
notoriously difficult to predict.
20
Moreover, it is important to note that the margin of
appreciation afforded to states under the ECHR is different from the margin of
discretion national courts may want to grant to legislatures, either when applying
(national implementations of) Convention rights, national constitutional rights, or
even EU Charter rights. This is because the ECtHR is in a position that demands the
exercise of both greater deference and restraint. It must exercise greater deference
because it evaluates not just legislative action, but also factual and normative
determinations by national courts. It must exercise greater restraint because the
ECtHR (must) take(s) account of cultural differences in a way national courts do not.
21
National courts show deference and restraint in order to respect the separation of
powers, while the ECtHR does so based on the subsidiary nature of (the protection
offered by) the Convention.
22
On a final note, one could ask the question whether the concept of “just balance” or
“fair balance” is impacted by any substantive notions of justice or fairness. I would
argue that in the context of the assessment of the permissibility of a measure limiting
19
Decision of the European Court of Human Rights (Grand Chamber), in the case of Hatton
and Others v. The United Kingdom, Appl. no. 36022/97, of 8 July 2003, paras 125-129. The
Chamber, by contrast, had found an interference based on both a lack of government research
into the suitability and necessity of the measure (Decision of the European Court of Human
Rights (Third Section) of 2 October 2001, para 102 et seq.). The Grand Chamber rejected this
overture to a requirement of strict necessity by considering that ‘[w]hilst the State is required
to give due consideration to the particular interests, … it must in principle be left a choice
between different ways and means of meeting this obligation’ and that ‘[t]he Court's
supervisory function … is limited to reviewing whether or not the particular solution adopted
can be regarded as striking a fair balance’ (para 123).
20
For that reason, Brauch 2004 argued that the margin of appreciation should be abandoned
altogether. Others, such as Gerards 2010 have instead proposed a more structured approach
to the margin of appreciation.
21
Cf. Rivers 2006, p. 175, pointing out it would be “inappropriate for the courts of a single
political community” to take cultural diversity into account when reviewing legislation
applicable to that community.
22
Cf. Barak 2012, p. 420 and Christofferson 2009, p. 236.
95
the exercise or enjoyment of a right (i.e. review balancing
23
), the qualification that the
balance struck must be “just” or “fair” is intended to reflect that it must not exceed the
margin of appreciation left to the state. That is, the measure must not be
disproportionate. Whether the state could have struck a “fairer balance” is not in
question.
24
A balance is not just or fair, if the gains to the public interest or a right are
incapable of outweighing the harm done to a Convention right. Of course,
considerations concerning justice and fairness do indirectly play a role in assessing
the intrinsic importance and degree of fulfilment of a particular right or interest. As
noted, this assessment is not morally neutral.
25
4.2.2 The European Court of Human Rights and copyright
82. Proportionality and copyright. Proportionality analysis of state
interference with a Convention right in the copyright context has occurred in relation
to two rights, the right to property (art. 1P1) and the right to freedom of expression
(art. 10 ECHR). In some other cases, the applicant’s claim was rejected ratione
materiae or personae, that is to say before any proportionality analysis was
conducted.
26
These cases are discussed, where relevant, elsewhere.
27
83. The right to property. In Bălan the applicant complained about the
violation of his right to property as a result of a government decision to use, without
consent, a photographic work in which he owned the copyright on official national
identity cards and the subsequent national courts’ refusal to enforce his copyright.
The ECtHR considered that there was an interference with the applicant’s right
because the “unauthorised use was expressly prohibited by law and was opposed by
the applicant”.
28
The Court concluded that this interference was not proportionate
because it was “apparent that this socially important aim could have been reached in
23
Cf., supra, § 57.
24
Decision of the European Court of Human Rights (Grand Chamber), in the case of S.H. and
Others v. Austria, Appl. No. 57813/00, of 3 November 2011, para 106.
25
Cf., supra, § 72.
26
For a recent overview of the ECtHR’s case law with regard to intellectual property law in
general, see Geiger & Izyumenko 2018.
27
See in particular, infra, § 126 for a discussion of Dima v. Romania. Not discussed are
Decision of the European Court of Human Rights (Third Section), in the case of SC EDITURA
ORIZONTURI SRL v. Romania, Appl. No. 15872/03, of 13 May 2008 (violation of art. 6 ECHR
and 1P1 as a result of the reversal by the Romanian courts of a final and irreversible decision
of the Romanian supreme court) and Decision of the European Court of Human Rights
(Second Section), in the case of AEPI S.A. (société hellénique pour la protection des droits
d’auteur) v. Greece, Appl. No. 48679/99, of 3 May 2001, in which the ECHR rejected a
complaint based on art. 1P1 for the lack of a sufficiently established claim (possession) and a
complaint based on art. 10 ECHR ratione personae. For a brief discussion of the latter decision
in English, see Geiger & Izyumenko 2018, p. 41-42.
28
Decision of the European Court of Human Rights (Fourth Section), in the case of Bălan v.
Moldova, Appl. No. 19247/03, of 29 January 2008, para 39.
96
a variety of ways not involving a breach of the applicant's rights”.
29
In essence, the
Court thus rejects the measure for a lack of any rational connection between the public
interest in issuing identity cards and the need to use the applicant’s photo to achieve
that purpose. The means were wholly unsuitable to achieve the aims pursued.
SIA AKKA/LAA concerned an alleged interference with the right to property of a
collective rights management organization (CRMO), representing about two
thousand Latvian and two million international authors. The CRMO had been unable
to reach an agreement on the terms of new licensing agreements with a number of
broadcasters for the broadcast of musical works, after the previous licensing
agreements had expired. It started legal proceedings against several broadcasters
which continued to broadcast works, requesting damages and injunctions. In two
different sets of proceedings the Latvian courts did not grant an injunction, but
instead imposed on the parties an obligation to enter into a licensing agreement on
terms determined by the court. After considering that there was an interference with
a possession and that this interference was prescribed by law, the ECtHR considered
the questions whether the interference pursued a legitimate aim and struck a fair
balance. As to the former (existence of a legitimate aim), the Court recalled that the
State’s margin of appreciation “in implementing social and economic policies” is wide
when it comes defining the “general interest” in limiting the right to property,
meaning it will only intervene if the State’s “judgement is manifestly without
reasonable foundation”.
30
The Court emphasized that the national courts had
attempted to strike a balance between the right of the CRMO to be remunerated for
the use of the works and the interest of the defendants to obtain a license. Taking into
account that the fact that the lack of an existing licensing agreement covering both
those interests “was to a certain extent due to the [CRMO’s] limited efficiency in
carrying out negotiations with the defendants”, the ECtHR concluded that the
national courts’ “judgement on the question of public interest could not be considered
as manifestly without reasonable foundation”.
31
As to the proportionality question,
the ECtHR identified what can be called a number of principled balancing rules.
32
It
noted that, one, the national courts gave the parties the time during the proceedings
to reach an agreement themselves, two, an injunction would not be in the best interest
of authors because they would not “receive the maximum benefit from the oeuvres”
and, three, the obligation to enter into a licensing agreement was limited in scope and
29
Ibid., para 45.
30
Decision of the European Court of Human Rights (Fifth Section), in the case of SIA
AKKA/LAA v. Latvia, Appl. No. 562/05, of 12 July 2016, para 69.
31
Ibid., para 70.
32
Cf. supra, § 67.
97
time.
33
In regard to the latter consideration, the Court added that “the authorities had
minimally restricted the right of the [CRMO]”, which one can read both as an
indication of necessity (pareto optimality) and as the suggestion that the Court
considered there to be only a light interference with the right to property.
34
Based on
these considerations the Court concluded that the national courts had struck a fair
balance between the right to property and the general interest. As for the three criteria
identified by the Court, it may be presumed that if courts give “due consideration” to
those criteria in future similar cases, the ECtHR will require “strong reasons” to find
a violation of the right to property.
35
84. Freedom of expression. The potential interference by (the enforcement of)
copyright of the right to freedom of expression has been the subject of a number of
decisions by both the ECtHR and the now abolished European Commission of Human
Rights. The older decisions, all from the Commission, were relatively succinct in their
rejection of the applications’ claims that their right to freedom of expression had been
violated.
In De Geïllustreerde Pers the applicant complained that its right to freedom of
expression was violated as a result of the refusal of the copyright holder to permit it
to use comprehensive lists of television and radio programme information in weekly
magazines. The Commission argued that only the author of such information, being a
“compilation of facts”, could invoke the right to freedom of expression to disseminate
it. Further, the freedom of the press was not threatened because the public was
deprived of any information, because that information could be obtained from a wide
variety of other sources.
36
In France 2 the applicant, a television broadcaster, had been held liable for copyright
infringement after broadcasting images showing paintings under copyright in their
entirety during a news broadcast. In this case the Commission did not have trouble
finding that there was an interference with the applicant’s right to freedom of
expression as a result of the judgement ordering the applicant to pay damages.
Nevertheless, it again had similarly little trouble rejecting the complaint. The
33
Decision of the European Court of Human Rights (Fifth Section), in the case of SIA
AKKA/LAA v. Latvia, Appl. No. 562/05, of 12 July 2016, paras 77-79.
34
Ibid., para 79.
35
Cf. for instance, by analogy, Decision of the European Court of Human Rights (Grand
Chamber), in the case of Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland, Appl.
No. 931/13, of 27 June 2017, para 198.
36
European Commission of Human Rights, in the case of De Geïllustreerde Pers v. the
Netherlands, Appl. No. 5178/71 of 6 July 1976, paras 82-86. Cf. also European Commission of
Human Rights, in the case of Televisier v. the Netherlands, Appl. No. 2690/65 of 3 October
1968, which concerned an issue similar to that in De Geïllustreerde Pers N.V., but which was
settled before the Commission decided on the merits.
98
limitation was prescribed by (copyright) law, and “necessary in a democratic society”,
as prescribed by article 10(2) ECHR. The Commission noted it was not the task of the
Convention institutions to regulate conflicts that are liable to arise between the right
to freedom of information and the rights of authors. It did consider that it must
ascertain whether there is a proportional link between the limitation imposed and the
interests protected by that limitation. Such a link existed, according to the
Commission, simply because the limitation, existing in a judgement ordering the
payment of damages, was the result of the neglect to pay a royalty fee prior to the
broadcast in the first place. It was “reasonable” for the national courts, to take account
of the interest of authors.
37
In Aral, the last of these cases decided by the Commission, the original authors of a
cartoon claimed a violation of their right to freedom of expression, after the Turkish
national courts had held that they were no longer permitted to publish certain
copyright protected cartoons as a result of a contractual relationship with a previous
employer. The Commission was concise in its rejection, considering that the national
courts had explicitly noted that the original authors were not prohibited from drawing
the same cartoon characters in different “subjects and stories” and that any limitation
of the right to freedom of expression was necessary in a democratic society in order to
protect the rights of “one of the parties to a contract”.
38
Although one can recognize some elements of proportionality and balancing in the
Commission’s decisions, one can hardly call its analysis comprehensive. In particular
its consideration in De Geïllustreerde Pers that copyright did not limit the right to
freedom of expression of the applicant and the lack of engagement with the limitation
imposed by copyright itself in France 2, which created an obligation to seek
authorization and pay a royalty fee in the first place, are difficult to understand. The
Commission’s approach reflects a position of utmost deference and restraint in
evaluating limitations imposed on freedom of expression by national copyright
legislation and enforcement measures.
In two 2013 decisions, Ashby Donald and Neij and Sunde Kolmisoppi (also: The
Pirate Bay) the ECtHR took a different, more structured approach to the issue. Ashby
37
European Commission of Human Rights (Second Chamber), in the case of France 2 v.
France, Appl. No. 30262/96 of 15 January 1997. For a (critical) discussion of De Geïllustreerde
Pers and France 2, see for instance Geiger & Izyumenko 2018, p. 31-37 and Hugenholtz 2001,
p. 358-360.
38
European Commission of Human Rights (Second Chamber), in the case of Aral, Tekin and
Aral v. Turkey, Appl. No. 24563/94 of 14 January 1998. The applicants in Aral also argued a
violation of art. 1P1. This was rejected for a lack of an interference with the right to property,
as the transfer of the copyright was considered a result of (the interpretation of) domestic law
and a lawful contract, which finding of the national courts was neither arbitrary nor
unreasonable.
99
Donald concerned the criminal conviction by the French courts for copyright
infringement of three fashion photographers who had taken photographs at various
fashion shows and disseminated these online, on the website of a fashion magazine.
Together the defendants were ordered to pay fines and damages of almost 300 000
euro. Neij and Sunde Kolmisoppi also concerned a criminal conviction, specifically of
two persons behind the file-sharing website The Pirate Bay for their involvement in
the furtherance of copyright infringement by the users of that website. They were
sentenced to ten and eight months in prison, respectively, and held jointly liable for
damages of approximately five million euro.
Although the ECtHR rejected both complaints, the one in Neij and Sunde Kolmisoppi
specifically as manifestly ill-founded, some elements of its assessment in both cases,
which share great similarity, stand out. The Court started by emphasizing the broad
scope of the right to freedom of expression, noting that it covers both the right to
impart information and the right of the public to receive it, that it applies to both the
content of the information and to the way it is transmitted or received, and that it also
covers commercial expressions. Therefore, there had been an interference with that
right in both cases.
39
The Court had no trouble finding that the interferences were
both provided by (copyright) law and pursued a legitimate purpose in protecting the
rights of others.
40
Decisive was thus whether the interferences were necessary in a
democratic society, in essence a question of proportionality. In Ashby Donald the
Court started with some general considerations. It recalled that the right to freedom
of expression is one of the essential foundations of a democratic society and that, as
such, exceptions to that right should be interpreted restrictively, but it also
emphasized the subsidiary role of the Court, considering it must not take the place of
the national courts, but that it must ascertain whether the interference is
proportionate to the aim pursued and whether the justification for the interference is
supported by relevant and sufficient reasons.
41
It emphasized, in both decisions, that
the states’ margin of appreciation was particularly wide, due to a combination of two
factors. First, the motives of the applicants were predominantly commercial, explicitly
adding in Ashby Donald that the expression did not touch on a debate of the general
39
Cf. Decision of the European Court of Human Rights (Fifth Section), in the case of Ashby
Donald and Others v. France, Appl. No. 36769/08, of 10 January 2013, para 34 and Decision
of the European Court of Human Rights (Fifth Section), in the case of Neij and Sunde
Kolmisoppi v. Sweden, Appl. No. 40397/12, of 19 February 2013, Section A.
40
Cf. Decision of the European Court of Human Rights (Fifth Section), in the case of Ashby
Donald and Others v. France, Appl. No. 36769/08, of 10 January 2013, para 36 and Decision
of the European Court of Human Rights (Fifth Section), in the case of Neij and Sunde
Kolmisoppi v. Sweden, Appl. No. 40397/12, of 19 February 2013, Sections B & C.
41
Decision of the European Court of Human Rights (Fifth Section), in the case of Ashby
Donald and Others v. France, Appl. No. 36769/08, of 10 January 2013, para 38.
100
interest and in Neij and Sunde Kolmisoppi that the “[safeguards afforded to the] type
of information at issue … cannot reach the same level as that afforded to political
expression and debate”.
42
Second, the national authorities had to balance two
competing interests which were both protected by the Convention (the right to
freedom of expression versus the right to property).
43
In Ashby Donald the Court
concluded that the French courts had not exceeded its margin of appreciation by
giving precedence to the rights of authors in light of the consideration that the
defendants had knowingly ignored the system of press accreditation put in place to
control the dissemination of the copyright protected works to the public, regardless
whether that system was completely effective.
44
In Neij and Sunde Kolmisoppi the
Court considered that there existed “weighty reasons” for the restriction of the
applicants’ right to freedom of expression and that the Swedish courts had “advanced
relevant and sufficient reasons to consider that the applicants’ activities within the
commercially run [The Pirate Bay] amounted to criminal conduct requiring
appropriate punishment”, reiterating that the conviction concerned only copyright
protected works.
45
Finally, in both cases the ECtHR considered that the sanctions
imposed were not such that they could be considered disproportionate. In Ashby
Donald it concluded that the applicants had adduced no support for the claim that the
sanctions left them financially strangled and that the French judge had duly motivated
its decision. In Neij and Sunde Kolmisoppi it emphasized that the applicants had
taken no action to prevent specific infringements of particular works on their website
when it was brought to their attention by the right holders.
A further decision by the ECtHR concerning the conflict between the enforcement of
copyright and the right to freedom of expression followed in Akdeniz. This case
concerned a blocking order by a Turkish court, requiring Internet access providers to
block access to the websites myspace.com and last.fm because these websites
disseminated copyright protected musical works without authorization. A private user
of these websites initiated proceedings opposing the blocking order, arguing that they
42
In Decision of the European Court of Human Rights (Fifth Section), in the case of Neij and
Sunde Kolmisoppi v. Sweden, Appl. No. 40397/12, of 19 February 2013 the Court did not
explicitly address the commercial nature of expression when considering the scope of the
margin of appreciation, but when it reviewed the decision-making process by the national
authorities it emphasized that The Pirate Bay was “commercially run”.
43
Decision of the European Court of Human Rights (Fifth Section), in the case of Ashby
Donald and Others v. France, Appl. No. 36769/08, of 10 January 2013, paras 39-41 and
Decision of the European Court of Human Rights (Fifth Section), in the case of Neij and Sunde
Kolmisoppi v. Sweden, Appl. No. 40397/12, of 19 February 2013, Section D.
44
Decision of the European Court of Human Rights (Fifth Section), in the case of Ashby
Donald and Others v. France, Appl. No. 36769/08, of 10 January 2013, para 42.
45
Decision of the European Court of Human Rights (Fifth Section), in the case of Neij and
Sunde Kolmisoppi v. Sweden, Appl. No. 40397/12, of 19 February 2013, Section D.
101
constituted a disproportionate interference with his right to receive information. After
having his claim rejected for lack of standing by the national courts he applied to the
ECtHR. Similarly, the ECtHR rejected his application, considering that the applicant
was not a victim within the meaning of article 34 ECHR. Nevertheless, in support of
this finding the Court adduced some arguments resembling an assessment of the
intensity of the interference with the applicant’s right. The Court considered that the
applicant can still access musical works in multiple ways that do not involve copyright
infringement, that the blocking order does not prevent him from engaging in a debate
of general interest and that his use of the website was only passive.
46
Considering the
potential (lack) of collateral effects of the blocking order, the large margin of
appreciation of states to regulate freedom of expression in the commercial domain,
and the fact that the national courts had to balance conflicting interests both protected
by Convention rights, the Court then concluded, somewhat enigmatically, that it was
“not convinced that the present affair raises an important question of the general
interest”.
47
It appears that in this case the Court considered the interference with the
applicant’s right to be so light that it did not rise to the level of conferring upon the
applicant the status of “victim” of a violation of a Convention right.
85. Preliminary evaluation. Before turning to the CJEU and its use of
proportionality analysis, some remarks are in order regarding the ECtHR’s approach
to the conflict between copyright and the right to freedom of expression. After initial
hesitation by the Commission, the Court now clearly recognizes that limitations
imposed on freedom of expression by or as a result of copyright legislation must be
“necessary in a democratic society” and thus proportionate. Nevertheless, in Ashby
Donald and Neij and Sunde Kolmisoppi no independent evaluation of either the
intensity of the interference with the right to freedom of expression or the degree of
fulfilment of the right to property took place. In this regard the Court largely deferred
to the national courts. In fact, the hypothetical degree of interference with the right to
property that would have been created had the national courts ruled in favour of
freedom of expression, was left practically unaddressed. As noted, the Court, in Neij,
simply stated that there were “weighty reasons” for limiting the right to freedom of
expression. As to the degree of interference with the right to freedom of expression,
the Court exclusively focused on the commercial nature of the expression and the lack
of contribution to a debate of the general interest, which in turn also added to the
large degree of deference and restraint. This implies the Court did not consider the
degree of interference particularly severe. As a result, given the apparent low intensity
46
Decision of the European Court of Human Rights (Second Section), in the case of Akdeniz
v. Turkey, Appl. No. 20877/10, of 11 March 2014, paras 25-27.
47
Ibid., para 28 (my translation).
102
of review, the conclusion that the balance struck by the national courts was within
their margin of appreciation was hardly surprising.
The (low) intensity of review exercised by the Court in Ashby Donald has been
criticized. Geiger & Izyumenko have argued in this regard that the Court concluded
too easily that fashion shows are not a matter of general interest.
48
Had it held
differently, it might not have focused so much on the commercial character of the
expression, and instead have exercised the greater scrutiny typically associated with
expression touching on matters of general interest.
49
In fact, the Court said as much
by referring to its decision in Hertel, in which it did exactly that. In that decision, a
commercial expression was nonetheless considered a participation in a debate of
general interest and the limitation was scrutinized accordingly.
50
In a similar vein,
Geiger & Izyumenko suggest that the fact that the press performs an essential function
in democratic society and that the display of photographs was indispensable to
effective reporting on fashion shows, ought to have led greater scrutiny.
51
Although
there is some truth to the latter argument that the form of the expression could (and
perhaps: should) have played a greater role in Ashby Donald, whether fashion shows
are a matter of general interest – and thus whether the press performed its essential
function in this regard, seems a matter of reasonable disagreement.
Of course, the margin of appreciation, insofar as it is determined by reference to the
nature of the information, should not just be based on a simple dichotomous
distinction between issues of general interest and other issues. Ultimately, the margin
of appreciation should be a function of the degree of interference and the intrinsic
importance of the right, of which the nature of information is only one indicative
factor. The question is what it will take for the ECtHR to find a violation of the right
to freedom of expression where copyright is duly enforced in accordance with national
law. It can be presumed that the scrutiny exercised by the Court will be more intense
where it does conclude that a particular expression touches on a debate of general
interest, in particular if it concerns political expression.
52
In such cases, the ECtHR
48
Geiger & Izyumenko 2014, p. 325-327.
49
Ibid., p. 329.
50
See the reference in Decision of the European Court of Human Rights (Fifth Section), in the
case of Ashby Donald and Others v. France, Appl. No. 36769/08, of 10 January 2013, para 39
to Decision of the European Court of Human Rights, in the case of Hertel v. Switzerland, Appl.
no. 25181/94, of 25 Augustus 1998, para 47..
51
Geiger & Izyumenko 2014, p. 335 et seq.
52
Cf. Decision of the European Court of Human Rights (Grand Chamber), in the case of
Mouvement Raëlien Suisse v. Switzerland, Appl. No. 16354/06, of 13 July 2012, para 61,
holding that “[t]he breadth of such a margin of appreciation varies depending on a number of
factors, among which the type of speech at issue is of particular importance. Whilst there is
little scope under Article 10 § 2 of the Convention for restrictions on political speech, a wider
margin of appreciation is generally available to the Contracting States when regulating
103
may already consider that article 10 is violated simply when the national court does
not consider the potential limitation of the right to freedom of expression or whether
or not the expression under consideration contributed to a debate on a matter of
general interest or general concern, meaning the national court has not applied
standards which are “in conformity with the principles embodied in Article 10”.
53
However, it appears that such formalistic shortcomings will not necessarily cause a
violation of article 10 ECHR in cases where there is a cumulation of conflicting rights
(e.g. the right to property vs. the right to freedom of expression) and commercial
expression, leading to a particular wide margin of appreciation.
54
The latter implies
that national courts need not explicitly consider whether enforcement of copyright is
really “necessary in a democratic society” in cases of commercial use.
55
As noted, this
may be different when national courts deal with political expression or even artistic
expression.
4.3 Proportionality and balancing at the Court of Justice
86. Outline. This section examines the use of proportionality analysis and
balancing by the CJEU, both in general and in the context of copyright. It starts with
a general overview of the introduction of the principle of proportionality into EU law,
its application in the course of review of both EU and Member State action, and its
use as a tool to adjudicate on disputes involving fundamental rights (Section 4.3.1). It
then views how the Court has used both proportionality analysis and the concept of
fair balance in copyright cases against this general background (Section 4.3.2).
4.3.1 General observations
87. Historical development. Although article 5(1) TEU now prescribes that
“[t]he use of Union competences is governed by the principles of subsidiarity and
proportionality”,
56
the evaluation of EU action (and that of its predecessors) through
freedom of expression in relation to matters liable to offend intimate personal convictions
within the sphere of morals or, especially, religion. Similarly, States have a broad margin of
appreciation in the regulation of speech in commercial matters or advertising” (references
omitted).
53
E.g. Decision of the European Court of Human Rights (First Section), in the case of OOO
Ivpress and Others v. Russia, Appl. No. 33501/04, 38608/04, 35258/05 and 35618/05, of 22
January 2013, para 79 and Decision of the European Court of Human Rights (First Section),
in the case of Reznik v. Russia, Appl. No. 4977/05, of 4 April 2013, para 51.
54
Cf. Voorhoof 2013, p. 194-195.
55
I therefore disagree with van Deursen & Snijders 2018, p. 1090 when they write that “the
ECtHR [in Ashby Donald] holds that the finding of an interference with Art. 10 ECHR
inevitably requires a balancing test” insofar as they mean to assert that the ECtHR requires
national courts to explicitly consider the conformity with the ECHR every time art. 10 will be
interfered with as a result of the enforcement of copyright.
56
An early explicit allusion to proportionality was made in the Treaty of Maastricht, which
added an article 3b to the Treaty establishing the European Economic Community that stated
104
the application of the principle of proportionality far predates its explicit inclusion in
the treaties. The (at the time) Community courts considered that the proportionality
principle, together with other principles of administrative law, was implied in the
Treaties.
57
The Court of Justice alluded to proportionality as early as 1956,
58
and
applied the concept for the first time in 1971.
59
Almost five decades later, its use of the
principle is well-developed. It consists of the three sub-tests of suitability, necessity
and proportionality stricto sensu elaborated above. Although the CJEU does not
always cleanly distinguish between the different tests,
60
a paradigmatic example in
which it does make the distinction can be found in the judgement of the Grand
Chamber in Sky Österreich.
61
At issue was the question whether the obligation for
exclusive licensees of broadcasting rights to authorise other broadcasters to make
short news reports on events of high interest to the public, without a right to
compensation beyond the costs to provide access, infringed the freedom to conduct a
business.
62
This obligation was created by the Audiovisual Media Services Directive
63
in the interest of the right to freedom to receive information and media plurality.
Having found an interference with the freedom to conduct a business, the Court
considered first that the interference was appropriate (suitable).
64
Second, it
considered the measure necessary. A less restrictive measure, consisting in a
remuneration beyond the mere cost of access, would not achieve the pursued objective
as effectively.
65
Finally, the Court considered the proportionality in the narrow sense,
pointing out that “the assessment of the possible disproportionate nature of a
provision of European Union law must be carried out with a view to reconciling the
that “[a]ny action by the Community shall not go beyond what is necessary to achieve the
objectives of this Treaty”.
57
Cf. Craig 2004, p. 338.
58
In Case 8/55 Fédération Charbonnière de Belgique v High Authority of the European Coal
and Steel Community ECLI:EU:C:1956:11, ECR 1954-1965, p. 299 the Court noted that the
“reaction by the high authority to illegal action on the part of the undertakings must be in
proportion to the scale of that action”.
59
Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für
Getreide und Futtermittel ECLI:EU:C:1970:114.
60
Cf. Tridimas 2006, p. 139, who points out that the Court typically does not distinguish
between necessity and proportionality in the strict sense and Sauter 2013, p. 9-10, who
similarly argues that the Court often conflates the necessity and proportionality stricto sensu
tests.
61
Other examples are Case C-101/12 Schaible ECLI:EU:C:2013:661, paras 36-74 and Case C-
547/14 Philip Morris Brands and Others ECLI:EU:C:2016:325, paras 154-161.
62
Case C-283/11 Sky Österreich ECLI:EU:C:2013:28. Similarly, the Court was asked whether
the obligation violated the right to property. As regards this complaint the Court ruled that
there was no interference with the right to begin with, so there was no need for any
proportionality assessment. On this, see also, infra, § 128.
63
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on
the coordination of certain provisions laid down by law, regulation or administrative action in
Member States concerning the provision of audiovisual media services.
64
Case C-283/11 Sky Österreich ECLI:EU:C:2013:28, para 53.
65
Ibid. paras 54-57. Cf. on this, supra, § 60.
105
requirements of the protection of those different rights and freedoms and a fair
balance between them”.
66
It held that, given the importance of safeguarding the right
to freedom of information and media pluralism and the precise limits imposed on the
freedom to conduct a business, the rule in the Directive was not disproportionate.
67
88. EU action. When used as a general principle to determine the lawfulness of
EU action, the application of the principle of proportionality is characterized by
considerable degree of deference and restraint on the part of the CJEU. In policy
matters involving “political, economic and social choices and in which [the EU
legislature] is called upon to undertake complex assessments and evaluations”, the
Court will typically merely ascertain whether the choice made was not “manifestly
disproportionate” given the information available at the time.
68
This reluctance to
second guess policy choices made by the EU legislature is fuelled in part because the
future effects of a measure cannot always be accurately foreseen.
69
In that same vein,
when a measure seeks to protect an interest or rights that is regarded as being of
particular importance such as the need to protect human health, the CJEU will not
readily interfere. Thus, in spite uncertainty surrounding certain health risks of
particular substances, “protective measures may be taken without having to wait until
the reality and seriousness of those risks become fully apparent”.
70
89. Member State action. Member State action, often in the form of a
restriction of one of the four freedoms, is typically the subject of stricter scrutiny than
EU action. The reason for this is the particular status of the four freedoms as “central
to the very idea of market integration that lies at the economic heart of the EU”.
71
Nevertheless, the standard typically formulated by the CJEU when reviewing
restrictions of the four freedoms is that the Member State action “should be
appropriate for ensuring the attainment of the objective in question and not go
beyond what is necessary to attain that objective”.
72
This implies a large degree of
66
Ibid., para 60.
67
Ibid., paras 58-66.
68
E.g. Case C-58/08 Vodafone and Others ECLI:EU:C:2010:321, para 52. Sometimes the
standard formulated by the CJEU is that of “manifestly inappropriate” instead of “manifestly
disproportionate”, but nevertheless applied as an overall standard specifying the intensity of
review, even though “appropriate” is also used by the Court as a synonym for “suitability”. For
an example of terminological consistency, see Case C-547/14 Philip Morris Brands and Others
ECLI:EU:C:2016:325, paras 170-190 in which the Court uses the standard of “manifestly
inappropriate”, “go manifestly beyond what is necessary to achieve the objective sought”, and
“manifestly disproportionate” in the context of suitability, necessity and proportionality
stricto sensu, respectively.
69
Cf. e.g. Case C-280/93 Federal Republic of Germany v Council of the European Union
ECLI:EU:C:1994:367, paras 89-90.
70
Case C-157/14 Neptune Distribution ECLI:EU:C:2015:823, para 81.
71
Craig & de Búrca 2015, p. 557.
72
E.g. Case C-201/15 AGET Iraklis ECLI:EU:C:2016:972, para 61.
106
restraint, as in that it suggest that any “necessary” measure is deemed acceptable,
regardless whether it imposes great burdens against only minimal gains. However, in
these cases the CJEU often appears to work with a broader concept of “necessity”, in
that it will also consider alternatives which may be less effective at achieving the aim
pursued.
73
Comparing such alternatives is, more properly conceived, an issue of
balancing.
74
Often the CJEU will thus combine questions of necessity and
proportionality stricto sensu.
75
Certain factors will cause the CJEU to be more lenient
in its review, again all relatable to those identified in Section 3.2. For instance, the
CJEU has permitted Member State measures interfering with free movement to
safeguard that Member State’s own values regardless whether that value is accorded
the same weight and scope in the rest of the EU.
76
In other instances, the CJEU has
granted Member States discretion to protect human health in light of the empirical
uncertainty concerning the risks of a particular substance, or to determine the
appropriate level of protection or fulfilment of another fundamental value, such as
press diversity or freedom of expression.
77
90. Interferences with fundamental rights. At the same time, scrutiny of
both EU and Member State action will also be more intense when it interferes with a
fundamental right, although it does appear that the intensity of review is variable,
depending on (the intrinsic importance of) the right involved. The Union courts
73
Cf. Case 40/82 Commission v the United Kingdom ECLI:EU:C:1984:33, para 14 et seq. in
which the Court rejected as disproportionate a blanket import ban on poultry to prevent the
spreading of a contagious disease, noting the low risk of infection and the fact that the UK was
free to carry out controls and to introduce import restrictions “where necessary”, although
such measures surely would be less effective at achieving the aim pursued. Similarly, in Case
C-112/00 Schmidberger ECLI:EU:C:2003:333 the Court considered that Austria was
permitted to authorize a demonstration on a motorway that limited intra-Community trade
since the aim could not have been achieved through less restrictive measures, noting that
national authorities “must balance that interest [in free movement] with that of the
demonstrators” (para 90).
74
Cf., supra, § 60-61.
75
Cf. Craig 2004, p. 342 and Harbo 2015, p. 38. On some occasions the Court has explicitly
formulated a proportionality stricto sensu test. See, e.g., Case C-169/91 Council of the City of
Stoke-on-Trent and Norwich City Council v. B & Q Plc ECLI:EU:C:1992:519, paras 15-16.
76
E.g. Case C-36/02 Omega ECLI:EU:C:2004:614. This is a form of cultural discretion. Cf.,
supra, Chapter 3, n 41 and accompanying text.
77
Cf. Case C-368/95 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Bauer
Verlag ECLI:EU:C:1997:325 in which the Court considered restrictions placed on the free
movement of goods by a rule of Austrian law that prohibited the sale of periodicals containing
prize puzzle competitions in order to protect press diversity, limiting its assessment to
formulating certain conditions to help determine whether less restrictive means were available
and Case C-112/00 Schmidberger ECLI:EU:C:2003:333 in which the Court considered that
the Austrian national authorities were “reasonably entitled, having regard to the wide
discretion which must be accorded to them in the matter, to consider” that the aim of a
demonstration on a public motorway intended to draw attention to the environmental and
public health effects of the increased traffic on that motorway could not be achieved by a
measure “less restrictive of intra-Community trade” (para 93).
107
carried out human rights scrutiny long before the adoption of the EU Charter, the
EU’s catalogue of fundamental rights. The CJEU, in its seminal judgment in
Internationale Handelsgesellschaft, recognized fundamental rights as general
principles of law, drawing inspiration from the constitutional traditions common to
the Member States.
78
In Nold, the Court famously added that also international
conventions “on which the Member states have collaborated” such as the ECHR “can
supply guidelines which should be followed within the framework of Community
law”.
79
Eventually it was in the context of fundamental rights adjudication that the
Court started to make more frequent use of the concept of “fair balance” in the context
of proportionality analysis.
80
Highlighting the “migration” of this concept from
Strasbourg to Luxembourg, the CJEU in Connolly v Commission emphasized the
“special significance” of the ECHR before eventually considering that it had to decide
“whether a fair balance has been struck”, in this case between the right to freedom of
expression of a Commission official and the Commission’s interest that its officials
observe their “duties and responsibilities”.
81
It should be noted that although the
Court often refers to the concept of “fair balance” when discussing proportionality in
the narrow sense, in other instances it has referred to fair balance as the overarching
concept containing all the elements of proportionality.
82
This supports a tentative
conclusion that for the CJEU, perhaps more so than for the ECtHR, the concept of fair
balance refers to a three-tiered proportionality analysis, at least insofar as that
concept is used to ascertain compliance of certain measures with fundamental rights.
One should be again hesitant to assume that this concept constitutes a reference to
any substantive conception of fairness. Just like the ECtHR started by referring to a
concept of “just” balance,
83
the CJEU has also been inconsistent in its use of
terminology. In addition to fair balance it has also referred to a “proper balance” or
78
Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für
Getreide und Futtermittel ECLI:EU:C:1970:114, para 4. See also the judgement in Case 29/69
Stauder v Stadt Uhm ECLI:EU:C:1969:57, para 7, delivered one year prior, in which the CJEU
already alluded to “the fundamental human rights enshrined in the general principles of
Community law and protected by the Court”.
79
Case 4/73 Nold KG v Commission ECLI:EU:C:1974:51, paras 12-13.
80
Earlier, the concept was predominantly referred to in competition cases, in the context of
determining the appropriateness of measures imposed on private undertakings. Cf. e.g. the
series of judgements in the cases T-1/89 through T-15/89.
81
Case C-275/99 P Connolly v Commission ECLI:EU:C:2001:127, paras 37 & 48.
82
E.g. Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert
ECLI:EU:C:2010:662, para 77 et seq. in which the Court discussed necessity in the context of
balancing. Similarly, see Case C-544/10 Deutsches Weintor ECLI:EU:C:2012:526, para 47 et
seq., Case C-157/14 Neptune Distribution ECLI:EU:C:2015:823, para 75 et seq., Case C-547/14
Philip Morris Brands and Others ECLI:EU:C:2016:325, para 154 et seq.
83
Cf., supra, § 80
108
sometimes simply to a “balance”.
84
All these terms seem to refer to the same concept:
a balancing (or: proportionality) exercise intended to ensure a proper reconciliation
of different interests in which the detriment caused to one principle may not outweigh
the gains to another.
Before the (variable) intensity of review of measures that restrict fundamental rights
is explored in more detail, it is important to point to article 52(1) of the EU Charter,
which contains a general limitation clause in respect of all Charter rights.
85
This article
provides that:
“Any limitation on the exercise of the rights and freedoms recognised by this Charter
must be provided for by law and respect the essence of those rights and freedoms.
Subject to the principle of proportionality, limitations may be made only if they are
necessary and genuinely meet objectives of general interest recognised by the Union
or the need to protect the rights and freedoms of others.”
This provision thus positivizes the proportionality requirement. It is important to
note that article 52 not only requires that limitations be proportionate, but also that
they respect the “essence” of rights. The Explanations to the Charter unfortunately do
not offer any explanation concerning the concept of essence, other than noting that it
is based on the case law of the CJEU where it considered that restrictions on
fundamental rights may not constitute a “disproportionate and unreasonable
interference undermining the very substance of those rights”.
86
The concept appears
to be reflective of the idea that rights have an independently identifiable inviolable
core, which may never be intruded upon. The utility of the idea that this essence can
be independently identified and applied outside of and prior to proportionality
analysis is heavily contested. Critics of this so-called absolute theory contend that it is
incapable of identifying the content of this core without reference to other rights and
interests, meaning it ultimately has little independent value. Insofar as one can
identify positions of which one can say with great conviction that they can never be
intruded upon, this can just as well be conceptualized in terms of proportionality,
meaning that certain interferences are so serious that it is difficult to conceive of
countervailing reasons capable of outweighing it.
87
It is also questionable whether the
84
See Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert
ECLI:EU:C:2010:662, paras 79 and 83, Case C-283/11 Sky Österreich ECLI:EU:C:2013:28,
para 59 and Case C-101/12 Schaible ECLI:EU:C:2013:661, para 60.
85
Some charter rights, such as those in art. 8 (protection of personal data) and art. 17 (right to
property) also include their own limitation clauses. The relationship between these and the
one in art. 52 is unclear. See, to that effect, Stothers & Oliver 2017, p. 536.
86
Explanations relating to the Charter of Fundamental Rights (OJ 2007/C 303/02),
explanation on article 52.
87
Cf. Alexy 2002, p. 192-196, Barak 2012, p. 497-498, Rivers 2006, p. 184-187, van der Schyff
2008, p. 133 et seq. and Tridimas & Gentile 2019, p. 804. For a recent defence of the absolute
theory, e.g. Brkan 2018.
109
CJEU initially used the concept as an independent requirement, as will illustrated
below.
In Nold the CJEU noted that the right to property and the freedom to “choose and
practice their trade or profession" may be limited if “justified by the overall objectives
pursued by the Community, on condition that the substance of these rights is left
untouched”.
88
In Hauer it reformulated this test, holding that a limitation of the right
to property may not constitute “a disproportionate and intolerable interference with
the rights of the owner, impinging upon the very substance of the right to property”.
89
Formulated this way, the “very substance” is connected to the principle of
proportionality. It is likely that the notion of “very substance” was intended as laying
a standard of review, reflecting a large degree of restraint. In this regard it is
noteworthy that it was the German government, in its written observations, which
suggested this standard, noted that an interference with right to property should not
constitute an “excessive burden”.
90
This is evidenced by the subsequent examination
of the Court, which considered that the measure at issue did not create an “undue
limitation upon the exercise of the right to property” and therefore concluded that it
did “not infringe the substance of the right to property”.
91
Also in subsequent cases,
the Court appeared to treat the “very substance” requirement as part of the
proportionality analysis.
92
In some other, later cases, however, the Court started to
separate a “very substance” test from the proportionality analysis.
93
It may have done
so in an attempt to differentiate between, on the one hand, the assessment of the
interference with the right to property and the freedom to pursue a trade and, on the
other hand, the general application of proportionality analysis as it had developed it
prior to its starting to evaluate the validity of Community action in light of
fundamental rights. Although, as suggested above, this distinction between an
“inviolable core” and proportionality analysis could be viewed as unnecessary, fact is
that in its more recent case law has held on to this approach.
94
The CJEU’s use of
88
Case 4/73 Nold KG v Commission ECLI:EU:C:1974:51, para 14.
89
Case 44/79 Hauer v Land Rheinland-Pfalz ECLI:EU:C:1979:290, para 23.
90
Cf. also Oliver & Stothers 2017, p. 539, n 128, who have compared the formulation of the
Court to the “individual and excessive burden” standard applied by the ECtHR.
91
Case 44/79 Hauer v Land Rheinland-Pfalz ECLI:EU:C:1979:290, paras 29-30.
92
E.g. Case 265/87 Schräder HS Kraftfutter ECLI:EU:C:1989:303, para 18, Case 5/80
Wachauf ECLI:EU:C:1989:321, paras 18-23 and Joined Cases C-143/88 and C-92/89
Zuckerfabrik Süderdithmarschen ECLI:EU:C:1991:65, paras 26-27.
93
Case C-177/90 Kühn ECLI:EU:C:1992:2, paras 17-18, Case C-280/93 Germany v Council
ECLI:EU:C:1994:367, paras 81-98, Case C-306/93 SMW Winzersekt ECLI:EU:C:1994:407,
paras 24-28, Case C-22/94 Irish Farmers Association and Others ECLI:EU:C:1997:187, paras
26-31 and Case C-44/94 Fishermen’s Organizations ECLI:EU:C:1995:325, paras 55-59.
94
Notably, in Case C-426/11 Alemo-Herron and Others ECLI:EU:C:2013:521 the CJEU
rejected a particular interpretation of EU law as violating the essence of the freedom to conduct
a business.
110
concept of essence will be criticized later, after having discussed its use by the CJEU
in cases concerning copyright.
95
When reviewing measures interfering with the freedom to pursue a trade or
profession/conduct a business and the right to property (now laid down in articles 15
and 16, and article 17 EU Charter, respectively), on which the case law of the Court is
relatively abundant, the CJEU grants the EU legislature a reasonably wide margin of
discretion. One can distinguish two strategies by which it achieves this. The first is
limiting its analysis to the question whether the essence or (very) substance of a right
is impaired by the measure.
96
The second strategy is emphasizing the broad discretion
the legislature necessarily has when it must make political, economic or social choices,
and limiting the enquiry to whether the action is based on manifest error or is
manifestly disproportionate.
97
Nevertheless, despite this broad margin of discretion,
when it comes to limitations of the freedom to conduct a business and the right to
property, the Court has at times been willing to conduct a thorough analysis of all
three prongs of proportionality,
98
although it has been reluctant to find an
infringement of those rights.
99
It is questionable whether the consideration that a certain matter involves choices of
a political, economic or social nature should indiscriminately lead to a broad
discretion, for instance by applying the manifestly disproportionate standard,
irrespective of the right concerned. After all, almost every EU action will involve such
choices. Nevertheless, in Neptune Distribution, concerning a prohibition of certain
health claims on the labelling and advertising of natural mineral waters, the Court
considered the proportionality of the interference with the freedom to conduct a
business and the right to freedom of expression together and concluded
simultaneously in regard to both that the legislature had a broad discretion in the
matter at hand.
100
However, in Philip Morris, decided one year later, which concerned
a largely similar issue, that is a ban of certain information on the labelling and
95
See, infra, Section 4.4.1.
96
Cf., recently, Case C-544/10 Deutsches Weintor ECLI:EU:C:2012:526, paras 54-59.
97
Case C-101/12 Schaible ECLI:EU:C:2013:661, para 47 et seq. and Case C-547/14 Philip
Morris Brands and Others ECLI:EU:C:2016:325, para 166 et seq. Cf. also Case C-157/14
Neptune Distribution ECLI:EU:C:2015:823, para 76, in which the Court similarly stresses the
broad discretion of the EU legislature, but makes no express reference to the manifestly
disproportionate standard.
98
See, in particular, Case C-283/11 Sky Österreich ECLI:EU:C:2013:28, paras 53-66, Case C-
101/12 Schaible ECLI:EU:C:2013:661, paras 52-75 and Case C-547/14 Philip Morris Brands
and Others ECLI:EU:C:2016:325, paras 170-190.
99
Tridimas 2006, p. 315 notes that “[w]here Community legislation seriously threatens such
rights the Court prefers to address the claim on different grounds such as breach of the
principle of equality … or of the protection of legitimate expectations”.
100
Case C-157/14 Neptune Distribution ECLI:EU:C:2015:823, para 76.
111
packaging of tobacco products, the CJEU separated both enquiries. In regard to the
right to freedom of expression the Court noted that “the discretion enjoyed by the EU
legislature, in determining the balance to be struck, varies for each of the goals
justifying restrictions on that freedom and depends on the nature of the activities in
question”.
101
The Court nevertheless appeared to take an understandably deferential
position, pointing to both the fact that the expression was of a commercial nature and
(implicitly) the importance of health protection, the aim pursued.
102
The Court carried
out a separate proportionality assessment of the “negative economic consequences for
certain operators”,
103
eschewing an explicit reference to the freedom to conduct a
business, and applied the more exacting manifestly inappropriate/disproportionate
standard.
104
Appropriately, the CJEU has conducted a more intensive proportionality
analysis in several cases (principally) concerning an interference with the right to
respect for private and family life and to protection of personal data.
105
Applying a
strict necessity test, the Court has struck down various EU measures for breach of
those rights. Interestingly, in two of those decisions, Schecke and Schrems, the Court
found that the EU institutions had acted outside the margins imposed by
proportionality on procedural grounds. In Schecke the Council and Commission had
failed to consider the existence of less restrictive but equally effective measures, even
though such measures could be envisaged, and therefore not properly balanced the
aim pursued against the rights affected.
106
In Schrems, the Commission had adopted
a Decision designating the protection of personal data in the USA as adequate without
considering whether the interference with the right to protection of personal data was
limited to the extent strictly necessary, leading the Court to invalidate the Decision.
107
In Digital Rights Ireland, which concerned the validity of Directive 2006/24/EC,
108
the CJEU specified, in general, that the degree of the legislature’s discretion depends
101
Case C-547/14 Philip Morris Brands and Others ECLI:EU:C:2016:325, para 155.
102
Ibid., paras 155-156.
103
Ibid., para 185.
104
Ibid., para 166. The AG did explicitly assess the interference with the freedom to conduct a
business, as an interference with “negative economic consequences for certain operators” can
be construed without difficulty (Opinion of AG Kokott in Case Case C-547/14 Philip Morris
Brands and Others ECLI:EU:C:2015:853, paras 148 et seq.).
105
See, principally, Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert
ECLI:EU:C:2010:662, Joined Cases C-293/12 and C-594/12 Digital Rights Ireland
ECLI:EU:C:2014:238, Case C-362/14 Maximillian Schrems v Data Protection Commissioner
ECLI:EU:C:2015:650 and Case C-203/15 Tele 2 Sverige ECLI:EU:C:2016:970.
106
Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert
ECLI:EU:C:2010:662, paras 78-86.
107
Case C-362/14 Maximillian Schrems v Data Protection Commissioner
ECLI:EU:C:2015:650, in particular paras 96-97.
108
Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on
the retention of data generated or processed in connection with the provision of publicly
available electronic communications services or of public communications networks and
amending Directive 2002/58/EC (OJ 2006 L 105, p. 54).
112
on precisely those factors identified in Section 3.2, such as, “in particular, the area
concerned, the nature of the right at issue guaranteed by the Charter, the nature and
seriousness of the interference and the object pursued by the interference”.
109
In the
case at hand, the importance of the rights concerned and the “extent and seriousness
of the interference” meant the “legislature’s discretion is reduced, with the result that
review of that discretion should be strict”.
110
91. CJEU review in short. In reviewing EU and Member State Action the CJEU
thus requires the measures adopted to be suitable, necessary and proportionate
stricto sensu, in addition to respecting the essence of rights. The intensity of review
applied is flexible. The Court has mitigated its traditional approach of granting the EU
legislature a (very) broad discretion in political, economic and social matters in cases
concerning fundamental rights limitations, although the intensity of its review
depends on the particular rights affected. The Court appears more lenient in regard
to limitations of the right to property and the freedom to conduct a business. This
implies it assigns a lower intrinsic importance to those rights than for instance to the
right to freedom of expression and, particularly, the right to respect for private and
family life. It has nevertheless been suggested that the Court may apply the more
lenient manifestly disproportionate standard if the EU legislature has to strike a
balance between two fundamental rights.
111
This argument is largely based on the
more relaxed scrutiny the Court appeared to apply in Sky Österreich, discussed
above,
112
and in Schaible, concerning certain obligations imposed on farmers in an
attempt to curb foot-and-mouth disease and in which the CJEU applied the manifestly
erroneous standard.
113
Another explanation for the more relaxed review, may be the
fact that those cases concerned limitations of the freedom to conduct a business in the
interest of values with an arguably greater intrinsic importance, that is the right to
freedom of information and press plurality (Sky Österreich) and the protection of
health (Schaible).
92. Optimization balancing and horizontal effect. Finally, it must be
recalled that balancing in the first place is a process geared towards establishing a
priority between different principles. It is principally in the context of review of norms
established by others that a court must typically exercise deference and restraint when
considering if the balance struck is appropriate. On occasion, balancing is also used,
not in the context of review of legislative measures, but in order to (further) define the
109
Joined Cases C-293/12 and C-594/12 Digital Rights Ireland ECLI:EU:C:2014:238, para 47.
110
Ibid., para 48.
111
Anagnostaras 2014, p. 117 et seq.
112
See, supra, § 87.
113
Case C-101/12 Schaible ECLI:EU:C:2013:661, para 47 et seq.
113
rights and obligations flowing from EU law. Where this balancing concerns
fundamental rights, this is typically a form of indirect (horizontal) effect: norms that
govern the rights and obligations of individuals are interpreted in light of the
fundamental rights obligations of the state (or, as the case may be, the EU). The most
notorious occurrence within the context of EU law outside copyright law is probably
the CJEU’s judgement in Google Spain, in which the Court held that “a fair balance
should be sought” between the legitimate interest of Internet users in having access
to personal data of others processed by a search engine and the right to respect for
private and family life in determining whether the subject of that personal data can
require its removal from the list of search results displayed.
114
In such cases the
question is thus not one of review, but which right (or in this case “legitimate interest”)
has priority over the other. It must be noted that this decision has not been free from
criticism. Specifically, the Court has been criticized for essentially devolving the task
of striking a fair balance onto operators of search engines, creating a substantial risk
of private censorship.
115
It was in part for this reason, and the associated interference
with the right to freedom of information, that AG Jääskinen had concluded that no
general right to “be forgotten” ought to be recognized.
116
It is this type of balancing in
the context of the interpretation of private law norms which plays an important role
in the CJEU’s copyright case law, as will be demonstrated in the following section.
4.3.2 The CJEU, copyright, and proportionality
93. Outline. The use by the CJEU of proportionality analysis and balancing
(rhetoric) in copyright cases has a long history. It was first used in cases in which the
Court was asked whether, in the circumstances in question, (the exercise of)
117
copyright conflicted with the provisions on free movement of goods and services. This
led the CJEU to define the essential characteristics of copyright, the so-called “specific
114
Case C-131/12 Google Spain and Google ECLI:EU:C:2014:317, para 81.
115
E.g. Frantziou 2014, p. 769-770.
116
Opinion of AG Jääskinen in Case C-131/12 Google Spain and Google ECLI:EU:C:2013:424,
para 133.
117
In several cases, starting with Case 56/64 Consten and Grundig v Commission of the EEC
ECLI:EU:C:1966:41, the Court of Justice stressed that the Community law did not affect the
existence of intellectual property rights, but only their exercise. This distinction is not
altogether helpful because, as pointed out by many commentators, a right that cannot be
exercised is in effect non-existent. See concerning this discussion Tritton et al. 2008, paras 7-
011-012. Since the existence versus exercise doctrine is in essence an expression of the “same
conceptual approach”, having “no independent significance for resolving specific questions of
delimitation”, as the specific subject-matter doctrine, to be discussed in the following sub-
section, I will not separately discuss the existence versus exercise doctrine (Opinion of AG
Gulmann in Joined Cases C-241/91 P and C-242/91 P Magill ECLI:EU:C:1994:210, para 31,
also pointing out that “an exercise of rights that falls within the specific subject-matter of an
intellectual property right will relate to its existence”).
114
subject-matter”, that as a rule justify an incursion on free movement.
118
This case law
will be explored first (Section 4.3.2.1). Next, I discuss the two cases in which the CJEU
was asked to determine the validity of two acts of EU legislation in light of, inter alia,
an alleged fundamental rights violation (Section 4.3.2.2) and the use of balancing in
the course of interpretation of the acquis communautaire on copyright (Section
4.3.2.3).
4.3.2.1 Free movement and copyright
94. Specific subject-matter. Article 34 TFEU (formerly art. 30 EEC and art.
28 EC) prohibits quantitative restrictions on imports and measures having equivalent
effect. Similarly, art. 56 TFEU (formerly art. 59 EEC and art. 49 EC) prohibits inter-
Member State restrictions on services. Nevertheless, article 36 TFEU (formerly art.
36 EEC and art. 30 EC), which can be mutatis mutandis applied to the freedom to
provide services, specifies that the provisions on free movement of goods “shall not
preclude prohibitions or restrictions on imports, exports or goods in transit justified
on grounds of … the protection of industrial and commercial property”.
Against this background, as well as that of competition law, the CJEU has defined
what it calls the “specific subject-matter” of copyright (and intellectual property rights
more generally). In its 1972 decision Deutsche Grammophon v Metro it held that
limitations on the free movement on grounds of “protection of industrial and
commercial property” are allowed “to the extent to which they are justified for the
purpose of safeguarding rights which constitute the specific subject-matter [of that
property]”.
119
In subsequent decisions the Court further clarified the content of this
specific subject-matter.
In Phil Collins the Court gave a general characterization of the specific subject-matter.
It noted that the specific subject-matter “is to ensure the protection of the moral and
economic rights of their holders”. As to moral rights the specific subject-matter
included “in particular, [the right] to object to any distortion, mutilation or other
modification of a work which would be prejudicial to their honour or reputation”. The
economic component of the specific subject-matter of copyright “confer[s] the right
to exploit commercially the marketing of the protected work, particularly in the form
of licences granted in return for payment of royalties”.
120
This “right to exploit
118
Cf. Husovec 2016, p. 266.
119
Case 78/70 Deutsche Grammophon v Metro ECLI:EU:C:1971:59, para 11.
120
Joined Cases C-92/92 and C-326/92 Phil Collins and Others ECLI:EU:C:1993:847, para
20. In Case 158/86 Warner Brothers v Christiansen ECLI:EU:C:1988:242 prior to its decision
in Phil Collins, the Court had put it as follows: “[L]iterary and artistic works may be the subject
of commercial exploitation, whether by way of public performance or of the reproduction and
marketing of the recordings made of them … The two essential rights of the author, namely
115
commercially” has been concretized on other occasions, both prior and subsequent to
Phil Collins.
95. Exhaustion. First, the specific subject-matter includes the right to consent
to the first marketing of a copy of the work (or other copyright protected subject-
matter) within the Union (and the EC and EEC before it).
121
This right was delimited
in a number of cases. From Deutsche Grammophon itself it follows that the right to
object to the importation or sale of a copy of the work
122
is not part of the specific
subject-matter if that copy has been placed on the market by the right holder or with
their consent in another Member State.
123
In Musik-Vertrieb Membran v GEMA it
was clarified that this is not even the case if the copies are placed on the market in a
Member State with a de facto fixed royalty rate that is lower than the royalty rate in
the Member State of importation.
124
By contrast, where those copies are lawfully
placed on the market without their consent in the Member State of exportation, due
to the term of protection already having expired in that Member State, the exercise of
the exclusive distribution right in the Member State of importation does not violate
the provisions on the free movement of goods.
125
However, in Merck v Stephar, a
patent case, the Court found that where the product has been placed on the market by
or with consent of the patent holder in a Member State where patent protection was
not available, the patent holder cannot object to the subsequent importation of those
products into another Member State.
126
Consent thus became the nucleus around
which the right to distribute copies was erected, forming part of the specific subject-
matter.
127
96. Limits to exhaustion. Second, the specific subject-matter comprises the
right to authorize independent and repeatable acts of exploitation of the work, which
by their nature give rise to an individual stream of revenue that cannot be (at least
partly) appropriated by the right holder when they place an individual copy on the
market. This rule can be inferred from a number of cases. In Coditel I the Court was
confronted with the question whether the right holder (or their assignee) could
prevent the retransmission of a film broadcast in another Member State. The Court
the exclusive right of performance and the exclusive right of reproduction, are not called in
question by the rules of the Treaty” (para 16).
121
Strictly speaking, this applies to also to Iceland, Liechtenstein and Norway, members of the
European Economic Area.
122
Or the embodiment of subject-matter protected by a related right.
123
Case 78/70 Deutsche Grammophon v Metro ECLI:EU:C:1971:59.
124
Joined Cases 55 and 57/80 Musik-Vertrieb Membran v GEMA ECLI:EU:C:1981:10.
125
Case 341/87 EMI Electrola v Patricia ECLI:EU:C:1989:30.
126
Case 187/80 Merck v Stephar and Exler ECLI:EU:C:1981:180.
127
It must be noted that this case law developed before harmonization of the distribution right.
On the latter see, supra, § 44-46.
116
pointed to the particular nature of the work, a film, which is typically exploited by
repeat performances. The Court emphasized that under such circumstances the right
holder has a legitimate interest in obtaining a remuneration based on the actual or
probable number of performances, the right to require a fee for every single
performance being a part of the “essential function” of copyright.
128
Moreover, in
Basset v SACEM the Court stated that charging a fee for the performance of a work is
allowed, even if it restricts the free movement of goods “inasmuch as it must be
regarded as a normal exploitation of copyright and does not constitute a means of
arbitrary discrimination or a disguised restriction”.
129
Similar considerations featured in decisions concerning the rental right. In Warner
Brothers v Christiansen the Court was confronted with the question whether a right
holder could enforce their exclusive rental right against a commercial establishment
that rented out copies that had been imported from a different Member State that did
not grant authors such a right. The Court pointed to the emergence of the rental
market as a new form of exploitation of works, which reached a distinct public and
constitutes an important source of potential revenue, and noted that the right holder
would be unable to be remunerated for every hiring out of their works if their control
extended only to the initial sale. The granting of a rental right was therefore “clearly
justified on grounds of the protection of industrial and commercial property”.
130
97. A definition of the specific subject-matter. The essential (economic)
element of the specific subject-matter can be defined as follows: the right to authorize
independent and repeatable acts of exploitation, whether the initial marketing of a
copy or another independent and repeatable act of exploitation, allowing the author
128
Case 62/79 Coditel v Ciné Vog ECLI:EU:C:1980:84, para 13-14. See also Case 395/87
Tournier ECLI:EU:C:1989:319, paras 12-13. In his Opinion in Joined Cases C-241/91 P and C-
242/91 P Magill ECLI:EU:C:1994:210 AG Gulmann pointed out that the term “essential
function” used by the Court in Coditel I is an unfortunate one and that, in fact, the right
described by the Court is instead part of the specific subject-matter of copyright, the essential
function of copyright being to reward creative effort (by way of granting the rights that
constitute the specific subject-matter (para 60, n 47).
129
Case 402/85 Basset v SACEM ECLI:EU:C:1987:197, para 16.
130
Case 158/86 Warner Brothers v Christiansen ECLI:EU:C:1988:242, para 14-16. See for
similar considerations also Case C-200/96 Metronome Musik v Music Point Hokamp
ECLI:EU:C:1998:172, para 16; Case C-61/97 FDV v Laserdisken ECLI:EU:C:1998:422, para 14
and, in regard to public lending, Case C-53/05 Commission v Portugal ECLI:EU:C:2006:448,
para 34.
117
or related right holder to obtain a reward
131
in the form of remuneration.
132
This
explains the difference in treatment between the resale of a copy placed on the market
by the right holder and, for instance, the exploitation by way of renting out that same
copy. By selling that copy the right holder has already obtained a remuneration for
that copy. A resale by the initial buyer is not an independent and repeatable act of
exploitation that the right holder should be able to control. Of course, the copy can be
sold multiple times, but only once by each buyer. Moreover, the value of these
downstream sales can already be incorporated into the original price.
133
Arguably this
is different with regard to rental due to its repetitive nature and the fact that only a
small number of copies placed on the market will be intended for rental. Effective
contractual restrictions imposed upon the buyer also seem illusory, since this would
not prevent a buyer who purchases on the second-hand market from renting out their
copy, making effective price discrimination and ensuring remuneration for every
repeated act of exploitation impossible.
134
131
The ultimate foundation of the specific subject-matter is to ensure a reward for creative
effort. Although this has not been said with so many words by the Court in relation to
copyright, it has been emphasized time and again by the Court in connection with the specific
subject-matter of patents. See, e.g., Merck v Case 187/80 Merck v Stephar and Exler
ECLI:EU:C:1981:180, para 10: “That right of first placing a product on the market enables the
inventor, by allowing him a monopoly in exploiting his product, to obtain the reward for his
creative effort without, however, guaranteeing that he will obtain such a reward in all
circumstances.” As stated by AG Gulmann in his Opinion in Joined Cases C-241/91 P and C-
242/91 P Magill ECLI:EU:C:1994:210, para 71, n 49: “[T]here is no reason for treating
copyright differently in this respect.” See also the decisions by the Court of First Instance in
the Magill case: Case T-69/89 RTE v Commission ECLI:EU:T:1991:39, para 71 and Case T-
76/89 ITP v Commission ECLI:EU:T:1991:41, para 56.
132
It must be pointed out that, in particular in its early case law, much of the references by the
Court to the nature of (commercial) exploitation were made in the context of the question
whether copyright was covered by the concept “commercial and industrial property” in article
36 EEC (later art. 30 EC and art. 36 TFEU). See, Joined Cases 55 and 57/80 Musik-Vertrieb
Membran v GEMA ECLI:EU:C:1981:10, para 12; Case 402/85 Basset v SACEM
ECLI:EU:C:1987:197, para 11; Case 341/87 EMI Electrola v Patricia ECLI:EU:C:1989:30, para
7 and Joined Cases C-92/92 and C-326/92 Phil Collins and Others ECLI:EU:C:1993:847, para
21. However, in other cases, notably in Case C-61/97 FDV v Laserdisken ECLI:EU:C:1998:422,
para 17 and in Case C-200/96 Metronome Musik v Music Point Hokamp
ECLI:EU:C:1998:172, para 18, both relating to the rental right, the Court made more overt
references to the fact that the specific subject-matter of copyright covers the right to control
“other acts of exploitation of the protected work, such as rental, which are of a different nature
from sale or any other lawful act of distribution” and which could not be rendered lawful by
the mere “release into circulation of a picture and sound recording”.
133
Cf. Poort 2018, p. 294.
134
Of course, the right holder could require its contractual parties to impose similar obligations
on the buyers in the secondary market. However, compared to the grant of an exclusive right
this would unnecessarily raise transaction costs as well as weaken the enforcement position of
right holders in cases in which the contractual chain of imposing the obligation is broken. See,
contra, the Opinion of AG Mancini in Case 158/86 Warner Brothers v Christiansen
ECLI:EU:C:1988:31, para 7, who had argued that a national rental right could not be invoked
against an establishment renting out copies imported from a different Member State where
118
In two more recent judgements the CJEU has further clarified that a right holder is
only entitled to appropriate remuneration, meaning it “must be reasonable in in
relation to the economic value of the service provided”.
135
Thus, legislation prohibiting
the import, sale and use of decoding devices giving access to an encrypted broadcast
from another Member State that includes protected subject-matter was deemed
contrary to the freedom to provide services. It would allow the right holder to obtain
remuneration beyond the remuneration obtained when licensing their content to the
broadcaster, considering that when licensing its content the right holder can take
account of the actual and potential number of viewers also in other Member States.
136
Similarly, in Usedsoft the Court rejected the argument that the exhaustion of the
distribution right concerning software should be limited to sale on a tangible medium.
Doing so would enable the right holder to obtain an additional remuneration on the
occasion of every resale, even though the first sale allowed the right holder to obtain
an appropriate remuneration, and moreover allow the right holder to partition
markets.
137
This again underlines why a right to control rental is and a right to control
resale is not part of the specific subject-matter.
There are a few decisions that are not fully consistent with an approach that views the
nature of copyright as a right enabling the author to obtain a remuneration as a reward
for their creative efforts. Firstly, this principle was arguably misapplied in Merck v
Stephar, where the Court held that the right holder cannot prevent resale after having
marketed a copy in a Member State where protection for the subject-matter in
question was not granted.
138
Under such circumstances, protection not being
available, the price of a copy can be expected to approach marginal cost, meaning the
right holder will not be in a position to obtain a reward in the form of remuneration
above marginal cost.
139
Secondly, in Laserdisken, which will be further discussed in
the following section, the Court rejected the possibility for Member States to maintain
a system of international exhaustion. Confronted with arguments that a rule
excluding the possibility of international exhaustion constituted an unjustified
restriction on the right to freedom of information, the Court merely held that “the
they had been put on the market by the right holder and pointed to the possibility of “inserting
appropriate clauses into the contract of sale”.
135
Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others
ECLI:EU:C:2011:631, para 109.
136
Ibid., paras 110-116.
137
Case C-128/11 Usedsoft ECLI:EU:C:2012:407, Para 62-3.
138
Admittedly, this was a patent case, but that decision equally took as a starting point that the
grant of a patent is intended to allow the inventor to obtain a reward (see supra, n 131).
139
See similarly Tritton et al. 2008, para 7-018-019. In his Opinion in Case C-267/95 Merck v
Primecrown ECLI:EU:C:1996:228, para 106 et seq. AG Fennelly tried to persuade to
reconsider its ruling in Merck v Stephar for similar reasons, but to no avail (see Case C-267/95
Merck v Primecrown ECLI:EU:C:1996:468).
119
alleged restriction on the freedom to receive information is justified in the light of the
need to protect intellectual property rights”.
140
The Court did not consider that the
right holder will typically have been able to receive a reward also in case of sale outside
the territory of the European Economic Area.
141
This of course highlights the fact that
the specific subject-matter has been circumscribed in the context of the free
movement of goods within the Community/Union.
98. Specific subject-matter and proportionality. What constitutes the
specific subject-matter of copyright in essence concerns a question with regard to the
balance between the rights of right holders and the free movement of goods and
services.
142
Nevertheless, one is hard-pressed to find an explicit reference to
proportionality, let alone a comprehensive proportionality analysis, in the CJEU’s
case law on the specific subject-matter. In general, it can be observed that the Court’s
assessment concerning the rights that constitute the specific subject-matter has been
notoriously meagre, defining the specific subject-matter on a case by case basis rather
than comprehensively, without a profound analysis of the nature and function of
copyright.
143
The definition of the specific subject-matter can be reconstructed in terms of
proportionality. First, permitting control over a certain use must both be suitable and
necessary to enable the author to obtain a reward, which can be considered as the
legitimate purpose pursued. Second, that reward must be appropriate, that is the
degree of fulfilment of the purpose of rewarding the author must not be
disproportionate stricto sensu to the detriment caused to the functioning of the
internal market. The latter is most clearly illustrated by decisions such as FAPL and
Usedsoft, discussed in the previous paragraph.
Finally, it is important to recognize that the concept of specific subject-matter is not
an entirely autonomous concept of Community/Union law in the sense that the Court
can be said to have defined it independent of national copyright law.
144
Instead it can
140
Case C-479/04 Laserdisken ECLI:EU:C:2006:549, para 65.
141
Mylly 2015, p.111. Cf. also Case 270/80 Polydor v Harlequin ECLI:EU:C:1982:43, in which
the Court held that the copyright holder could enforce the copyright in a Member State against
the importation and marketing of phonograms placed on the market with their consent in
Portugal, at time not yet a member of the Community, even though the cooperation agreement
between the European Economic Community and Portugal in force at the time included
provisions prohibiting restrictions on free movement similar to those in the Treaty.
142
Cf. AG Gulmann in his Opinion in Joined Cases C-241/91 P and C-242/91 P Magill
ECLI:EU:C:1994:210, para 79 and AG La Pergola in his Opinion in Case C-61/97 FDV v
Laserdisken ECLI:EU:C:1998:254, para 14.
143
Cf. Gotzen 1985, p. 471 et seq.
144
Cf. Joined Cases C-92/92 and C-326/92 Phil Collins and Others ECLI:EU:C:1993:847, para
20: “The specific subject-matter of those rights, as governed by national legislation, is to
ensure the protection of the moral and economic rights of their holders” (emphasis added).
120
be characterized as “an expression of the Court of Justice's view of the essential aim
pursued by the national copyright laws”.
145
It balances the aims pursued by (initially
national) copyright legislation with the aims of the Treaties. However, the Court’s
determination must necessarily have a certain independent character. That is to say,
the aims pursued by national copyright legislation can only function as a starting point
for what must be an independent evaluation of the legitimacy of those aims and
determination of the rights that are suitable, necessary and proportional to achieve
them.
146
After all, in this respect the task of the Court has been to determine the
conformity of certain measures with a norm of Community/Union law. If it were
solely up to national law to specify the “specific subject-matter”, national law could
itself determine its own conformity with the higher norms of EU law. This cannot be
the case, since it would permit Member States to independently determine the content
of the law that binds them.
147
Accordingly, in Warner Brothers, in which the Court
considered the exclusive rental right to be within the specific subject-matter, the
conclusion was intimately linked to the consideration that without such a right, right
holders could not be guaranteed a remuneration reflecting the number of occasions
on which the work is rented out.
148
One might argue that the Court did not intend to
evaluate the validity of that aim (to guarantee that remuneration) but merely intended
to ascertain whether the aim pursued was formally related to “the protection of
industrial and commercial property pursuant to article 36 [EEC]”.
149
However, as just
stated, the conclusion that the rental right formed part of the specific subject-matter
can only be based on independent evaluation of the underlying aim, which justifies
the inclusion of the rental right in the specific subject-matter.
4.3.2.2 Proportionality review of EU copyright legislation
99. Metronome & Laserdisken. The previous section concluded with the
observation that the definition of the specific subject-matter can be viewed as the
145
Opinion of AG Gulmann in Joined Cases C-241/91 P and C-242/91 P Magill
ECLI:EU:C:1994:210, para 70.
146
Cf. Opinion of AG Gulmann in Joined Cases C-241/91 P and C-242/91 P Magill
ECLI:EU:C:1994:210, para 85. See also Tritton et al. 2008, para 7-014 and Carre 2013, p. 9-
10.
147
Cf. Rivers 2006, p. 191, noting with regard to the “reasonableness-conception” of ECHR
rights, rejected by the ECtHR, that it does not ask whether a measure “is actually
proportionate, but whether a reasonable decision-taker might think that it is”, and that it
therefore proceduralizes “Convention rights, making them merely mandatory considerations
in the process of decision-taking, and denying their nature as substantive outcome-related
rights”. It would mean that “[p]ublic bodies would have the power to determine the law
intended to bind them.”
148
Case 158/86 Warner Brothers v Christiansen ECLI:EU:C:1988:242 and supra, n 130 and
accompanying text.
149
Ibid., para 16.
121
result of a proportionality analysis.
150
I argued that this analysis must necessarily
proceed from an independent understanding of the aim pursued by copyright and the
proportionality of the measures chosen to achieve it. Nevertheless, one can discern,
in a case like Warner Brothers, a certain reluctance of the CJEU to question whether
exclusivity is really the most appropriate way of striking a balance. This restraint is
even more evident in two cases in which the Court was asked about the validity of two
acts of copyright legislation by the EU in light of a possible violation of fundamental
rights.
Like in Warner Brothers, discussed in the previous section, the rental right was at the
centre of the dispute in Metronome Musik v Hokamp.
151
At issue was the introduction
in the Rental and Lending Rights Directive of a harmonized exclusive rental right for
authors and certain related right holders. The Court was asked about the compatibility
of that right with “Community law, in particular Community fundamental rights”.
152
The CJEU first considered the alleged incompatibility of the exclusive rental right
with the principle of exhaustion as rooted in free movement of goods. It basically
repeated its findings in Warner Brothers, noting that a distinction between the effects
of rental and sale was justified because it concerns different modes of exploitation.
Second, the Court considered whether the exclusive rental right placed an undue
restriction on the freedom to pursue a trade or profession. It started with its Hauer-
formula,
153
considering that the freedom in question may be subject to restrictions in
the general interest provided that they do not constitute a disproportionate and
intolerable interference, impairing the very substance of that right. The Court
discerned a variety of objectives pursued by the exclusive rental right: harmonization,
guaranteeing an appropriate income for authors and performers and the amortization
of investments by phonogram and film producers, and the protection of “industrial
and commercial property”.
154
In particular with regard to the right granted to
phonogram producers, the Court went on to consider that, in light of the “extremely
high and risky investments” an exclusive rental right “certainly constitutes the most
effective form of protection” to guarantee remuneration and the continued creation
of new works.
155
After pointing out the existence of an international obligation to
implement an exclusive rental right in respect of phonogram producers, the Court
concluded that the restriction on the freedom to pursue a trade or profession was
150
Cf., similarly, Gormley 1985, p 126.
151
Case C-200/96 Metronome Musik v Music Point Hokamp ECLI:EU:C:1998:172.
152
Ibid., para 10.
153
See, supra, n 89 and accompanying text.
154
Case C-200/96 Metronome Musik v Music Point Hokamp ECLI:EU:C:1998:172, paras 22-
23.
155
Ibid., para 24.
122
disproportionate nor intolerable, because a less restrictive measure appeared
unavailable, adding that businesses were free to negotiate a license for rental.
156
Almost a decade later, in Laserdisken, the Court had to determine whether the
InfoSoc Directive precluded Member States from maintaining a system of
international exhaustion and, if so, whether that proscription violated any higher
norm of Community law.
157
The Court concluded, first, that it followed from the
wording, context and purpose of the provision that Member States were indeed no
longer allowed to maintain a system of international exhaustion. Second, it rejected a
host of arguments disputing the validity of the directive. Of particular relevance in the
present context is the Court’s assessment of the alleged violation of the right to
freedom of expression and infringement of the principle of proportionality by the
Community’s choice for regional exhaustion.
158
The Court first discussed the alleged
violation of the principle of proportionality, separate from the inquiry into the alleged
violation of the right to freedom of expression. The Court emphasized that differences
between the Member States as to the rule of exhaustion are “likely to affect the smooth
functioning of the internal market”.
159
It added that the protection of copyright is
important to ensure creativity and guarantee a reward and return on investment, and
to protect the dignity of authors.
160
The choice for regional exhaustion was therefore,
in the opinion of the Court, not disproportionate. As to the limitation of the right to
receive information
161
the Court simply considered that “the alleged restriction on the
freedom to receive information is justified in the light of the need to protect
intellectual property rights, including copyright, which form part of the right to
property”.
162
100. Analysis. Metronome and Laserdisken are characterized by their (in regard
to the latter: extremely) skimpy proportionality analysis of the alleged fundamental
rights violation. Tuomas Mylly has extensively criticized these decisions, calling the
period during which the Court gave its judgements in Metronome and Laserdisken
156
Ibid., paras 25-27.
157
Case C-479/04 Laserdisken ECLI:EU:C:2006:549.
158
The Court also considered (and rejected) claims that the choice for regional exhaustion
violated international agreements, adversely affected free competition, and infringed the
principle of equal treatment and the obligations of the Community to “contribute to the
flowering of the cultures of the Member States” and to contribute to the promotion to the right
to information and education of consumers.
159
Case C-479/04 Laserdisken ECLI:EU:C:2006:549, para 55.
160
Ibid., para 57.
161
The Court also dismissed the claim that the author’s right to freedom of expression was
infringed, pointing out that the choice for regional exhaustion has no bearing on the author’s
right to place a copy of their work on the market (para 63).
162
Case C-479/04 Laserdisken ECLI:EU:C:2006:549, para 65.
123
one of “rejection and ignorance of fundamental rights”.
163
Mylly argues that in
Metronome the Court failed to consider that a harmonized remuneration right could
also have adequately protected the interests of right holders while being less
restrictive of entrepreneurial freedom, reducing transaction costs and avoiding the
risk of refusals to license.
164
As to Laserdisken, he laments that the Court seemed to
reject the idea of a conflict between copyright and the right to freedom of
expression/information altogether by not substantiating in any manner why “the
alleged restriction … is justified in the light of the need to protect intellectual property
rights”, suggesting that a full proportionality analysis could have led to the opposite
conclusion because the right holder already received a reward outside the EU.
165
Moreover, he suggests that in both cases that the Court had a very narrow perception
of the potential conflicts that could arise. In Metronome the Court ignored the
possible restriction of other fundamental rights such as the right to take part in
cultural life. In Laserdisken the Court disregarded the threat to cultural diversity by
the rule of regional exhaustion, which subjects the importation of cultural artefacts
into the European Economic Area to private control. Moreover, the choice for regional
exhaustion did not give right holders greater protection than a choice for international
exhaustion, since it is unlikely that it will lead to the negotiation of importation
licenses and the right to price-discriminate is not necessarily a part of the right to
property (moreover, individual authors are not likely to be the ones profiting from the
ability to price-discriminate).
166
While I certainly agree with Mylly in the sense that the proportionality analysis in
both Metronome and Laserdisken is inexcusably short, I do not necessarily agree
insofar as he intends to suggest that a proper analysis would have led to a different
outcome.
167
As to the exclusive rental right, the conclusion that such a right is suitable
to achieve the legitimate purpose of enabling authors and performers to obtain an
163
Mylly 2015, p. 107.
164
Ibid., p. 109.
165
Ibid., p. 110-111.
166
Ibid., p. 109-111.
167
In a more recent publication Mylly has added that these cases are illustrative of the problem
of “rights inflation”, that is the phenomenon of the increasing scope of fundamental rights, in
these cases the right to property. He suggests that such an increasing scope is problematic
because “challenges of intellectual property directives or regulations become systematically
tamed, as their provisions implement property protection of intellectual property, a right
recognized under Article 17(2) of the Charter, and could hence be used to justify the legislation
in question” (Mylly 2019, p. 277). I am not sure I agree. While it is true that the CJEU in these
cases appeared to treat the protection of property as the be-all and end-all, that is a problem
with these particular decisions. A proper assessment would have considered the external
justification of the specific measure, specifically whether the reasons for the measures in
question could justify the limitations of other rights. In this regard, it probably matters little
whether the legitimate purpose for the measures is found in the right to property, or instead
in the public interest or even by reference to other rights.
124
income and of amortization of investments appears easily justified. As would be the
conclusion that a remuneration right would not have reached that purpose “as
effectively” as an exclusive right, meaning the measure cannot be faulted for a lack of
necessity.
168
Nevertheless, the alternative of a remuneration right should be re-
introduced when assessing the proportionality stricto sensu of the exclusive right. In
this regard, the CJEU essentially considered that the degree of fulfilment of the
purpose pursued is great (“most effective”) and that the reliability of that assessment
is similarly great (“certainly”). Conversely, it appeared to assess the degree of
interference with the freedom to pursue a trade or profession as light by considering
that rental businesses could pursue a license. It did not explicitly compare the
measure to the alternative of a remuneration right, but did so implicitly by referring
to the analysis of the AG in that regard, who had considered that there existed a risk
that sales would decline because users could easily make their own copy by renting
the work if right holders did not possess exclusive rights.
169
It must be admitted that
the Court and its AG easily accepted the legislature’s propositions concerning the
importance of the exclusive rental right to the aim pursued, without requiring a strong
evidential basis.
170
Nevertheless, the outcome can be defended. The Court could have
held that, considering the relative importance of the aim pursued and the low degree
of interference with the freedom to pursue a trade or profession, it fell within the
margin of discretion of the legislature to proceed based on the justifiable presumption
that the aim pursued was best achieved by the introduction of an exclusive right.
Similarly, the interference with other fundamental rights, including the right to take
part in cultural life, did not seem so egregious as to the warrant a conclusion that they
were limited disproportionately, although the lack of their consideration does hurt the
persuasiveness of the judgement.
Similarly, the conclusion in Laserdisken is not impossible to justify, although
considerations as to the proportionality of the measure are practically completely
absent. The considerations concerning the importance of the smooth functioning of
the internal market and of copyright protection for the support of creative activity
cannot support the conclusion as to the proportionality of the measure, because they
say nothing about whether regional or international exhaustion is preferable.
Nevertheless, as Oliver and Stothers note, the choice for regional exhaustion was
made after extensive legislative debate.
171
This choice can again be considered to fall
within the discretion allowed to the legislature. In the first place, this discretion can
168
Cf., supra, n 65 and accompanying text.
169
Opinion of AG Tesauro in Case C-200/96 Metronome Musik v Music Point Hokamp
ECLI:EU:C:1998:18, para 26.
170
Cf. Husovec 2016, p. 248.
171
Oliver & Stothers 2017, p. 530.
125
be said to increase due to the empirical uncertainty as to which alternative (regional
vs. international exhaustion) ultimately increases overall welfare.
172
Moreover,
although the choice for regional exhaustion limits the right to receive information and
may negatively affect cultural diversity, one could argue that the latter is far from
certain and that the degree of interference with those principles is not particularly
serious. In that light, the Court could grant a considerable margin of discretion to the
legislature and demand good reasons to invalidate the choice it made.
173
4.3.2.3 The interpretation of the copyright acquis and the concept of fair balance
101. Outline. Chapter 2 concluded with the assertion that when interpreting
copyright, the CJEU often appears to balance the objective of rewarding authors with
competing considerations, if not explicitly then implicitly. The last decade or so has
seen a greater use by the CJEU of explicit balancing terminology and proportionality
analysis in its copyright case law. The CJEU emphasizes with increasing frequency the
need to strike a “fair balance of rights and interests” within the context of
interpretation and application of copyright law. It uses the concept of fair balance in
a number of different contexts, which can be divided in the following three categories:
(i) fair balance and fair compensation, (ii) fair balance and interpretation and
application of copyright law, and (iii) fair balance and enforcement against
intermediaries. I discuss these separately.
174
(i) Fair balance and fair compensation
102. Fair compensation. A first instance where the CJEU has referred to the
concept of fair balance is in the context of the interpretation of articles 5(2)(a) and (b)
of the InfoSoc Directive. These provisions make the introduction by the member
states of an exception for certain acts of reprographic copying and for private copying
conditional on the provision of “fair compensation” to the right holder. The use of the
concept of fair balance in this context is of a particular nature, as it does not concern
any fundamental right, nor does it concern a demarcation between rights and duties
of right holders and of users. Instead, the CJEU ascertains whether the systems used
by Member States to calculate fair compensation maintains a fair balance between the
172
Cf., e.g., the dialogue between Malueg & Schwartz 1994 and Abbott 1998.
173
Cf. in this regard the Opinion of AG Sharpston in Case C-479/04 Laserdisken
ECLI:EU:C:2006:292, para 71: “It seems to me that there is nothing in the present case to
suggest that the choice by the Community legislator of mandatory Community exhaustion
rather than optional international exhaustion was either unreasonable or disproportionate.”
174
Not discussed is Case C-168/09 Flos ECLI:EU:C:2011:29, para 56 et seq., concerning the
proportionality of national transitional measures protecting acquired rights and legitimate
expectations after the revival of copyright protection in designs that had entered the public
domain in the Member State in question as a result of Directive 98/71/EC of the European
Parliament and of the Council of 13 October 1998 on the legal protection of designs (OJ 1998
L 289, p. 28).
126
persons concerned, that is whether those systems guarantee that ultimately only those
persons who are in the position to make use of the reprography and private copying
exceptions are liable to pay that compensation (typically indirectly by way of a levy on
the copying equipment used).
175
These decisions will not be discussed here due to the
particular nature of the context in which the Court uses this concept, which is not
directly related to the research question.
176
(ii) Fair balance and interpretation and application of copyright law
103. Fair balance as the legislative intention. Far more interesting for
present purposes is the second context in which the CJEU has referred to the concept
of fair balance of rights and interests, namely when determining the scope of exclusive
rights and of limitations and exceptions. Some of these decisions have already been
discussed to a greater or lesser extent in Chapter 2. It is nevertheless fruitful to discuss
these decisions more systematically in order to get an idea whether the use of this
concept has contributed (or is capable of contributing) to greater consistency and
transparency of the process of judicial development of copyright law.
First, as a matter of principle, the Court has emphasized on several occasions that
certain provisions of copyright law are intended to safeguard a fair balance of rights
and interests of right holders and those of users. In Football Association Premier
League and in PRCA v NLA the Court stated as much with regard to the mandatory
exception for transient and incidental copying.
177
In Painer the Court did so with
regard to the quotation exception.
178
By contrast, in that same decision the Court
indicated that the public security exception
179
is not intended to safeguard a fair
175
One could conceive of this reference to fair balance as a consideration of the proportionality
of the freedom to conduct a business of the various persons who make and sell copying
equipment and/or the right to property of those who buy that equipment without being in the
position to make use of the private copying or reprography exceptions, but the CJEU has not
framed the issue in this manner.
176
See Case C-467/08 Padawan ECLI:EU:C:2010:620, para 38 et seq.; Case C-462/09
Stichting de Thuiskopie ECLI:EU:C:2011:397, para 25; Case C-521/11 Amazon.com
International Sales and Others ECLI:EU:C:2013:515, paras 30 et seq.; Case C-435/12 ACI
Adam and Others ECLI:EU:C:2014:254, paras 53 et seq.; Case C-463/12 Copydan Båndkopi
ECLI:EU:C:2015:144, para 53; Case C-572/13 Hewlett-Packard Belgium v Reprobel
ECLI:EU:C:2015:750, paras 81 et seq.; Case C-470/14 EGEDA and Others
ECLI:EU:C:2016:418, paras 35-36 and Case C-110/15 Microsoft Mobile Sales (formerly Nokia
Italia) and Others ECLI:EU:C:2016:717, para 42 et seq.
177
Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others
ECLI:EU:C:2011:631, para 164 and Case C-360/13 Public Relations Consultants Association
(PRCA) ECLI:EU:C:2014:1195, para 24.
178
Case C-145/10 Painer ECLI:EU:C:2011:798, para 132.
179
Art. 5(2)(e) InfoSoc Directive.
127
balance between the rights and interests of right holders and freedom of the press
specifically, but instead serves to ensure the protection of public security.
180
In several subsequent cases the CJEU has, more generally, emphasized that the
harmonization effected by the InfoSoc Directive aims to safeguard a fair balance
between, on the one hand, the “interest” of authors and related rights holders in
protection of their intellectual property rights guaranteed by article 17(2) EU Charter
and, on the other hand, the interests and fundamental rights of users and the general
interest.
181
Member States, for their part, must ensure, “in transposing the exceptions
and limitations referred to Article 5(2) and (3) of [the InfoSoc Directive], … that they
rely on an interpretation of the directive which allows a fair balance to be struck
between the various fundamental rights protected by the European Union legal
order”.
182
104. Interpretation of the acquis. Of particular interest are those decisions in
which the CJEU has itself relied more explicitly on the fair balance of rights and
interests to choose (or in other cases: avoid) a certain interpretation of the law.
Although the emphasis on the importance of striking a fair balance has the potential
to lay bare the fundamental conflict of values which the CJEU often has to resolve,
actual balancing or proportionality considerations are typically few and far between.
This is certainly true for the early cases in which the CJEU referred to this concept.
In Painer the CJEU eventually concluded in respect of the quotation exception that
from the point of view of reconciling the right to freedom of expression with the
interests of the author in being able to prevent reproduction, it made no difference
whether a quotation was made as part of a protected work or as part of something not
protected by copyright. The InfoSoc Directive therefore does not preclude the
application of the quotation exception also in the latter case.
183
Similarly, in DR & TV2
Danmark, concerning the question whether the conditions in article 5(2)(d) of the
InfoSoc Directive that a third party act “on behalf of” and “under the responsibility of”
a broadcasting organization are cumulative or are alternative, the Court considered
inter alia that an approach that considered those conditions as alternative ensures
180
Case C-145/10 Painer ECLI:EU:C:2011:798, para 114.
181
Case C-160/15 GS Media ECLI:EU:C:2016:644, para 31; Case C-469/17 Funke Medien
NRW (Afghanistan Papers) ECLI:EU:C:2019:623, para 57; Case C-476/17 Pelham and Others
(Metall auf Metall) ECLI:EU:C:2019:624, para 32 and Case C-516/17 Spiegel Online
ECLI:EU:C:2019:625, para 42. Cf. also Case C-161/17 Renckhoff ECLI:EU:C:2018:634, para
41.
182
Case C-469/17 Funke Medien NRW (Afghanistan Papers) ECLI:EU:C:2019:623, para 53;
and Case C-516/17 Spiegel Online ECLI:EU:C:2019:625, para 38.
183
Case C-145/10 Painer ECLI:EU:C:2011:798, paras 134-137.
128
greater freedom to conduct a business “while at the same time not adversely affecting
the substance of copyright”.
184
In Ulmer the Court held that a work is “subject to purchase or licensing terms” within
the meaning of article 5(3)(n) InfoSoc Directive
185
only when an actual licensing
agreement in respect of that work has been concluded, and not if the right holder has
merely offered to enter into such an agreement .
186
The CJEU considered among other
things that such an interpretation would run counter to the fair balance between the
rights and interests of right holders and those of users which the exception seeks to
maintain.
187
The Court did not elaborate on which rights and specifically where at
stake, nor why in particular the rights and interests of users outweighed those of right
holders in this case. AG Jääskinen had gone slightly more into detail, indicating that
the general interest objective underlying the exception, the promotion of learning and
culture, required that the user be able to rely on the exception. That interest would be
undermined, he suggested, if the right holder could unilaterally rule out the
application of the exception by offering a license.
188
Notably, both the Court and its
AG left undiscussed the argument that not just any offer by the right holder should
be able to preclude the applicability of the exception, but only reasonable offers.
189
By contrast to these earlier decisions, GS Media and Renckhoff did not concern the
interpretation of a limitation or exception, but of the exclusive right of communication
to the public. In GS Media the Court concluded that placing a hyperlink to a copyright-
protected work, made available on another website without proper authorization,
does not constitute a communication to the public if the user has no (constructive)
knowledge of the illegality.
190
It did so after apparently agreeing with the argument
submitted by one of the parties to the national proceedings, several Member State
governments as well as the Commission, that qualifying all links to freely available,
illegal content as a communication to the public would not be consistent with the
184
Case C-510/10 DR and TV2 Danmark ECLI:EU:C:2012:244, para 57. On this case, see also,
supra, § 33.
185
Art. 5(3)(n) allows for a limitation or exception for “use by communication or making
available, for the purpose of research or private study, to individual members of the public by
dedicated terminals on the premises of [publicly accessible libraries, educational
establishments or museums, or of archives] of works and other subject-matter not subject to
purchase or licensing terms which are contained in their collections”.
186
On this case, see also, supra, § 53.
187
Case C-117/13 TU Darmstadt v Eugen Ulmer ECLI:EU:C:2014:2196, para 31.
188
Opinion of AG Jääskinen in Case C-117/13 TU Darmstadt v Eugen Ulmer
ECLI:EU:C:2014:1795, para 24.
189
The German Federal Supreme Court, the referring court, had considered this option in its
order for reference. See German Federal Supreme Court (First Civil Senate), 20 September
2012, I ZR 69/11 – Elektronische Leseplätze, para 13 et seq. See also, supra, Chapter 2, n 259
and accompanying text.
190
On this case, see also, supra, § 41.
129
“right balance”, since that would be highly restrictive of the right to freedom of
expression and information. The Court added to this that the Internet is “of particular
importance to freedom of expression and of information” and that hyperlinks
“contribute to its sound operation as well as to the exchange of opinions and
information” on the Internet.
191
Moreover, in what seems like a further act of
balancing, in order to safeguard the rights of authors, the Court added that knowledge
on the part of the user must be presumed when it is acting for profit.
In Renckhoff, the CJEU concluded that “the posting on one website of a photograph
which has been previously published without restriction and with the consent of the
copyright holder on another website” nevertheless constitutes a communication to the
public, in part because a decision otherwise “would fail to have regard to the fair
balance” between the “interest” of right holders in the protection of their intellectual
property, guaranteed by article 17(2) EU Charter, and the interests and fundamental
rights of users, in particular the right to freedom of expression and information, and
the public interest. The comparison with GS Media failed, because the independent
posting of a work to a website did not contribute to the sound operation of the Internet
in a similar way as hyperlinks do. The CJEU also rejected as immaterial the argument
that the communication to the public in question was made on a school website as
part of a student presentation and therefore supported by the right to education. In
that regard the Court pointed out that such use might be covered by the optional
exemption of article 5(3)(a) of the InfoSoc Directive.
192
105. Three German references. The CJEU was given the opportunity to further
clarify how fundamental rights guide the interpretation of rights and exemptions in
three references by the German Federal Supreme Court from the summer of 2017. In
all three cases the referring court asked, in fairly general terms, in which way
fundamental rights are to be taken into account when determining the scope of
exclusive rights and of the limitations and exceptions to those rights as harmonized
by the InfoSoc Directive.
193
The CJEU, which handed down three Grand Chamber
191
Case C-160/15 GS Media ECLI:EU:C:2016:644, para 45.
192
Case C-161/17 Renckhoff ECLI:EU:C:2018:634, paras 40-43. On this case, see also, supra,
§ 42.
193
See the second question in both Case C-469/17 Funke Medien NRW (Afghanistan Papers)
ECLI:EU:C:2019:623 and Case C-516/17 Spiegel Online ECLI:EU:C:2019:625 and the sixth
question in Case C-476/17 Pelham and Others (Metall auf Metall) ECLI:EU:C:2019:624.
There was a minor variation in the scope of the questions. In Spiegel Online the national court
limited the question to the interpretation of the limitations and exceptions in art. 5(3) InfoSoc
Directive. The reference in Afghanistan Papers also asked about the impact of fundamental
rights on the interpretation on the limitations and exceptions in art. 5(2) InfoSoc Directive.
The reference in Metall auf Metall was the broadest, also asking about the interpretation of
art. 2(c) InfoSoc Directive (the exclusive reproduction right for phonogram producers) and
art. 9(1)(b) and art. 10(2) Rental and Lending Rights Directive (respectively containing the
130
judgements on 29 July 2019, reformulated this question in all three cases. In
Afghanistan Papers and Spiegel Online, also addressed in § 54, it considered that the
referring court, in essence, wished to know whether “a national court may depart from
a restrictive interpretation of [limitations and exceptions] in favour of an
interpretation which takes full account of the need to respect freedom of expression
and freedom of information, enshrined in Article 11 of the Charter” (emphasis
added).
194
The CJEU answered this question in the affirmative, concluding that in
striking the balance “which is incumbent on a national court” between the exclusive
rights of right holders and the “rights of users” referred to in the limitations and
exceptions under consideration “a national court must, having regard to all the
circumstances of the case before it, rely on an interpretation of those provisions
which, whilst consistent with their wording and safeguarding their effectiveness, fully
adheres to the fundamental rights enshrined in the Charter”.
195
In that vein, the CJEU itself in Afghanistan Papers and in Spiegel Online settled on a
liberal interpretation of article 5(3)(c), second case, which permits a limitation or
exception for use in connection with the reporting on current events.
196
In the
Afghanistan Papers proceedings, the German state is attempting to enforce the
copyright in confidential military reports in order to prevent them from being
communicated to the public, in this case on a newspaper website. The newspaper had
published these reports on its website, as the CJEU points out, “in a structured form
in conjunction with an introductory note, further links and a space for comments”. It
therefore held that such use must be held to qualify as being made “in connection with
… reporting”. It reached this conclusion within the context of its more general reply
as to the obligation of national courts to balance the rights of authors and of users,
but did not elaborate why this interpretation strikes such a balance. Arguably this
balance must be more specifically struck when ascertaining whether the use in
question is “justified by the informatory purpose”, as article 5(3)(c) requires, as well
as within the context of “striking the balance which is incumbent on a national court
exclusive distribution right for phonogram producers and declaring that Member States may
provide for the same limitations and exceptions to that exclusive right as it provides for in
connection with the protection of copyright in literary and artistic works).
194
Only on one earlier occasion has the CJEU indicated that limitations and exceptions must
be interpreted restrictively (Case C-463/12 Copydan Båndkopi ECLI:EU:C:2015:144, para
76). On all other occasions, it has merely stipulated that they must be interpreted strictly. On
the difference between the two, e.g., Galopin 2012, para 389 et seq.
195
See further, supra, Chapter 2, n 263 and accompanying text.
196
Specifically: “use of works or other subject-matter in connection with the reporting of
current events, to the extent justified by the informatory purpose and as long as the source,
including the author's name, is indicated, unless this turns out to be impossible”.
131
between the exclusive rights … and … the rights of users”.
197
In this regard a broad
interpretation of what constitutes “use … in connection with … reporting” makes
sense, because the rights and interests of authors can be adequately safeguarded by
the subsequent proportionality analysis, whereas a narrow interpretation of that text
would substantially limit the freedom of the media and the right to freedom of
information of the public, without providing substantial additional protection to the
rights of authors.
198
The CJEU similarly opted for a broad interpretation of both article 5(3)(c), second
case and article 5(3)(d) of the InfoSoc Directive in Spiegel Online. These proceedings
concern the publication on a newspaper website of articles written by a national
politician without his authorization, in order to substantiate allegations elsewhere on
that website that the politician in question has misled the public. The national court
wanted to know whether national law may limit the application of the exception to
cases in which it cannot be reasonably expected of the user that they seek permission.
The CJEU answered this question in the negative. The CJEU emphasized, in
particular, that “it is necessary … for the information relating to [a current] event to
be diffused rapidly”, that the purpose of the provision is “to contribute to the exercise
of the freedom of information and the freedom of the media” and that the press should
be able to inform the public “without restrictions other than those that are strictly
necessary”.
199
Arguably, the CJEU must be understood as meaning that the
application of the exception may not be limited to cases in which practical
considerations (e.g. lack of time) hinder the obtaining of authorization, and that the
exception ought to also apply in other cases in which the use is “to the extent justified
by the informatory purpose”. This entails a proportionality analysis, as admitted by
the Court.
200
In Spiegel Online the CJEU also concluded, with regard to the quotation
exception,
201
that an interpretation that holds that the concept of “quotations” covers
quotations made by means of linking to a file which can be downloaded independently
is not contrary to the fair balance which must be struck. Like the broad interpretation
of article 5(3)(c), second case, in Afghanistan Papers, such a broad interpretation is
justified because the interests of authors are sufficiently guaranteed by the
197
Case C-469/17 Funke Medien NRW (Afghanistan Papers) ECLI:EU:C:2019:623, paras 75-
76.
198
Cf. the similar ruling DR & TV2 Danmark, supra, n 184 and accompanying text.
199
Case C-516/17 Spiegel Online ECLI:EU:C:2019:625, paras 71-72.
200
Ibid., para 68. The outcome of this proportionality analysis can just as well be cast in terms
of reasonableness: if the use is justified by the informatory purpose, it is not reasonable to
require the user to seek authorization. Following the Opinion of AG Szpunar in Case C-469/17
Funke Medien NRW (Afghanistan Papers) ECLI:EU:C:2018:870, paras 27-29, I defended an
interpretation of art. 5(3)(c), second case, to that effect elsewhere. See Jongsma 2019, p. 11-
12.
201
Art. 5(3)(d) InfoSoc Directive.
132
subsequent, overarching balancing exercise which must be carried out within the
context of the application of that provision.
202
Finally, in Metall auf Metall the CJEU considered the question in which way
fundamental rights are to be taken into account when determining the scope of
exclusive rights and of the limitations and exceptions to those rights as harmonized
by the InfoSoc Directive within the context of the question whether the use in a
phonogram of a sample taken from another phonogram constitutes a reproduction.
The CJEU concluded that it does not if that sample is no longer recognizable. The
Court’s reasoning in this regard was already discussed in § 37. It is probably the
clearest occurrence of proportionality analysis: permitting a phonogram producer to
invoke their exclusive reproduction right against such use would interfere with the
freedom of arts, while it would not fulfil the exclusive right’s purpose of permitting
that producer to realize a satisfactory return on their investment.
203
Nevertheless, the
precise nature of the use of proportionality is unclear. On the one hand, one could
understand the Court as suggesting that such protection would not be
suitable/necessary to achieve the purpose. On the other hand, the addition of the
adjective “satisfactory” may imply instead that the hypothetical degree of interference
created with the freedom of arts if the use was prohibited outweighed the hypothetical
degree of fulfilment of the objective to guarantee a return on investment.
204
The
Court’s conclusion can be contrasted with that reached by AG Szpunar in his Opinion
in this case. He considered that fundamental rights could not justify a departure from
the wording “except in cases of gross violation of the essence of a fundamental right”
and, moreover, that “it seems fair that phonogram producers should share in the
revenue derived from the exploitation of works created using their phonogram”.
205
106. Application by national courts. The decisions discussed in the previous
paragraphs principally concerned the interpretation by the CJEU of the scope of
provisions of EU law in light of their purpose to safeguard a fair balance. However, as
was pointed out, it is also incumbent on Member States, including national courts, to
ensure that a fair balance is struck when transposing exclusive rights and the
limitations and exceptions thereto and when applying those norms in specific cases.
206
202
Case C-516/17 Spiegel Online ECLI:EU:C:2019:625, paras 82-83.
203
Case C-476/17 Pelham and Others (Metall auf Metall) ECLI:EU:C:2019:624, para 38.
204
See further, infra, § 161.
205
Opinion of AG Szpunar in Case C-476/17 Pelham and Others (Metall auf Metall)
ECLI:EU:C:2018:1002, paras 97-98.
206
Although technically this duty has been recognized only specifically with regard to (specific
provisions in) the InfoSoc Directive, there is little reason to believe that it does not exist in
respect of exclusive rights and limitations and exceptions in the acquis communautaire
generally
133
The duty of a national court to ensure that the application of a particular exemption
preserve a fair balance was more specifically outlined in the Deckmyn decision.
Deckmyn concerned the interpretation of the parody exception.
207
The CJEU was
asked about the scope of the concept of parody and whether it requires certain
conditions to be fulfilled. After concluding that the concept of parody is an
autonomous concept of EU law, the Court held that a parody should merely “evoke an
existing work while being noticeably different from it, and … constitute an expression
of humour or mockery”.
208
It rejected other conditions as not being required by either
wording, context or the objective of the provision. As regards the latter, the Court
noted once more that the exemptions in the InfoSoc Directive are intended to strike a
fair balance between the rights and interests of “authors” and those of “users”.
209
Therefore, the “application, in a particular case, of the exception for parody … must
strike a fair balance between … the interests and rights of persons referred to in
Articles 2 and 3 [of the InfoSoc Directive], and … the freedom of expression of the
user”.
210
The parody under consideration in Deckmyn conveyed a discriminatory message. The
Court held that “holders of rights provided for in Articles 2 and 3” of the InfoSoc
Directive have “a legitimate interest in ensuring that the work protected by copyright
is not associated with such a message”, to be taken into account by the national court
when striking a fair balance.
211
The Court thus made it clear that it is willing to
recognize interests without a particular basis in European law, since the “legitimate
interest” it recognized does not belong to just the author, which could be justified as
emanating from their moral rights (even if these have been explicitly left outside the
scope of harmonization), but also to any “holder of rights”.
107. The fundamental rights defence. Courts must thus ensure that the
interpretation and application of copyright law “strikes a fair balance” and “fully
adheres to fundamental rights”. The question is whether, if copyright law itself cannot
be interpreted or applied in a manner that preserves a fair balance, certain uses ought
to nevertheless be permitted in order to adequately safeguard the exercise of a
particular fundamental right. That is, can fundamental rights act as external
restrictions on the rights of authors? This question has been the subject of much
debate over the last few decades.
212
In Afghanistan Papers and in Spiegel Online the
207
Art. 5(3)(k) InfoSoc Directive.
208
Case C-201/13 Deckmyn and Vrijheidsfonds ECLI:EU:C:2014:2132, para 20.
209
Ibid., para 26.
210
Ibid., para 27.
211
Ibid., para 31 (emphasis mine).
212
See more elaborately Chapter 7.
134
German Federal Supreme Court appeared to ask a question to this effect, namely
whether the fundamental rights of freedom of information and freedom of the media
as guaranteed by the EU Charter can justify exceptions or limitations to the exclusive
rights granted to authors in the InfoSoc Directive beyond the limitations and
exceptions explicitly provided in article 5(2) and (3). This was relevant, because in
both cases the referring court doubted whether the use in question was covered by
any of the statutory exemptions.
The CJEU simply answered the referring court’s question in the negative, pointing out
that permitting a Member State to introduce a limitation or exception beyond those
enumerated in the InfoSoc Directive would undermine the exhaustive nature of the
harmonization effected by that directive. The CJEU emphasized that that
harmonization aims to strike a fair balance and pointed out that “[t]he mechanisms
allowing those different rights and interests to be balanced are contained in [the
InfoSoc Directive] itself”.
213
This answer was unsurprising, given the general and
broad nature of the question referred. Strictly speaking, the CJEU did not address the
question whether users themselves can rely on fundamental rights directly, leaving
unanswered the thorny question of whether fundamental rights can act as external
constraints on copyright.
Note should be made of the Opinions given by AG Szpunar in both proceedings, who
did substantively engage with the question concerning the potential external
constraints placed on copyright by fundamental rights. He reached contrasting
conclusions in both cases.
214
In Afghanistan Papers, the AG considered that the
enforcement of copyright interferes with the right to freedom of expression and
consequently that this interference must pursue a legitimate purpose and be
proportionate. In the first place, the AG considered that state enforcement does not
pursue a legitimate purpose. According to the AG such a legitimate purpose can be
found in neither an objective of general interest (safeguarding confidentiality could
not qualify as such because copyright is not granted for that purpose), nor in the
protection of the rights of others (the German state is not a beneficiary of fundamental
rights protection and can therefore not invoke the right to property, nor can it rely on
civil right of ownership because that would result in “the destruction of those
fundamental rights).
215
In the alternative, the AG also argued that, even if the
enforcement of copyright were considered to pursue a legitimate purpose, it is not
213
Case C-469/17 Funke Medien NRW (Afghanistan Papers) ECLI:EU:C:2019:623, paras 55-
64 and Case C-516/17 Spiegel Online ECLI:EU:C:2019:625, paras 40-49.
214
His Opinions, as well as the one in Metall auf Metall, are the subject of a more elaborate
critical discussion in Jongsma 2019.
215
Opinion of AG Szpunar in Case C-469/17 Funke Medien NRW (Afghanistan Papers)
ECLI:EU:C:2018:870, paras 49-55.
135
suitable to attain any of the objectives pursued by copyright. The German state’s
enforcement in this case is neither aimed at the protection of moral rights, nor at
economic exploitation.
216
Finally, the AG concluded with a balancing of some sorts,
pointing out that the restriction of freedom of expression would be “highly damaging”
which could not be justified by the enforcement of “copyright over any document
whatsoever”.
217
The German state, therefore, should be precluded from invoking its
copyright.
The highly methodical analysis pursued in Afghanistan Papers stands in sharp
contrast with that in Spiegel Online, perhaps as a result of “a slightly horrified
response to a full realisation of the potential consequences of the structure of
reasoning employed in [Afghanistan Papers]”.
218
The AG proceeds from the premise
that, in principle, the balance as struck by the legislature must be respected and that,
consequently, the protection of a fundamental right can only justify deviation from
that legislatively struck balance “in the event of an infringement of the essential
content of a fundamental right”.
219
The case must be distinguished from Afghanistan
Papers, according to the AG. First, the claimant is a natural person and not a state,
meaning he enjoys the protection of the fundamental right to property. Second, the
claimant acted completely transparently by publishing the articles on his own website
meaning the newspaper could have referred to them by means of a hyperlink. Third,
it should not matter that the claimant did not exploit the articles himself. The act of
enforcement against a third party itself constitutes an act of exploitation.
220
Moreover,
the AG implies the author should be entitled to enforce his economic rights in order
to protect his moral rights interests, including the right to change one’s beliefs.
Consequently, the limitation of the right to freedom of expression could not be
considered “unjustified”, as the claimant protects his own (fundamental rights)
interests “within the limits of the law” and therefore does not abuse his rights.
221
The
AG thus concluded with a different standard (operation within limits of the law) than
with which he started (no violation of the essence of a fundamental right).
(iii) Fair balance and enforcement against intermediaries
108. Intermediaries. Finally, the concept of fair balance has also been used
extensively in the context of enforcement, notably in proceedings between right
holders and Internet service providers in their capacity as intermediaries. These cases
216
Ibid., paras 58-62.
217
Ibid., para 64.
218
Griffiths 2019, p. 47.
219
Opinion of AG Szpunar in Case C-516/17 Spiegel Online ECLI:EU:C:2019:16, para 62
220
Ibid., paras 68-79.
221
Ibid., para 80.
136
can be roughly divided into two categories: cases in which right holders request an
injunction to obtain the identity of the person who infringed their rights and cases in
which right holders request an injunction to prevent (further) infringements.
Although not directly relating to the research question,
222
they are discussed for their
comparative value, in particular as they shine light on the standard of review used by
the CJEU.
109. Identity of infringers. In Promusicae the CJEU was asked whether
Community law allowed or even required the communication of personal data (i.e.
the identities) of customers of an internet access provider to holders of intellectual
property rights for the (alleged) infringement of their rights.
223
The Court concluded
that although the applicable directives
224
did not preclude Member States from
introducing an obligation to that effect, it did not require that Member States
introduce such an obligation either. It was at this point that the Court introduced the
concept of fair balance. It noted – somewhat enigmatically – that, even though the
applicable directives did not obligate Member States to introduce an obligation to
divulge personal data to right holders in order to guarantee them effective protection
of their rights, in transposing those directives Member States should “rely on an
interpretation of the directives which allows a fair balance to be struck between the
various fundamental rights protected by the Community legal order”.
225
Moreover,
national authorities and courts should likewise interpret the national
implementations of those directives in a manner that does not violate those
fundamental rights. In this case, the affected fundamental rights to be balanced, as
identified by the Court, were the right to protection of property and the right to
effective judicial protection on the one hand, and the right to protection of private life
on the other.
226
The Court did not specify what the result of the fair balance assessment ought to be in
the case at hand, leaving it to the discretion of the national court. In a subsequent
case, the Court emphasized this discretion by sanctioning a national provision that
enabled the national court to weigh the different interests involved, thus ensuring a
222
See, supra, § 11
223
Case C-275/06 Promusicae ECLI:EU:C:2008:54.
224
The E-Commerce Directive, the InfoSoc Directive, the Enforcement Directive and Directive
2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the
processing of personal data and the protection of privacy in the electronic communications
sector, interpreted in light of Directive 95/46/EC of the European Parliament and of the
Council of 24 October 1995 on the protection of individuals with regard to the processing of
personal data and on the free movement of such data.
225
Case C-275/06 Promusicae ECLI:EU:C:2008:54, para 68.
226
See also, similarly, the order in Case C-557/07 LSG-Gesellschaft zur Wahrnehmung von
Leistungsschutzrechten ECLI:EU:C:2009:107.
137
decision respectful of a fair balance in the specific circumstances of every case. In
Bonnier Audio the Court was principally faced with the question whether Union law
precluded a (particular) national provision of Swedish law that permitted an internet
service provider to be ordered to divulge the identity of one of its customers to a
copyright holder whose rights that customer allegedly had infringed.
227
In other
words, the Court was faced with the question as to the legality of the manner in which
the Member State had availed itself of the possibility to lay down an obligation to
communicate personal date as recognized by the Court in Promusicae.
228
The Court
emphasized the fact that the national legislation required the national court to take
account of various factors, including the presence of a clear infringement, whether
divulging the identity of the customer facilitated the investigation into an
infringement or impairment of copyright and whether the reasons for ordering such
a divulgation outweighed “the nuisance or other harm which the measure may entail
for the person affected by it or for some other conflicting interest”.
229
Since the
provision of national law at issue enabled the conflicting interests to be weighed by
the national court, the Court concluded that it had to be regarded as likely to maintain
a fair balance.
230
By contrast, in Coty Germany the Court found fault with a provision of national law
allowing banks to unconditionally invoke banking secrecy to refuse to provide a right
holder with the name and address of an account holder who had allegedly infringed
that person’s intellectual property rights.
231
In other words, under no circumstances
could banks be obliged to facilitate the enforcement of intellectual property by a court
order requiring them to communicate the name and address of the infringing party to
the right holder. The case principally concerned the relationship between article 8(1)
of the Enforcement Directive, which grants right holders a right to information of
sorts,
232
and article 8(3)(e) of the same, which specifies that article 8(1) “shall apply
227
Case C-461/10 Bonnier Audio and Others ECLI:EU:C:2012:219
228
The Court was asked to rule about the compatibility of the national provision with Directive
2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention
of data generated or processed in connection with the provision of publicly available electronic
communications services or of public communications networks and amending Directive
2002/58/EC, which directive was not at issue in Promusicae. The Court, however, ruled that
the Swedish legislation under consideration was not covered by the material scope of the
Directive and proceeded to examine the legislation against the framework set out in
Promusicae.
229
Case C-461/10 Bonnier Audio and Others ECLI:EU:C:2012:219, para 58.
230
Ibid., paras 59-60.
231
The national proceedings concerned trademark infringement, but the question submitted
to the CJEU related more generally the right to such information of any intellectual property
holder under the Enforcement Directive.
232
Art. 8(1)(c): “Member States shall ensure that, in the context of proceedings concerning an
infringement of an intellectual property right and in response to a justified and proportionate
request of the claimant, the competent judicial authorities may order that information on the
138
without prejudice to other statutory provisions which … govern the protection of
processing or personal data”. The CJEU noted that the case concerned the
reconciliation of the fundamental rights to an effective remedy and to intellectual
property and the right to protection of personal data, although the subsequent
analysis was first and foremost focused on the requirements following from the
Enforcement Directive.
233
It considered, first, that article 8(1)(c) of the Enforcement
Directive requires that Member States ensure that the competent judicial authority
may order the provider of commercial services to an infringer to disclose information
identifying that infringer.
234
The provision at issue shielded banks from such an order
in an unlimited manner, meaning the “right to information” provided in article 8(1)
is frustrated and preventing the national court “from taking due account of the specific
characteristics of each intellectual property right and, where appropriate, the
intentional or unintentional character of the infringement”.
235
Put otherwise, unlike
in Bonnier Audio, the national court would therefore not be able to weigh the different
interests involved and determine whether in the particular circumstances of the
present case a disclosure of information is warranted. An “unlimited and
unconditional authorization to invoke banking secrecy” is therefore “capable of
seriously impairing, in the context of Article 8 of [the Enforcement Directive], the
effective exercise of the fundamental right to intellectual property”.
236
The Court
therefore concluded that such a national provision to that effect does not fulfil the
requirement to ensure a fair balance between the various affected fundamental rights,
having considered earlier in the judgement that “a measure which results in serious
infringement of a right protected by the Charter is to be regarded as not respecting
the requirement that such a fair balance be struck between the fundamental rights
which must be reconciled”.
237
origin and distribution networks of the goods or services which infringe an intellectual
property right be provided by the infringer and/or any other
person who: … was found to be providing on a commercial scale services used in infringing
activities”.
233
Case C-580/13 Coty Germany ECLI:EU:C:2015:485, para 33.
234
Ibid., para 36.
235
Ibid., paras 37-39. The Court appeared particularly inspired by recital 17 in the preamble
to the Enforcement Directive, which similarly specifies: “The measures, procedures and
remedies provided for in this Directive should be determined in each case in such a manner as
to take due account of the specific characteristics of that case, including the specific features
of each intellectual property right and, where appropriate, the intentional or unintentional
character of the infringement.”
236
Ibid., paras 39-40.
237
Ibid., para 35. Unlike Husovec 2016, p. 257 I do not believe the Court in Coty Germany
substantially deviated from its course in Promusicae. According to Husovec Coty Germany
overturned the Court’s holding in Promusicae that Member States are not required to lay down
an obligation to communicate personal data for internet service providers (or in this case:
banks). He maintains that after Coty Germany laying down such an obligation is no longer
139
Finally, in Bastei Lübbe the Court had to consider German legislation which
permitted the owner of an Internet connection to escape liability for infringements
carried out using that connection, if they could name another family member who had
access to that connection, without having to specify how and when the Internet
connection was used by that family member. Specifically, under the German law, as
interpreted by the German Federal Supreme Court, the owner of an Internet
connection used for the infringement of copyright was presumed to be the infringer,
unless that connection was not sufficiently secure or knowingly made available to
others and the owner explains who else had access to that connection, without having
to specify the time and nature of such access if that other person concerns a family
member, having regard to the right to respect for family life. The CJEU recalled that
it follows from article 8(1) of the InfoSoc Directive and articles 3(1) and 3(2) of the
Enforcement Directive that Member States are required to provide for appropriate
remedies in respect of copyright infringements and that such measures must be
“effective, proportionate and dissuasive”.
238
It then considered that the question at
issue concerns the reconciliation of conflicting fundamental rights, namely the right
to an effective remedy and the right to intellectual property versus the right to respect
for private and family life, and that any interpretation and application of the law must
strike a fair balance between those rights.
239
In a fairly one-sided determination, the
Court held that if national legislation “has the effect of creating an obstacle to
[compelling] the providing and obtaining of evidence relating to the opposing party’s
family members, proving the alleged infringement of copyright and who was
responsible for that infringement are rendered impossible, and, consequently, the
fundamental rights to an effective remedy and to intellectual property … are seriously
infringed”.
240
Having repeated its consideration from Coty Germany that a serious
infringement of a right equates to disproportionality, it concluded that “an almost
optional. I believe this is based on an incorrect reading of both decisions. The Court recognized
already in Promusicae that the Enforcement Directive requires that the competent judicial
authorities may order that an intermediary discloses certain information identifying an
infringer to right holders. It merely added that Member States were not required to lay down
an obligation to communicate personal data (see Case C-275/06 Promusicae
ECLI:EU:C:2008:54, para 58). To put it differently, national courts should be in the position
to give an order requiring the communication of personal data, but Member States are not
required to implement a rule that a Court must give such an order every time it is requested.
In Coty Germany the national provision at issue prevented national courts from giving such
an order aimed at banks altogether. It was for that reason that the Court concluded that a
national provision to that effect was contrary to EU law. It does not follow from the Court’s
ruling that Member States are now required to lay down an obligation for an intermediary to
communicate personal data of an alleged infringer to the right holder, merely that courts are
in a position to give an order to that effect if the circumstances of the case at hand call for it.
238
Case C-147/17 Bastei Lübbe ECLI:EU:C:2018:841, para 37.
239
Ibid., paras 44-45.
240
Ibid., para 51.
140
absolute protection for the family members of the owner of an internet connection …
cannot … be considered to be sufficiently effective and capable of ultimately leading
to effective and dissuasive sanctions” within the meaning of article 8(1) of the InfoSoc
Directive.
241
Nevertheless, the CJEU made two caveats, which can both be related to
the necessity of requiring the disclosure of the information sought.
242
If right holders
have access to another effective remedy, “allowing them, in particular … to have the
owner of the internet connection in question held liable in tort”, such an absolute
protection seems permitted “for the purposes of preventing what was regarded as an
unacceptable interference with family life”. Secondly, the CJEU pointed out that there
might exist other means for the right holder to obtain the information sought, which
it was for the referring court to determine.
110. Prevention of further infringements. In a number of other judgments,
the CJEU considered the lawfulness in light of fundamental rights of certain remedies
aimed at preventing (further) infringements of copyright. In Scarlet Extended and
SABAM v Netlog the question was whether a national court could order
intermediaries, an internet access provider in Scarlet Extended and the operator of a
social networking platform in Netlog, to filter all communications passing through its
network for an unlimited time and at its own expense, to check for infringing content.
First, the CJEU concluded that such a measure was not compatible with the applicable
directives.
243
On top of that, the Court also ascertained whether that outcome would
strike a fair balance between the fundamental rights affected. The Court started by
pointing out that the right to protection of property is not “inviolable”, nor that it must
“be absolutely protected”, but that it must be balanced against the protection of other
fundamental rights.
244
The Court primarily focused on the potential interference with
the freedom to conduct a business of the intermediary. It concluded that the proposed
filtering measure would “result in a serious infringement of the freedom” of the
intermediary to conduct its business due to its broad scope, requiring a monitoring of
all communication passing through its networks and having no limitation in time.
245
For that reason such an order would not respect the requirement that a fair balance
241
Ibid, para 52.
242
Ibid., paras 53-54.
243
The E-Commerce Directive, the InfoSoc Directive, the Enforcement Directive, Directive
95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection
of individuals with regard to the processing of personal data and on the free movement of such
data and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002
concerning the processing of personal data and the protection of privacy in the electronic
communications sector.
244
Case C-70/10 Scarlet Extended v SABAM ECLI:EU:C:2011:771, paras 43-4 and Case C-
360/10 SABAM v Netlog ECLI:EU:C:2012:85, paras 41-2.
245
Case C-70/10 Scarlet Extended v SABAM ECLI:EU:C:2011:771, para 48 and Case C-360/10
SABAM v Netlog ECLI:EU:C:2012:85, para 46.
141
be struck, although the Court did not determine the impact of the lack of such a
measure on the right to property, nor the proportionality of the proposed measure in
light of alternative measures. These decisions form the origin of the rule, formulated
more explicitly in Coty Germany, that a measure creating a serious infringement of a
particular right is to be regarded as not respecting the requirement that a fair balance
be struck. Almost as an aside the Court noted that the proposed filtering mechanism
“may” also infringe the right to protect personal data and the right to receive or impart
information.
246
However, the Court did not clarify what the impact of those rights on
the fair balance assessment was, having already held that the freedom to conduct a
business was seriously infringed.
247
Interestingly, the Court did mention that the
freedom of information could be undermined because the filtering mechanism might
not be able to distinguish between lawful and unlawful content, implying a filtering
mechanism that would solely target unlawful communications would not undermine
the freedom of information.
In Telekabel the Court was confronted with the question whether EU fundamental
rights precluded a so-called outcome prohibition, that is an injunction prohibiting an
internet service provider from allowing its customers to access an infringing website,
but which does not specify the measures the provider must take. The Court concluded
that such an injunction was not precluded. First of all, the Court held that such an
injunction does not infringe the freedom to conduct a business of the provider. It did
so in a rather limited assessment, merely concluding that it “such an injunction does
not seem to infringe the very substance of the freedom [to conduct a business] of an
internet service provider”.
248
It reached this conclusion mainly because the provider
could avoid liability vis-à-vis the right holder by showing that it had taken all
reasonable measures. However, at the same time the Court maintained that those
measures must not be such as to infringe the right to freedom of information of the
customers of the internet service providers. It is in this regard that the duty to balance
conflicting right is shifted to the provider. It must ensure that its measure at the same
time does not unnecessarily deprive internet users of the possibility of lawfully
accessing information by being “strictly targeted” (that is, without affecting lawful
access), while it prevents or at least makes it difficult to achieve and seriously
discourages unauthorized access to protected subject-matter. Because of the
uncertainty this entails, creating the risk of a dispute with either the right holder or
246
Case C-70/10 Scarlet Extended v SABAM ECLI:EU:C:2011:771, para 50 and Case C-360/10
SABAM v Netlog ECLI:EU:C:2012:85, para 48.
247
As suggested by Mylly 2015, p. 115-116, this lack of guidance may be problematic for
instance in the event that an intermediary chooses not to invoke his freedom to conduct a
business and acquiesces to a measure similar to the one at issue.
248
Case C-314/12 UPC Telekabel Wien ECLI:EU:C:2014:192, para 51.
142
with its customers if its measures are too lenient in the first case or too severe in the
second, AG Cruz Villalón had concluded, contrary to the Court, that an outcome
prohibition itself did not strike a fair balance.
249
Importantly, the Court held that “the
national procedural rules” must enable users to oppose measures taken by an Internet
service provider if these create an “unjustified” interference with their right to
freedom of information.
250
Finally, in McFadden the Court was confronted with the question whether a national
court may grant an injunction requiring the operator of a public Wi-Fi network to
prevent copyright infringement by way of peer-to-peer sharing, if the only measures
that operator may in practice adopt are to password-protect the network, to terminate
it entirely or to filter all communications. It quickly discarded the latter two options
as unlawful.
251
However, the Court concluded that the third option, to force the
operator to password-protect their network and require their customers to reveal
their identities in order to obtain the password, strikes a fair balance between the right
to protection of property and the freedom to conduct a business and the right to
freedom of information. It reached that conclusion based on the following
considerations.
252
First, the CJEU held that such a measure would not damage the
essence of the freedom to conduct a business or the right to freedom of information.
Second, the Court considered that such a measure is suitable to dissuade users from
infringing copyright but would not prevent lawful access to information. Third, there
are no other potential measures that the operator could take, while the absence of any
measure would “deprive the fundamental right to intellectual property of any
protection”. Therefore, the measure was “necessary in order to ensure the effective
protection of the fundamental right to protection of intellectual property”. Important
to note is that the ultimate conclusion was that EU law did not “preclude” such an
injunction, although the preceding language (“deprive … of any protection”) could be
understood as suggesting that the right to property required it if one reads that
language as meaning that there would otherwise exist a serious infringement with that
right. “Necessary” in this case can therefore be understood in two ways. Either as
being necessary as a matter of EU law in order to provide effective protection of the
right to property, or as an expression of proportionality: the suggested remedy was
necessary as no less restrictive means where available. In the latter case it must be
249
Opinion of AG Cruz Villalón in Case C-314/12 UPC Telekabel Wien ECLI:EU:C:2013:781,
paras 85 et seq.
250
Case C-314/12 UPC Telekabel Wien ECLI:EU:C:2014:192, paras 56-57.
251
A filtering mechanism would amount to a general obligation to monitor, prohibited by art.
15(1) E-Commerce Directive, while termination of the network would constitute a serious
infringement of the freedom to conduct a business (Case C-484/14 McFadden
ECLI:EU:C:2016:689, paras 87-88).
252
Case C-484/14 McFadden ECLI:EU:C:2016:689, paras 91-99.
143
noted that any true balancing (as in: proportionality in the narrow sense) was absent.
Notably, AG Szpunar had rejected also the third alternative measure, considering,
inter alia, that it could prevent businesses from offering free Wi-Fi and users from
making use of it, because of the administrative burdens involved for both parties, that
it imposes “clearly disproportionate” costs on operators who merely offer Internet
access as an auxiliary service, and that such a measure “would not in itself be effective”
and “does not necessarily prevent infringements of protected works”.
253
He also added
that a general obligation to make a Wi-Fi network secure “could be a disadvantage for
society as a whole and one that could outweigh the potential benefits for
rightholders”.
254
4.4 Evaluation
111. Recapitulation. This chapter has illustrated the use of proportionality
analysis and balancing by the European Court of Human Rights and the Court of
Justice of the European Union, both in general and in the context of copyright.
Although both courts do not always approach questions of proportionality by neatly
distinguishing its constituent elements, those elements are definitely present. As far
as the ECtHR is concerned, the Court has shown a considerable degree of deference
and restraint in its review of decision-making by national authorities, including
courts, in cases concerning copyright. It may be that the Court will require an
interference with political expression before it will seriously question a finding of
copyright infringement in national proceedings. Beyond that, the quest for balance
will take place before national courts and the CJEU. In this regard, it must be once
more emphasized that the margin of appreciation that the ECtHR offers to national
authorities in this regard can inspire, but should not determine, the margin of
discretion offered by national courts to national legislatures. The same is true, for that
matter, for the CJEU when it reviews acts of the EU legislature.
In the case of the CJEU, the greatest impact of proportionality analysis/balancing has
not been in the context of review of EU legislation. Instead, this impact is arguably
felt strongest when the CJEU defines the rights and obligations of right holders and
users, and those of certain intermediaries, in the context of interpretation of EU law,
through the use of the concept of “fair balance”. In the remainder of this chapter I
discuss two specific problematic features of the CJEU’s case law: first, the assessment
of the intensity of interference by the CJEU and in particular its use of the concepts
of essence and very substance (Section 4.4.1) and, second, the nature of the balance
253
Opinion of AG Szpunar in Case C-484/14 McFadden ECLI:EU:C:2016:170, paras 137-147.
254
Ibid., para 148.
144
struck by the Court (Section 4.4.2). Finally, I consider the more general weaknesses
of the CJEU’s use of balancing (Section 4.4.3).
4.4.1 The essence of rights
112. The concept of essence. I observed that the concept of essence or, in its
prior incarnation, of “very substance” has played a progressively increasing role in the
case law of the CJEU. Although arguably initially used as a reflection of restraint on
the part of the Court, it has gradually transformed into an independent test,
performed prior to a proportionality analysis. This practice has been embraced by
article 52 of the EU Charter. This in spite of doubts of the usefulness of the concept,
as it is questionable whether a “core” of rights can really be independently identified.
Without entering into this debate too much, the idea of essence can probably be best
defined as a protection against violations so serious that no reasons can justify it,
which is ultimately a relative position, even if there will probably be little substantive
difference with an absolute conception of essence.
255
The only reason for having a
determination whether the essence thus conceived has been harmed prior to a
comprehensive proportionality analysis is that such an analysis is not needed because
the interference is so egregious that the outcome is evident from the outset. In other
words, there is no reason to give full reasons for the conclusion of the judgement. This
is only acceptable if there can be no reasonable disagreement about the outcome. If,
however, such disagreement is possible as to the answer to the question whether the
interference is serious enough that we can speak of a violation of the essence, a court
cannot escape a more thorough analysis justifying a finding of a disproportionate
interference, which a violation of the essence ultimately entails. If a court would skip
such an analysis, and simply conclude that a particular measure is unacceptable
because it violates the essence despite reasonable disagreement on the issue, the
rationality, transparency and ultimately acceptance of its judgment may suffer. In
light of these considerations, the use of the concept of essence by the CJEU can be
criticized, as will be explained in the remainder of this section.
Generally speaking, the CJEU appears to work with a very broad concept of essence.
For instance, in Sky Österreich the CJEU held that the measure under
consideration
256
did not affect the “core content” of the freedom to conduct a business
because it “does not prevent a business activity from being carried out as such by the
holder of exclusive broadcasting rights” and “does not prevent the holder of those
255
Cf. Brkan 2018, p. 363, who defends an absolute conception of essence but includes as part
of its definition the similar characteristic that “overriding reasons for such interference do not
exist”.
256
See, supra, § 87.
145
[exclusive broadcasting] rights from making use of them”, e.g. by broadcasting the
event themselves.
257
These are, properly speaking, balancing considerations. More
importantly, it is questionable whether this ostensibly subjective definition of essence
really captures violations of the freedom to conduct a business that can never be
justified. Would Member States where prostitution is currently legal, for instance, not
be permitted to prohibit it and close brothels, even though it prevents “a business
activity from being carried out as such”?
258
A broad concept of essence increases the risk, just identified, that a court decides an
issue without giving full reasons and thus without proper justification. Some of these
risks can be identified in the copyright case law of the CJEU discussed in the previous
section, notably when dealing with questions concerning the lawfulness of granting
certain remedies against intermediaries.
113. “Serious infringement” and essence. In Scarlet Extended and Netlog
the Court found a “serious infringement” with the freedom to conduct a business if
the requested injunction was granted. This, at first glance, is a balancing
consideration, suggesting that the degree of fulfilment of the right to (intellectual)
property in case the injunction were granted would be less than “serious”.
Nevertheless, the Court made no explicit considerations to that effect. This, in itself
also undermines the transparency and rationality benefits of balancing. However, in
Coty Germany and Bastei Lübbe we can witness a transformation of this standard.
There, the CJEU suggested that a serious infringement of a right always leads to
disproportionality. Moreover, it appears to be, together with the essence test, the only
standard applied. This creates a system in which a degree of interference is either
serious and disproportionate (regardless of the impact on the countervailing right or
interest) or not serious and proportionate.
Without further qualification this position is difficult to justify. It either treats rights
as minimum norms, or it represents an inconsistent use of a dyadic scale. The former
is true if the “serious infringement” test is viewed as an incarnation of the essence test
and no further proportionality analysis is conducted. It would permit considerable
limitations of rights that only negligibly contribute to the protection of the
countervailing principle.
259
The “serious infringement” test, may also indicate the
(inconsistent) use of a dyadic scale. That is to say, the degree of interference is
257
Case C-283/11 Sky Österreich ECLI:EU:C:2013:28, para 49.
258
On the problem of a subjective definition of the essence, which looks to the (non-)
enjoyment of the right by the particular right holder, see Tridimas & Gentile 2019, p. 804.
259
Cf. Alexy 2014, p. 59.
146
measured as either light/not serious or serious.
260
If it is serious, it outweighs the
countervailing right or interest. This is not likely. It would not explain why a serious
infringement immediately leads to disproportionality, without regard to the
hypothetical degree of fulfilment of the countervailing right or interest if the contested
measure is adopted. That degree may also be serious, resulting in a stalemate. There
is no reason, in a case of judicial review, to not grant discretion in those cases if the
conflict is between two fundamental rights of equal rank, as was arguably the case in
Scarlet Extended and in Netlog. And if the CJEU itself intends to strike an optimal
balance, it would in such a stalemate case need to move to finer scales. Moreover, if a
serious infringement leads to disproportionality, regardless whether the impact on
the countervailing right or interest may equally be qualified as serious, a consistent
application of this position should entail that a light infringement also leads to
disproportionality if the impact on the countervailing right or interest is also only
light. The “serious infringement” test should therefore be viewed as equivalent to the
essence test, reflecting a minimum level of protection.
Use of Charter rights as minimum norms was apparent in UPC Telekabel, in which
the CJEU simply considered that the outcome prohibition did not violate the essence
of the freedom to conduct a business and left it at that, concluding that it was not
contrary to EU law. This is not necessarily problematic if the national court is
permitted to subsequently conduct a full proportionality assessment, to ensure that
the burdens imposed on the intermediary are really commensurate with the benefits,
although given the fact that the outcome prohibition seems to be a conventional
procedural measure of Austrian law such a further assessment seemed unlikely.
261
As
a matter of principle, a mere check whether the “essence” of rights is not violated does
not take rights seriously as human rights ideals that deserve the greatest protection
possible. This does become problematic where and when the CJEU itself purports to
conduct a final determination of the conformity of a certain measure with
fundamental right norms. Moreover, it hurts the persuasiveness of judgments, if an
interference with a right that may be perceived as serious by some is simply dismissed
as not violating the essence of those rights. In this regard one can find fault with
judgements such as McFadden and Bastei Lübbe, in which the CJEU appears to
suggest a particular enforcement measure is required in order to avoid a serious
260
This is because the Court appears to only check for a serious infringement/interference. If
it applied a scale with more graduations, such as the triadic light/moderate/serious scale, a
moderate interference might equally lead to a finding of disproportionality where the degree
of fulfilment of the countervailing right can only be qualified as light.
261
Also critical is Angelopoulos 2014, p. 818 noting that “for all its postulating about the
importance of a ‘fair balance’, in its judgment, the court does not establish one, or even provide
guidance on how to reach one”.
147
infringement of the right to property, without proper regard for the countervailing
rights. In McFadden the Court simply dismissed concerns as to the interference with
the freedom to conduct a business and the right to freedom of information as not
affecting the essence of those rights nor preventing lawful access. More egregious, in
Bastei Lübbe the Court almost completely ignored the potential effect on the right to
respect for private and family life. It did recognize, at the very end, that requiring the
owner of an Internet connection to disclose information about their close family
members might be regarded as an “unacceptable interference with family life”, but
suggested this may only stand in the way of requiring the owner of an Internet
connection to disclose private information about the Internet use of a family member
if right holders have access to another effective remedy. Thus, without further
explanation, the Court suggests the serious infringement of the rights to an effective
remedy and to intellectual property will otherwise outweigh what may be regarded as
an unacceptable interference with family life.
On a final note, it is not unlikely that the Court uses the language of essence and
“serious infringement” to justify the conclusion it deems right or just, increasing the
scope of the essence where necessary. However, by foregoing a proper balancing
exercise, also in cases like Scarlet Extended and Netlog, where many may have agreed
with the outcome, it undermines the rationalizing power of a proper proportionality
analysis and ultimately the persuasiveness and predictability of its judgements.
4.4.2 The nature of balancing: review or optimization?
114. Review and optimization Balancing, I have argued, may take two forms.
When creating a norm, or defining its content, the norm maker, which can be a court,
will seek to strike an optimal balance between the interests to be reconciled in the
norm. This was called optimization balancing. By contrast, when reviewing such a
norm created by a primary decision-maker courts will typically not ask whether the
balance struck really represents an optimal balance, but will show deference and
restraint. This was called review balancing.
262
The character of proportionality analysis by courts, that is whether it is review
balancing or optimization balancing, has an important consequence. Review
balancing typically focuses on the conformity of a norm with a higher-order norm,
such as a constitution or a fundamental rights charter. If the outcome is that a
(hypothetical) measure is or would be disproportionate, it precludes the primary
decision-maker, often the legislature, from adopting it. Optimization balancing, as
conducted by courts, does not have this consequence. It typically does not concern
262
See, supra, § 57.
148
conformity with a higher norm, but a process of interpretation in the spirit of that (or
another) norm. A court, for instance, may have to consider the scope of a standard in
a specific provision of a sub-constitutional law, such as “fair practice”, “fair and
equitable” or “proportionate”.
263
In this regard it might pursue an interpretation that,
in its opinion, does most justice to the fundamental rights affected (as well as the other
relevant considerations to the standard). That is, the court must decide which right or
interest has priority over the other; it strikes the “optimal” balance given the
circumstances of the case. Similarly, a court may rely on an interpretation in
conformity with fundamental rights to determine the scope of an open textured rule.
In neither case does it mean that the legislature would be precluded from overturning
the balance thus struck by the court by laying down a norm to the contrary. The court
has merely given meaning to a norm where no explicit legislative choice had yet been
made. Such interpretations therefore do not entail a “lock-in” or “petrification” of the
law by creating a fundamental rights barrier to the overturning of that decision by the
legislature.
264
An important difference with optimization balancing as carried out by
legislatures is that courts normally have no policy discretion, i.e. they cannot choose
to pursue certain aims, nor the means to pursue them, or to what precise degree.
Instead courts are typically presented with a binary option: a certain state of affairs
falls within the scope of application of a norm, or it does not. The answer is still one
of optimization, that is one answer may be more optimal than the other, even if it will
be a rougher approximation of optimality than can be achieved by the legislature.
In EU law, a certain norm may be precluded or prescribed by primary law, including
the Charter, which means that neither the EU legislature nor Member State
authorities can deviate from it. Alternatively, that norm may be precluded or
prescribed by secondary law, meaning only Member State authorities cannot deviate
from it. As a rule, a proportionality analysis aimed at determining the conformity of a
norm with primary law is a matter of review. The use of proportionality analysis to
determine the scope of a norm laid down in secondary law will often be a matter of
optimization, but can also have the nature of review, for instance if a particular
interpretation is precluded entirely for creating a disproportionate interference with
a fundamental right. To complicate matters further, in many preliminary proceedings
about the compatibility of a certain (national) rule with both primary and secondary
law, it is not always obvious whether it is ultimately primary or secondary law that
precludes or permits that rule. This means it is often not clear whether the use of
balancing concerns merely the determination of the scope of a norm of secondary law
263
Cf. art. 5(3)(d) InfoSoc Directive and art. 3(1) and art. 3(2) of the Enforcement Directive,
respectively.
264
On this risk, see Husovec 2016, p. 268 and Mylly 2015, p. 127-128.
149
in the spirit of higher norms, only binding Member States, or the review for
conformity with primary law, notably the Charter. A final complicating factor is that
in some instances the CJEU delegates the proportionality analysis to national courts
without clarifying the nature of their obligations:
115. Interpretation of substantive copyright norms. Most cases
concerning the interpretation of exclusive rights and the limitations and exceptions
thereto are clear acts of optimization within the context of the interpretation of norms
of secondary EU law. In several of the cases discussed in § 104 and 105, the Court took
into account whether the negative effects of a certain interpretation are assuaged by a
more specific norm. Thus, in Renckhoff, it recognized that broad interpretation of
exclusive rights does not significantly interfere with a specific fundamental right, if
the use in question is (or may be) exempt by a limitation or exception. Similarly, the
CJEU will choose a broad interpretation of the terms of limitations and exceptions, if
such an interpretation achieves a greater degree of fulfilment of a particular
fundamental right, while not significantly interfering with the “substance of
copyright”, as the CJEU put it in DR & TV2 Danmark. In essence, it took such an
approach also in Painer, Afghanistan Papers, and Metall auf Metall.
Some cases are less clear. For instance, the role played by the concept of fair balance
in GS Media is extremely opaque. On the one hand, one could conclude that granting
exclusive control over hyperlinks to websites containing copyright protected subject-
matter disproportionately interferes with the right to freedom of expression and of
information. On the other hand, its reference to the concept of fair balance and to
fundamental rights can be considered independent arguments serving to support an
unorthodox conclusion, which arguably tries to reconcile the conflicting rights and
interests as well as possible. Similarly, its reliance on the concept of fair balance to
exclude certain interpretations in Ulmer and in Renckhoff is unclear. In both cases,
the fair balancing argument is left undeveloped and merely presented as a form of
conclusion. It is therefore unlikely either can be qualified as an instance of
fundamental rights review.
116. The role of national courts. The precise nature of the task imposed by the
CJEU on national courts in Deckmyn to ensure that the application of the parody
exception preserve a fair balance is also unclear.
265
That task could be one of review,
meaning national courts merely have to ascertain whether their judgements create a
disproportionate interference with fundamental rights that are potentially affected by
it. Some commentators have interpreted Deckmyn in this way and argue that it means
265
Discussed in § 106.
150
that national courts in Member States that have chosen not to implement the parody
exception may nevertheless have to permit the parody in question if not doing so
would disproportionately restrict the right to freedom of expression.
266
Alternatively,
the task the CJEU intended to impose on national courts could be one of optimization.
In that case, national courts, on top of verifying that the (use of the) purported parody
in question fulfils the constituent conditions of the concept of parody as identified by
the CJEU, merely have to decide whether, given the circumstances of the case, the
rights and interests of the user outweigh those of the right holder. An instruction to
“optimize” arguably follows from the fact that the Court transformed the prohibition
of discrimination into an interest of the right holder not to be associated with a parody
with a discriminatory message, which interest itself must be weighed against the right
to freedom of expression. Consequently, national courts must determine, “in the light
of all the circumstances of the case”, whether this interest outweighs the right to
freedom of expression.
267
117. Enforcement and intermediaries. Greater uncertainty exists about the
character of balancing or proportionality analysis conducted by the CJEU in the cases
concerning the appropriateness of certain enforcement measures against
intermediaries, discussed in Section 4.3.2.3(iii). Typically, those cases principally
concern the interpretation of the Enforcement Directive and article 8 of the InfoSoc
Directive. The first paragraph of that article 8, as well as article 3(2) Enforcement
Directive, requires remedies to be “proportionate”. Moreover, article 3(1) requires
remedies to be “fair and equitable”. This raises the question whether decisions such
as Scarlet Extended, Netlog, Coty Germany and Bastei Lübbe ultimately concern the
mere concretization of those open norms, albeit couched in fundamental rights
language, and therefore are only binding on the Member States. This is, in essence,
what Martin Husovec and Lisa van Dongen argue in a not yet published paper. They
suggest that the CJEU in these cases “optimizes the fairness outcome” within the
context of the interpretation of secondary law and makes no pronouncement
concerning the constitutionality of the measures under consideration.
268
266
Cf. Griffiths 2017, p. 13-14, Husovec 2016, p. 260-261, Sganga 2019, p. 688 and Voorhoof
2015, p. 351, n 76.
267
Case C-201/13 Deckmyn and Vrijheidsfonds ECLI:EU:C:2014:2132, para 32. Cf., in this
sense, the Opinion of AG Szpunar in Case C-469/17 Funke Medien NRW (Afghanistan Papers)
ECLI:EU:C:2018:870, para 69, who notes that “[t]he course of action taken in the case giving
rise to the Deckmyn and Vrijheidsfonds judgment was based on the presumption of the
applicability of the exception in question (for parody). At issue was whether it was possible for
that exception not to be applied, because the legitimate interests of the relevant copyright
holders opposed that application” (footnote omitted). This cannot be a question of
fundamental rights review, simply because the right holders’ interest is not protected as such.
268
Husovec & Van Dongen (draft on file with the author).
151
For instance, in Coty Germany the CJEU found a “serious infringement” of the rights
to an effective remedy and to intellectual property, but did so explicitly “in the context
of Article 8 [of the Enforcement Directive]”.
269
This may indicate that the scope of
protection of the fundamental right to intellectual property vis-à-vis a Member State
is (partially) determined by the availability of enforcement measures prescribed by
EU law, principally the Enforcement Directive and article 8 of the InfoSoc
Directive.
270
Fundamental rights are thus used to reinforce the conclusion reached on
the basis of the interpretation of the Directive, rather than as a truly independent
interpretive tool or argument. Such a use of fundamental rights can be compared to
that in Luksan, in which the CJEU similarly concluded that a Member State which
does not offers the principal director of a cinematographic work the rights to exploit
it which it must grant them in accordance with the applicable EU directives
simultaneously violates the right to intellectual property of article 17(2) EU Charter.
271
Similarly, one could argue that the CJEU merely concretized what can be considered
a proportionate remedy within the meaning of the Enforcement and InfoSoc
Directives in judgements such as those in Scarlet Extended and Netlog. This may be
unlikely, however, given that the Court conducts the proportionality analysis entirely
independently from and in addition to its interpretation of the applicable directives.
Moreover, even if this balancing took place within the context of interpretation of
secondary law, this does not necessarily mean it cannot have the character of review.
That is to say, the Court can consider that a certain interpretation of secondary law is
precluded because it would constitute a per se disproportionate interference with a
fundamental right. In this regard it must be recalled that the Court held that the
proposed injunctions would lead to a “serious infringement” of the freedom to
conduct a business. It was suggested in the previous subsection that this is akin to
finding a violation of the essence of the right, that is to say a degree of interference
which cannot be justified. This means that this interpretation of the limitations
imposed on the available remedies by fundamental rights has a clear proscriptive
character, also vis-à-vis the (EU) legislature. The same may be true for other
judgements in which the CJEU concludes that (the lack of) a certain measure would
result in a serious infringement or a violation of the essence of a fundamental right,
even if the Court connects such findings to the requirements of a specific directive.
One can consider this a further indictment of the Court’s loose qualifications of certain
states of affairs as a “serious infringement” or as a violation of the essence of a right.
269
Case C-580/13 Coty Germany ECLI:EU:C:2015:485, para 40.
270
See for a similar (questionable) relationship between the scope of protection under the EU
Charter and secondary law, infra, Chapter 6, n 60 and accompanying text.
271
Case C-277/10 Luksan ECLI:EU:C:2012:65, paras 68-70. See also, infra, § 130.
152
Other times the force of the fundamental rights arguments is unclear for other
reasons. In McFadden the CJEU concluded that EU law does not “preclude” an
injunction requiring an operator of a public Wi-Fi network to password protect its
network and require its users to disclose their identities. The Court did not hold that
a national court, so requested, must grant such an injunction if it is the only way to
prevent the illegal communication to the public of copyright protected subject-matter.
Nevertheless, the CJEU considered that if such an injunction is not granted right
holders would be deprived of “any protection” and that such a measure is therefore
“necessary in order to ensure effective protection”.
272
The lack of “any protection”
appeared to lead to a finding of a “serious infringement” in Coty Germany and Bastei
Lübbe. Thus, one may wonder whether the grant of such an injunction really is
optional for Member States.
118. The importance of conceptual clarity. The fact that the qualification of
the nature of the proportionality analysis can be of immediate relevance to the
legislative process is illustrated by the adoption of the DSM Directive. Article 13 of the
original proposal would have required (after Member State implementation) at least
certain “information society service providers” to implement a filtering system very
much similar to the one scrutinized by the CJEU in Scarlet Extended and Netlog.
273
It appears the EU legislature has attempted to mitigate the risk for incompatibility
with the EU Charter in this regard by instead adopting a vague obligation for “online
content-sharing service providers” to make “best efforts” to avoid the availability of
copyright protected subject-matter.
274
One could argue that the uncertainty of the
scope of the obligation being thrust upon providers to avoid liability for works
uploaded to their services by users in itself may constitute a disproportionate burden,
similar to the conclusion of AG Cruz Villalón in UPC Telekabel that an outcome
prohibition was disproportionate. The compatibility of the DSM Directive with
272
Case C-484/14 McFadden ECLI:EU:C:2016:689, paras 98-99.
273
For a criticism in light of Scarlet Extended and Netlog, see Angelopoulos 2017b, p. 38-40.
274
Art. 17(4)(b) of the DSM Directive specifies that “online content-sharing service providers”
can avoid liability if they have demonstrate that they have “made, in accordance with high
industry standards of professional diligence, best efforts to ensure the unavailability of specific
works and other subject matter for which the rightholders have provided the service providers
with the relevant and necessary information”. Art. 17(5) adds that this obligation should be
construed in light of the principle of proportionality as well as a variety of other factors, such
the size of the service and the cost for service providers. Moreover, recital 66 in the preamble
to that directive adds that this obligation may not lead to a general obligation to monitor and
recognizes that in certain cases a provider will have made its “best efforts” if it removes
infringing content upon notification of right holders.
153
fundamental rights will not be discussed further, lying outside the scope of this
study.
275
4.4.3 The (lack of a) CJEU methodology
119. General criticism. This section concludes this chapter with some more
general observations about the CJEU’s inconsistent use of balancing. The use of
balancing rhetoric in copyright, both generally and by the CJEU, has been sharply
criticized. This criticism mirrors that aimed at balancing generally, discussed in
Section 3.3. Principally, conceptualizing copyright as a balance, in general or
specifically between fundamental rights, has been rejected for its arguable vagueness.
The criticism asserts that the balancing paradigm is incapable of explaining how the
“correct” balance in a concrete case should be established. Alexander Peukert, for
instance, has lamented the lack of “normative criteria [according to which] a conflict
between fundamental rights is to be resolved”
276
and Robert Burrell and Allison
Coleman have argued that “[the notion of balance] tells us very little about how to
proceed in practice[,…] how weight is to be attributed to differing interests or even as
to which interests are to enjoy a place on the scales”.
277
In the words of Abraham
Drassinower: “[T]he concept of balance cannot support the weight it is asked to bear
in copyright jurisprudence.”
278
Tom Bell and Tuomas Mylly have voiced the familiar
incommensurability objection to balancing.
279
Finally, Helfer, reviewing the
intellectual property case law of the ECtHR, has argued that that the existing
European positive legal framework does not provide a “coherent blueprint” to allow
courts to impose both lower and upper limits on intellectual property protection based
on a balancing of different rights, meaning balancing decisions will inevitably be ad
hoc decisions.
280
Insofar as these arguments do not differ from the general criticism levelled at
balancing, they need no separate rebuttal. However, insofar as the vagueness
objection is more directly aimed at the concrete use made of balancing by the CJEU,
the previous sections have hopefully illustrated the Court’s approach is hardly free
from criticism. One must agree with Jonathan Griffiths when he states concerning its
275
Poland has announced that it will challenge article 17, although has at the time of writing
not made the text of the complaint public. See Targosz 2019.
276
Peukert 2015, p. 135
277
Burrell & Coleman 2005, p. 190.
278
Drassinower 2009, p. 992. He wrote in particular about the rejection, in the name of
balance, of the Canadian Supreme Court of the sweat of the brow doctrine in favour of the skill
and judgement standard in CCH Canadian Ltd. v. Law Soc'y of Upper Can., [2004] 1 S.C.R.
339. See, in particular, p. 995-999. See also, infra, Section 6.3.
279
Bell 2001, p. 787, Mylly 2009, p. 23-24 and Mylly 2019, p. 272-275.
280
Helfer 2008, p. 49.
154
use by the CJEU in copyright cases that “the concept of the ‘fair balance’ is, without
further elucidation, vacuous and unhelpful”.
281
Similarly, Tuomas Mylly has added
that if the CJEU does not go beyond merely emphasizing that a fair balance must be
struck, “’balancing’ remains an empty slogan merely giving fundamental rights gloss
to the CJEU case law”.
282
These objections reiterate the need for the CJEU to develop
and use consistently, in those situations that call for it, a balancing framework that
ensures rational decision-making, spelling out the normative arguments at stake and
the reasons for giving those arguments a particular weight.
120. Methodological problems. Generally speaking, the CJEU appears to have
a fairly well-developed approach to proportionality analysis. However, when it comes
to the application thereof in copyright cases there is a noticeable lack of transparency
and consistency. This was, first of all, apparent in Metronome and Laserdisken,
concerning the review of the validity of EU secondary law.
283
Arguably more
problematic, however, is the CJEU’s use (and non-use) of the concept of fair balance
in in cases which essentially concern the horizontal (indirect) effect of fundamental
rights, discussed in Section 4.3.2.3, as well as those in which the CJEU seems to try to
strike a fair balance without doing so explicitly, discussed in Chapter 2.
Balancing has been defined as a process by which the relative weight of various,
competing normative arguments is determined in order to decide which of those
arguments should prevail. The predominant problem with the CJEU’s use of the
concept of fair balance is a lack of a consistent definition of the normative arguments
that compete for priority. This is particularly evident in those rulings dealing with the
scope of exclusive rights and limitations and exceptions thereto. The CJEU’s starting
point is often Recital 31 in the preamble to the InfoSoc Directive, which itself merely
notes that “[a] fair balance of rights and interests between the different categories of
rightholders, as well as between the different categories of rightholders and users of
protected subject-matter must be safeguarded”, without specifically clarifying the
content of those “rights and interests”. In particular the normative content of the
“rights and interests” of right holders is not clearly defined. Sometimes, they are not
defined at all, as in Ulmer. In DR & TV2 Danmark the CJEU simply referred to the
“substance of copyright”. In Painer it referred to the author’s reproduction right. In
its more recent cases, including GS Media, Renckhoff and the three judgements from
29 July 2019, the CJEU has started to refer to the “interest” of authors and related
rights holders in the protection of their intellectual property guaranteed by article
281
Griffiths 2013a, p. 74.
282
Mylly 2015, p. 130.
283
See, supra, § 99 & 100.
155
17(2), although in the latter three judgements the CJEU also noted that national
courts must balance the “exclusive rights of the author”.
284
Somewhat more consistent and less contentious are the references to the right to an
effective remedy and to intellectual property in cases concerning the availability of
certain enforcement measures against intermediaries. However, the assessment of
the degree of fulfilment/interference with these rights is often problematic, in
particular where the CJEU limits itself to a (non-)finding of a serious interference or
an interference with the essence. Similarly, there is often a notable lack of full
consideration for the competing fundamental rights affected. Sometimes affected
rights are not mentioned at all.
285
This invites the suggestion that the Court’s
assessment proceeds from a certain bias.
286
If balancing is to guide decision-making, it should be first and foremost clear what is
being balanced. Moreover, judges must consider both sides of the balance and adduce
good reasons why they decide like they do, taking into account the intrinsic
importance of the principles they balance, the degrees of fulfilment and interference
created with the respective principles, and the possible uncertainties of the underlying
premises. If balancing is used in this manner, it can in principle play a role at two
stages in the course of interpretation and application of norms that determine the
scope of protection. First, during the interpretation and application of exclusive rights
and of the limitations and exceptions to those rights and, second, when determining
whether to grant a particular remedy.
These general observations will be further explored in the following part of this
dissertation.
284
For specific references, see Section 4.3.2.3(ii).
285
Cf. Mylly 2015, p. 126-127 and Teunissen 2018, p. 592, who specifically points to the lack of
concern by the CJEU for the rights to privacy and data protection in McFadden.
286
Cf. Mylly 2019, p. 276.
156
PART III – STRIKING A FAIR BALANCE IN EU
COPYRIGHT LAW
Part I concerned the use of discretion inherent in the acquis communautaire by the
CJEU in determining the scope of copyright protection. I concluded that, often
implicitly, the CJEU appears to balance the objective of ensuring a reward to right
holders with competing considerations without making this process obvious. Part II
took a closer look at the concept of balancing, both from a theoretical perspective and
as used by the ECtHR and the CJEU. It concluded with the observation that even when
the CJEU explicitly refers to the concept of fair balance it is not clear why its decision
necessarily is in the interest of a fair balance. It is nevertheless clear that balancing,
in particular of fundamental rights, plays an important role in determining the scope
of the rights and obligations of right holders and of users. In particular, the CJEU has
clarified that as a matter of principle both the interpretation and application of
substantive copyright norms must aim at striking a fair balance of rights and interests.
This part of the dissertation zeroes in on how this may take place in practice. It
commences, in Chapter 5 with an elaborate discussion of the principles and objectives
that form the basis of EU copyright law. Chapters 6 and 7 discuss, respectively, how
fundamental rights may, first, impact the interpretation and application of norms of
copyright itself and, second, act as independent external constraints on (the
enforcement of) copyright.
157
5 THE PRINCIPLES UNDERLYING EU COPYRIGHT LAW
5.1 Introduction
121. Introduction. Balancing, as I have defined it, is principally concerned with
establishing the priority between different normative arguments or “principles”. This
entire process is nonsensical if one does not have a clear understanding of which
principles are placed on the balance. Often it will be clear which rights on the user
side are affected, such as the right to freedom of expression and of information, the
right to education, the right to respect for private and family life and the freedom to
conduct a business. Less clear, however, is which principles undergird the protection
of authors and holders of rights related to copyright and how their relative weight is
determined.
This chapter focuses on the question which “rights and interests” of authors and other
right holders should influence the determination of the “fair balance of rights and
interests” during the interpretation and application of exclusive rights and of
limitations and exceptions, and how their relative weight should be determined. In
essence, this is the question as to the legitimate purpose of copyright law. The chapter
starts with a discussion of the constitutional foundations of copyright (Section 5.2). It
then shifts focus to the intention of the EU legislature, in order to identify the
objectives underlying modern EU copyright law (Section 5.3). Based on an
identification of three categories of objectives, this chapter continues with the
identification of the relevant factors for determining the degree of fulfilment of these
objectives (Section 5.4). It concludes with a brief discussion of the question which
further rights and interests might affect the balancing determination (Section 5.5) and
a synthesis of the findings of this chapter (Section 5.6).
5.2 The constitutional foundations of copyright
122. Outline. This section first discusses the right to property as a foundation for
the protection of authors and related right holders (Section 5.2.1) and then the specific
right of the author to receive protection of the moral and material interests in their
creation (Section 5.2.2).
5.2.1 Copyright as (constitutional) property
123. Protection of possessions. Everyone is entitled to protection of their
possessions. This follows from article 1 of the First Protocol to the ECHR (“1P1”).
Similar protection is afforded by article 17(1) of the EU Charter. The central question
of this sub-section is whether the constitutional right to property can serve as a useful
158
basis for determining the content of the rights and obligations of right holders and of
users. Article 1P1 and article 17 are discussed in turn.
5.2.1.1 Article 1P1 ECHR
124. 1P1. Article 1P1 provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions.
No one shall be deprived of his possessions except in the public interest and subject
to the conditions provided for by law and by the general principles of international
law.
The preceding provisions shall not, however, in any way impair the right of a State to
enforce such laws as it deems necessary to control the use of property in accordance
with the general interest or to secure the payment of taxes or other contributions or
penalties.”
The ECtHR has derived three rules from article 1P1.
1
First, in general, it guarantees a
peaceful enjoyment of property (first sentence). Second, it protects against
deprivations of possessions (second sentence). Third, it permits states to regulate the
use of property in the general interest (third sentence). These rules are connected and
often the ECtHR does not distinguish clearly between them. Any interference will in
principle be evaluated on the basis of the fair balance test. Nevertheless, whether an
interference may qualify as a deprivation or as a control of use, may be important, as
the ECtHR has held that without the payment of compensation a deprivation can in
principle not be justified.
2
A deprivation typically implies a formal transfer of
ownership has taken place but can also consist of a de facto expropriation amounting
to the same.
3
Such is not the case if the owner retains some economic interest in his
possession, meaning that the “deprivation” of only certain elements of the rights will
typically be categorized as a control of use.
4
125. Existing possessions. Article 1P1 does not give a right to acquire property.
5
In principle, it only protects existing possessions or, in certain circumstances,
legitimate expectations to obtaining such possessions. The latter may be the case only
if there is “a sufficient basis for the interest in national law, for example where there
is settled case-law of the domestic courts confirming its existence”.
6
Possessions
1
Decision of the European Court of Human Rights (Plenary), in the case of Sporrong and
Lönnroth v. Sweden, Appl. No. 7151/75 and 7152/75, of 23 September 1982, para 61.
2
E.g. Decision of the European Court of Human Rights (Plenary), in the case of James and
Others v. The United Kingdom, Appl. No. 8793/79, of 21 February 1986, para 54.
3
Decision of the European Court of Human Rights (Plenary), in the case of Sporrong and
Lönnroth v. Sweden, Appl. No. 7151/75 and 7152/75, of 23 September 1982, para 63.
4
Cf. Decision of the European Court of Human Rights (Chamber), in the case of Tre Traktörer
Aktiebolag v. Sweden, Appl. No. 10873/84, of 7 July 1989, para 55.
5
E.g. Decision of the European Court of Human Rights (Grand Chamber), in the case of
Anheuser-Busch Inc. v. Portugal, Appl. No. 73049/01, of 11 January 2007, para 64
6
Ibid., para 65.
159
within the meaning of article 1P1 are not only physical goods, but also other “assets”.
7
Such assets must be “sufficiently established to be enforceable”.
8
Economic rights
granted by national copyright law to authors and holders of related rights certainly
qualify as possessions. Right holders are entitled to protection of such rights as
recognized by the law. Accordingly, the ECtHR had no trouble to find an interference
with a possession in Bălan v. Moldova and in SIA AKKA/LAA, discussed in § 83. In
the latter the ECtHR considered that “[i]n the case of non-physical assets” the Court
considered “in particular, whether the legal position in question gave rise to financial
rights and interests and thus had an economic value”.
9
126. Foundation in law. The possession or the legitimate expectation to obtain
a possession must have an existing foundation in national law. As far as authors and
holders of related rights are concerned, it therefore appears unlikely that article 1P1
can serve as a basis for an argument for the introduction of new rights or that the
existing level of protection is too low. In the words of the ECtHR: “[T]he hope of
recognition of a property right which it has been impossible to exercise effectively
cannot be considered a ‘possession’”.
10
Support for the conclusion that article 1P1 cannot be used to argue for more extensive
copyright protection than currently provided for by law can be found in Dima v.
Romania. Dima had created a concept for new Romanian national emblem after
participating in a public competition in 1990. A revised design, made by Dima after
consulting with an historian and a heraldry expert was adopted in 1992 by the
Romanian Parliament as the emblem and seal of Romania. Never having been
remunerated for his work, Dima sought to enforce copyright in the emblem. The
Romanian Supreme Court ultimately rejected his claim, asserting that the law in force
at the time of creation of the emblem did not recognize such subject-matter as the
object of copyright protection and that, moreover, the Parliament would be
recognized as the author of the work. Since the law was ambiguous as to whether
emblems were protected by copyright, the ECtHR held that Dima had neither a
possession protected by article 1P1, nor a legitimate expectation to acquire such a
possession. The Court denied the existence of a legitimate expectation if there is a
7
E.g. Decision of the European Court of Human Rights (Grand Chamber), in the case of
Iatridis v. Greece, Appl. No. 31107/96, of 25 March 1999, para 54 and Decision of the
European Court of Human Rights (Fourth Section), in the case of Bălan v. Moldova, Appl. No.
19247/03, of 29 January 2008, para 31.
8
E.g. Decision of the European Court of Human Rights (Chamber), in the case of Stran Greek
Refineries and Stratis Andreadis v. Greece, Appl. No. 13427/87, of 9 December 1994, para 59
9
Decision of the European Court of Human Rights (Fifth Section), in the case of SIA
AKKA/LAA v. Latvia, Appl. No. 562/05, of 12 July 2016, para 54.
10
Decision of the European Court of Human Rights (Fourth Section), in the case of Bălan v.
Moldova, Appl. No. 19247/03, of 29 January 2008.
160
dispute as to the correct interpretation and application of national law.
11
As already
noted, there must be “a sufficient basis … in national law” for that expectation to be
legitimate.
National courts are thus left largely unconstrained by article 1P1 when they are giving
shape to the law. Only if the courts’ determinations are arbitrary or manifestly
unreasonable may the ECtHR decide to step in and consider whether such
determinations nonetheless constitute a deprivation of a possession.
12
Thus, when
courts consider that the interpretation of a norm, such as an exclusive right, strikes a
fair balance, they need not take account of article 1P1, because that provision does not
safeguard a legal position that does not exist yet. Only once the interpretation of a
norm has been settled, can it form the basis for possessions (or legitimate
expectations). Similarly, the application of open norms will typically not interfere with
any (legitimate expectation to acquire a) possession.
However, once the meaning of a norm has been sufficiently fleshed out, courts can in
principle not refuse to apply that norm or refuse to enforce the rights contained in
that norm in the way prescribed by law without interfering with the right to peaceful
enjoyment of one’s possessions. Such an interference would arguably not be outright
prohibited, but would need to be justified by a legitimate general interest (arguably
including the protection of the rights of others). Importantly, this interference must
maintain a fair balance between the right to peaceful enjoyment and countervailing
interest, in that no “excessive burden” may be placed on the right holder. That a
refusal to enforce, in the absence of a sufficient justification, constitutes a violation of
article 1P1 was also the ultimate conclusion in the aforementioned decision Bălan v.
Moldova. It is also in this context that one should understand references to article 1P1
in Ashby Donald and Neij and Sunde Kolmesoppi, discussed in § 84. The ECtHR
granted the states in question a particularly wide margin of appreciation in part
because they had to balance both the right to freedom of expression and the right to
protection of property. All this means, and can mean, is that states must consider
possessions and legitimate expectations thereto that have an existing basis in national
law. Arguably, such a basis existed in both cases.
13
11
Decision of the European Court of Human Rights (First Section), in the case of Dima v.
Romania, Appl. No. 58472/00 of 26 May 2005.
12
See e.g. Decision of the European Court of Human Rights (Second Section), in the case of
Melnychuk v. Ukraine, Appl. No. 28743/03, of 5 July 2005.
13
One could argue that the scope of the exception on which the defendants relied in Ashby
Donald was contested and that therefore no legitimate expectation worthy of protection under
art. 1P1 existed. However, the exception was introduced after the infringing acts had occurred,
meaning at that time there was an interference with a possession.
161
To conclude, article 1P1 cannot serve as a useful basis for determining the content of
the rights and obligations of right holders and of users. It can, however, affect the
enforcement stage, since article 1P1 not only requires states abstain, in principle, from
interfering in the peaceful enjoyment of possessions, it also imposes a positive
obligation on them the provide a system that enables the enforcement of property.
14
This issue will be more generally addressed in Chapter 7. Finally, article 1P1 also
covers the legislative abolition of rights or a reduction of their scope.
15
This will not be
addressed further.
5.2.1.2 Article 17 EU Charter
127. Article 17 vs. 1P1. Article 17 provides:
“1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully
acquired possessions. No one may be deprived of his or her possessions, except in the
public interest and in the cases and under the conditions provided for by law, subject
to fair compensation being paid in good time for their loss. The use of property may
be regulated by law in so far as is necessary for the general interest.
2. Intellectual property shall be protected.”
It should be noted that recognition of the right to property as a general principle of
EU law predates the Charter. In Nold and, more explicitly, Hauer the CJEU
recognized this right as a fundamental right that is part of the constitutional traditions
common the Member States.
16
Article 52(3) EU Charter specifies the relationship between Charter rights and ECHR
rights: “In so far as this Charter contains rights which correspond to rights guaranteed
by the Convention for the Protection of Human Rights and Fundamental Freedoms,
the meaning and scope of those rights shall be the same as those laid down by the said
Convention. This provision shall not prevent Union law providing more extensive
protection.” AG Bot suggested in Sky Österreich that article 17(1) corresponds to
article 1P1 and that therefore “the right of property protected by Article 17 of the
Charter has the same meaning and scope as under the ECHR”.
17
Does this mean that,
like under article 1P1, the article 17 similarly does not elevate copyright itself to a
fundamental right, but merely protects existing entitlements under law? This
conclusion does not necessarily follow. The second sentence of article 52(3) explicitly
permits that protection offered by the Charter may exceed that offered by the ECHR.
This may in particular be the case if the EU already offered a higher level of protection
14
Cf. Helfer 2008, p. 40 et seq.
15
Cf. Griffiths & McDonagh 2013, p. 90-91.
16
Case 4/73 Nold KG v Commission ECLI:EU:C:1974:51, para 12 et seq. and Case 44/79 Hauer
v Land Rheinland-Pfalz ECLI:EU:C:1979:290, para 17 et seq.
17
Case C-283/11 Sky Österreich ECLI:EU:C:2013:28, para 28
162
at the time of promulgation of the Charter.
18
More important in regard to the
protection of intellectual property, however, is that article 17(2) EU Charter somewhat
enigmatically declares that “Intellectual property shall be protected”.
(i) Article 17(1) of the EU Charter
128. Article 17(1). Does the protection offered by the EU right to property deviate
from that of article 1P1? As to the general protection offered by article 17(1), this is not
very likely. Although the CJEU did consider in Metronome and Laserdisken that the
interference with the fundamental rights in question caused by an increase in the level
of copyright protection was justified by the need to protect (industrial and
commercial/intellectual) property, one should understand these considerations
within the context in which they were made, that is the Court’s woefully inadequate
argumentation as to the proportionality of the contested measures.
19
In Sky
Österreich the CJEU aligned article 17(1) with article 1P1 by considering that the
protection granted by the former “applies to rights with an asset value creating an
established legal position under the legal system, enabling the holder to exercise those
rights autonomously and for his benefit.”
20
Consequently, the contested provision of
EU law on the basis of which broadcasters are free to make short news reports on
events of high interest to the public that are subject to exclusive broadcasting rights,
without the licensee having a right to demand compensation beyond the cost of access,
does not constitute an interference with a possession if the license was obtained after
that provision took effect.
21
In other words, article 17(1) does not offer a basis for
protection of immaterial rights beyond the protection offered by law.
22
Article 17(1) EU Charter thus protects “established legal positions” with an asset value
under copyright law. In line with the protection offered by the ECHR, this entails
protection of exclusive rights whose scope is clear and to the extent as their exercise
is not subject to limitations and exceptions. As long as the scope of rights (or the
limitations or exceptions thereto) is unclear as regards a particular use there can be
no legitimate expectations to have a property right and hence no protection of “the
right to property”. In delineating the scope of exclusive rights and limitations and
exceptions article 17(1) thus has no role to play.
18
Cf. Working group II, Incorporation of the Charter/ accession to the ECHR, Final report of
Working Group II (Brussels, 22 October 2002, CONV 354/02), p. 7.
19
See, supra, Section 4.3.2.2.
20
Case C-283/11 Sky Österreich ECLI:EU:C:2013:28, para 34.
21
Ibid., paras 36-40.
22
On Sky Österreich, see also, supra, § 87.
163
(ii) Article 17(2) of the EU Charter
129. Article 17(2). The introduction of article 17(2) does raise the question
whether the EU Charter requires, as a fundamental right of the author and the
addressees of related rights, a certain level of protection. This was likely not the intent
of the drafters of the Charter. The explanation on article 17 explains that intellectual
property as an object of protection of the right to property is explicitly mentioned
“because of its growing importance”.
23
Accordingly, the explanation adds, “[t]he
guarantee laid down in paragraph 1 shall apply as appropriate to intellectual
property”.
24
Nevertheless, even if it was not the intention to create an obligation to
provide a certain level of intellectual property protection, the provision is open to
interpretation by the CJEU, which could read in it precisely such an obligation due to
its open texture.
25
130. IP as a possession. The CJEU typically refers to article 17(2) in the context
of enforcement proceedings.
26
The reference to the right to property in this context is
not surprising, since this will often concern the protection of (the legitimate
expectation to having) a possession. Appropriately, but unsurprisingly,
27
the CJEU
has pointed out that there is “nothing whatsoever in the wording of [article 17(2)] or
in the Court’s case#law to suggest that that right is inviolable and must for that reason
be absolutely protected”.
28
In Luksan the CJEU appeared to confirm the protection of intellectual property under
the Charter is like other forms of property. The Court was confronted with the
question whether the Austrian law that allocated certain exploitation rights to the
producer of a cinematographic work, instead of to its director, was in conformity with
EU law. The Court concluded that EU law designated the director as the author of a
cinematographic work and that the director in his capacity of author is entitled to the
exploitation rights at issue. It further bolstered its conclusion with a reference to
article 17 of the EU Charter. The Court held that since the director was granted
23
Explanations relating to the Charter of Fundamental Rights (2007/C 303/02), explanation
on article 17.
24
Ibid.
25
Cf. Mylly 2005, p. 206.
26
See the case law discussed, supra, in Section 4.3.2.3(iii).
27
Cf. Mylly 2015, p. 124 : “Could the Court have said anything less? In Scarlet, could it have
said that the wording of Article 17(2) suggests that that right is inviolable and must for that
reason be absolutely protected?”
28
Case C-70/10 Scarlet Extended v SABAM ECLI:EU:C:2011:771, para 43; Case C-360/10
SABAM v Netlog ECLI:EU:C:2012:85, para 41 and Case C-314/12 UPC Telekabel Wien
ECLI:EU:C:2014:192, para 61. See also, Case C-469/17 Funke Medien NRW (Afghanistan
Papers) ECLI:EU:C:2019:623, para 72; Case C-476/17 Pelham and Others (Metall auf Metall)
ECLI:EU:C:2019:624, para 33 and Case C-516/17 Spiegel Online ECLI:EU:C:2019:625, para
56.
164
exploitation rights by EU law, a national law denying them those rights would
constitute a deprivation of property. The Court referred to article 17(2) in the context
of its discussion of the right to protection of property as provided for by article 17(1).
29
This indicates that the CJEU may view paragraph 2 merely as the explicit
confirmation that possessions arising under intellectual property legislation are to be
protected as property under paragraph 1.
30
However, the CJEU’s conclusion that the
Austrian law constituted a deprivation of property is not without issues. First, there
was considerable uncertainty whether EU law indeed did allot the exploitation rights
at issue to the director. Arguably, no director could thus have had the reasonable
expectation to possess those rights. The ruling therefore suggests that national law
may violate the fundamental right to property even if the scope of the EU provision
on which it is based, and hence the scope of the Member States’ obligations, is
unclear.
31
Second, even if one accepts the finding that national law interfered with the
right to property, a pertinent question is whether that interference is justified.
32
Unlike the AG, who considered that such an intrusion might be justified if the director
was guaranteed fair compensation, the CJEU wholly glossed over the issue.
33
Perhaps
the cursory examination of the compatibility of the Austrian law with article 17 by the
CJEU is best understood as a rhetorical reinforcement of its conclusion that the
exploitation rights belonged to the director, as has been suggested by some
commentators.
34
Had the CJEU reached the same conclusion regarding the violation
of article 17(2) without also considering that secondary law had been violated, it would
have been an indication that article 17(2) indeed requires a certain level of
protection.
35
131. A guarantee to IP protection? If Luksan can be seen as an indication that
protection of intellectual property under the Charter is no different from that of other
property, a number of more recent decisions somewhat muddied the waters. In these
decisions the CJEU, in the context of determining the scope of copyright, referred to
the fair balance to be struck between the “interests” of holders of copyright and of
related rights in the protection of their intellectual property, guaranteed by article
17(2) of the EU Charter, and the interests and fundamental rights of users and the
general interest.
36
In three decisions of 29 July 2019 the Court added the familiar
29
Case C-277/10 Luksan ECLI:EU:C:2012:65, paras 68-70.
30
Geiger & Izyumenko 2014, p. 334.
31
Cf. Mylly 2015, p. 120-121.
32
Cf. Griffiths 2013a, p. 76-77, Mylly 2015, p. 119 and Oliver & Stothers 2017, p. 544.
33
Cf. Opinion of AG Trstenjak in Case C-277/10 Luksan ECLI:EU:C:2011:545, paras 131-133.
34
Griffiths 2013a, p. 77 and Oliver & Stothers 2017, p. 544. See also, supra, §29.
35
Cf. Husovec 2019, n 105 and accompanying text.
36
Case C-160/15 GS Media ECLI:EU:C:2016:644, para 31; Case C-161/17 Renckhoff
ECLI:EU:C:2018:634, para 41; Case C-469/17 Funke Medien NRW (Afghanistan Papers)
165
“comforting” words that intellectual property is not inviolable and need not be
protected as absolute rights.
37
The reference to article 17(2) in the context of
determining the scope of copyright could be understood to imply that the protection
offered by article 17(2) not only extends to established legal positions, but also has
something to say about the content of those legal positions. It is nevertheless
questionable whether the CJEU should be understood in that way.
Ultimately, in none of these decisions does the CJEU give any indication that article
17(2) would guarantee a particular level of protection. In Renckhoff the CJEU does
consider that excluding the use in question from the scope of the communication right
would not strike a fair balance, taking into account the right to protection of
intellectual property guaranteed by article 17(2). However, this consideration must be
understood in the context of its earlier consideration in the same judgement that it is
the specific purpose of intellectual property “to ensure for the rightholders concerned
protection of the right to exploit commercially the marketing or the making available
of the protected subject matter, by the grant of licences in return for payment of an
appropriate reward for each use of the protected subject matter”.
38
On this
teleological basis the Court had already concluded that the use in question should fall
within the scope of the communication right, because to hold otherwise “would
deprive the copyright holder of the opportunity to claim an appropriate reward for the
use of his work”.
39
Only thereafter did the CJEU refer to article 17(2) when rejecting a
challenge to that interpretation on fundamental rights grounds. The Court did not
explain why the right to protection of intellectual property would be negatively
affected if the right to communication to the public were to be construed narrowly.
Without any further explanation regarding the degree of interference with the right to
intellectual property caused by such a hypothetical interpretation, that reference is
probably better understood as emphasizing that a narrow interpretation would
unduly undermine the aforementioned legislative purpose to ensure the right to
exploit the work in order to obtain an appropriate reward. Similarly, in Metall auf
Metall, following a number a general considerations in which it pointed to the fair
balance to be struck between article 17(2) and the rights of users, the CJEU adopted a
narrow interpretation of the reproduction right granted to phonogram producers,
because a broader interpretation would interfere with the freedom of the arts while it
ECLI:EU:C:2019:623, para 57; Case C-476/17 Pelham and Others (Metall auf Metall)
ECLI:EU:C:2019:624, para 32 and Case C-516/17 Spiegel Online ECLI:EU:C:2019:625, para
42.
37
Case C-469/17 Funke Medien NRW (Afghanistan Papers) ECLI:EU:C:2019:623, para 72;
Case C-476/17 Pelham and Others (Metall auf Metall) ECLI:EU:C:2019:624, para 33 and Case
C-516/17 Spiegel Online ECLI:EU:C:2019:625, para 56.
38
Case C-161/17 Renckhoff ECLI:EU:C:2018:634, para 34.
39
Ibid.
166
would not interfere with the legislative purpose to protect a phonogram producer’s
investment.
40
Finally, in its Cofemel judgement, concerning the protection by
copyright of works of applied art, the CJEU considered that it follows from article
17(2) that objects of intellectual property enjoy protection by EU law, but that this
does not mean that different objects must receive the same protection. Although one
could argue that this implies that these objects must as a matter of article 17(2) receive
at least some protection, it appears this somewhat puzzling reference to the Charter
must rather be understood to emphasize the role of the legislature to create and shape
the scope of protection of immaterial objects.
41
If article 17(2) is to play a role in determining the scope of rights and limitations and
exceptions it cannot be in form of protection of property understood as protection of
the peaceful enjoyment of possessions. As already pointed out, the right to a peaceful
enjoyment of possessions cannot determine the content of the possession one has to
begin with. Moreover, the right to protection of property should not be viewed as
treating property as an end in itself, but look towards the underlying justifications.
42
Nevertheless, it is not completely unthinkable that the right to (intellectual) property,
in particular as guaranteed by article 17(2), is interpreted as not merely a protection
of existing possessions with a basis in positive law, but also as an obligation on the
legislature to create and maintain a system that facilitates private ownership. Such is,
in essence, the case in Germany. Article 14 of the German Basic Law not merely
protects against interferences but also guarantees the institution of property. This
property guarantee in the German constitution “is primarily aimed at securing to the
holder of the basic right a personal freedom in property matters through granting and
insuring the rights of control, utilization and disposition, and thereby enabling the
development and independent arrangement of his life”.
43
The institutional guarantee
is characterized by the right to private use and to dispose of the property. This means
that, although it is the task of the legislature to shape property rights, it is not entirely
free in this. As regards the rights of authors, it has to take account of the
“constitutionally protected essence of copyright”, which includes “the attribution in
principle of the property#like result of the creative activity to the author by way of a
statutory civil law regulation as well as the author's freedom to be able to dispose of
this result under his own responsibility”.
44
Attribution of the “property-like result”
40
Case C-476/17 Pelham and Others (Metall auf Metall) ECLI:EU:C:2019:624, paras 30-38.
See also, supra, § 37 and, infra, § 157.
41
Case C-683/17 Cofemel ECLI:EU:C:2019:721, para 36 et seq.
42
Cf. Cornides 2004, p. 143, Geiger 2006b, p. 375 and Peukert 2011.
43
German Federal Constitutional Court (First Senate), 7 July 1971, 1 BvR 765/66 –
Schulbuchprivileg, published in IIC 1972, p. 394, at p. 396.
44
Ibid., at 397.
167
implies that the author, when all is said and done, must be ensured at least an
appropriate remuneration for their efforts, but not “that thereby every conceivable
way of exploitation is constitutionally secured”.
45
Alternatively, as suggested by Tuomas Mylly, one could read in article 17(2) a
“principle” within the meaning of article 52(5) of the EU Charter. Such provisions
“may be implemented by legislative and executive acts” and “shall be judicially
cognisable only in the interpretation of such acts and in the ruling on their legality”.
However, as he points out, this must not lead to a transformation of the stated purpose
of copyright directives to provide a “high level of protection” into a fundamental
right.
46
Instead, the content of such a principle itself would equally be itself the subject
of interpretation. In any case, its intrinsic importance cannot be very strong, seeing
as their implementation is fully left to the discretion of the legislature.
132. Conclusion. Although the open texture of article 17(2) does not entirely
preclude a reading understanding it as guaranteeing some degree of copyright
protection, it should arguably be merely viewed as a clarification that intellectual
property assets receive the same protection as other assets in accordance with the
general scheme of the first paragraph of article 17 of the Charter.
47
First, such a
reading does justice to the structure of article 17 as a whole. Treating article 17(2) as
operating in isolation would create ill-defined obligations. For instance, what
constitutes “intellectual property”, which “shall be protected”? What about subject-
45
Ibid. Cf. also German Federal Constitutional Court (First Senate), 25 October 1978, 1 BvR
352/71 – Kirchenmusik, published in GRUR 1980, p. 44, at p. 48 and German Federal
Constitutional Court (First Senate), 11 October 1988, 1 BvR 743/86 & 1 BvL 80/86 –
Vollzugsanstalten, published in GRUR 1989, 193, at 196. Similarly, concerning the related
right of phonogram producers, German Federal Constitutional Court (First Senate), 31 May
2016, 1 BvR 1585/13 – Metall auf Metall, English translation published in IIC 2017, p. 343,
para 74. Nevertheless, the requirement that the author be free “to be able to dispose of this
result under his own responsibility” implies that the author should in principle be granted
exclusive rights over their creation. Cf. Schack 2015, para 93 and, regarding the Swiss property
guarantee, Macciacchini 2000, p. 685.
46
Mylly 2009, p. 209-2010.
47
Geiger 2009b, p. 116, Griffiths 2013a, p. 69-70, Griffiths & McDonagh 2013, p. 80-81, Mylly
2005, p. 207 and Ohly 2013, p. 151. See, however, Griffiths 2017, p. 20-22, who suggests that
following Coty Germany the CJEU may be willing to read a positive obligation into article
17(2) requiring the implementation of a general adaptation right. However, as Griffiths
acknowledges, Coty Germany concerned the enforcement of established legal positions. The
recognition of a positive obligation to offer a particular level of intellectual property protection
would be another issue entirely, although one must agree with him that “the absence of a
clearly disciplined framework of principle in the Court’s fundamental rights jurisprudence and
the expansionist tendency in its copyright case-law” mean it is not “impossible that the Court
would be willing to take such a step”. If one agrees that article 17 EU Charter does not entail a
positive obligation to offer a particular level of protection, there can, a fortiori, also be no
debate about the lack of protection violating the essence or “core” of that right. I therefore
disagree with Sganga 2019, p. 695, who appears to plead for the identification of such an
essence. Arguing that the CJEU has so far not recognized such an essence is Husovec 2019.
168
matter whose protectability may be contentious, such as football matches, whose
organisers may have a strong interest in specific protection?
48
Would such organisers
be able to invoke the specific fundamental rights protection of article 17(2)? Similarly,
it is unclear is what kind of protection article 17(2) would require. Second, an
interpretation linking the second paragraph of article 17 to the first paragraph would
also do justice to the intention behind the provision as evinced by its drafting history,
as already discussed. Third, such an interpretation also aligns the scope of article 17
closely with the scope of article 1P1, after which it is modelled. Finally, its references
to article 17(2) when considering questions concerning the scope of copyright
protection notwithstanding, the CJEU itself also appears to understands article 17(2)
as a lex specialis of article 17(1).
5.2.2 The rights of authors as protected by international human rights
conventions
133. “Moral and material interests”. So far it has been argued that the right
to property, neither as protected by article 1P1 nor as by article 17 EU Charter, has
anything to say about the content of the rights that are granted to authors and related
right holders.
49
In so far as the interpretation and/or application of a norm
50
of EU
copyright law seeks to maintain a fair balance of rights and interests, those rights and
interests must thus be unrelated to the right to property.
As far as authors are concerned, there may be another fundamental right that forms
part of the “rights and interests” of authors that can impact the fair balance to be
struck when interpreting and applying copyright law. Both article 27(2) UDHR and
article 15(1)(c) ICESCR recognise the right to “the protection of the moral and
material interests resulting from any scientific, literary or artistic production of which
he is the author”. The EU is not a signatory to the ICESCR, but all its Member States
are. The CJEU has repeatedly held that, for the purpose of identifying fundamental
rights which are part of the general principles of EU law, it “draws inspiration from
48
Cf. Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others
ECLI:EU:C:2011:631, para 102. See also the ill-considered article 12a of the DSM Directive as
adopted in the first reading by the European Parliament on 12 September 2018 on the proposal
for a directive of the European Parliament and of the Council on copyright in the Digital Single
Market (P8_TA-PROV(2018)0337). It was subsequently removed from the final version of the
directive, although the Commission has promised to assess the need for separate protection
for organizers of sports events (see the Annex to the European Parliament legislative
resolution of 26 March 2019 on the proposal for a directive of the European Parliament and of
the Council on copyright in the Digital Single Market (P8_TA-PROV(2019)0231).
49
Cf. also Griffiths & McDonagh 2013, p. 89, Peukert 2015, p. 140 and the Report of the Special
Rapporteur in the field of cultural rights, Farida Shaheed. Copyright policy and the right to
science and culture (A/HRC/28/57, 24 December 2014), para 53.
50
Unless that norm has a settled interpretation capable of giving rise to legitimate
expectations, in which case those expectations may give rise to a protected possession.
169
the constitutional traditions common to the Member States and from the guidelines
supplied by international instruments for the protection of human rights on which
the Member States have collaborated or to which they are signatories”.
51
For that
reason, the EU should take account of the protection offered by, at least, article
15(1)(c) ICESCR.
134. Scope of state obligations. Both article 27(2) UDHR and article 15(1)(c)
ICESCR, the latter having been modelled after the former, undeniably provide a
certain fundamental rights basis for authors’ rights.
52
Nevertheless, the scope of the
protection offered by those provisions is unclear. Many commentators recognise that
since article 27(2) UDHR and article 15(1)(c) ICESCR do not prescribe the level of
protection that should be granted to authors, they leave a large margin of appreciation
to states.
53
An attempt can nevertheless be made to identify some core obligations concerning the
protection of both the moral and material interests. The moral interests protected are
arguably similar to the main moral rights protected in the Berne Convention, that is
to be recognized as author and to be protected against distortions that are prejudicial
to honour or reputation. Such was also the conclusion of the Committee on Economic,
Social and Cultural Rights (“CESCR”) in its General Comment No. 17 from 2006.
54
Because moral rights are not included within the scope of this study, this is not further
discussed.
55
The question what protection of “material interests” entails is more complicated and,
within the context of this dissertation, more interesting. The wording of both article
51
E.g. Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International
Foundation v Council and Commission ECLI:EU:C:2008:461, para 283 (emphasis added).
Several AGs have already suggested the CJEU should take account of the ICESCR in
interpreting EU law. See the Opinion of AG Sharpston in Case C-73/08 Bressol and Others
ECLI:EU:C:2009:396, para 136, the Opinion of AG Tanchev in Case C-214/16 King
ECLI:EU:C:2017:439, paras 40-41, the Opinion of AG Wathelet in Case C-266/16 Western
Sahara Compaign UK ECLI:EU:C:2018:1, paras 101-102 and the Opinion of AG Campos
Sánchez-Bordona in Case C-161/17 Renckhoff ECLI:EU:C:2018:279, para 115, n 80. Implicitly,
the potential applicability of the ICESCR seemed to also have been accepted by the CJEU in
Case C-73/08 Bressol and Others ECLI:EU:C:2010:181, paras 83-88.
52
There is an extensive literature on the subject. See, e.g., Dessemontet 1998, Geiger 2004a,
paras 40-42, Geiger 2006b, Kéréver 1999, Ostergard 1999 and Strowel 1993, paras 122-123,
as well as the literature cited, infra, n 53.
53
E.g. Chapman 2001, p. 15, Derclaye 2008, p. 139, et seq, Mylly 2005, p. 197, Torremans
2008b, p. 203-204 and Torremans 2014, para 17(2).25. Implicitly also, recognizing that a
system of (mainly) exclusive rights is not the only way by which states can fulfil their
obligations under art. 27 and art. 15: Plomer 2013, p. 175 and Yu 2007, p. 1083.
54
Comm. on Econ., Soc. & Cultural Rights, General Comment No. 17: The Right of Everyone
to Benefit from the Protection of the Moral and Material Interests Resulting from Any
Scientific, Literary or Artistic Production of Which He Is the Author (Art. 15(1)(c), of the
Covenant) (E/C.12/GC/17, 12 January 2006), para 13.
55
See, supra, § 13.
170
27(2) and article 15(1)(c) ICESCR is ambiguous, as is their drafting history, which
focused mainly on the question whether the respective provisions should be included
at all, which proved controversial, rather than on the scope of obligations
thereunder.
56
Moreover, no unique motive for the inclusion of these provisions can be
identified, further obscuring the provision’s meaning. Divergent reasons were
adduced in support of explicit protection of the interests of authors. Interestingly,
these reasons related both to the protection of the human dignity of the individual –
which is not surprising for human rights instruments – but also to functional
considerations. For instance, the protection of material interests was believed to be
necessary to provide authors with a remuneration for their labour, but also to
encourage creative activity and the development of culture.
57
The latter justification
sought to connect the right of the author with the rights of others to take part in
cultural life, to enjoy the arts and the benefits of scientific progress, themselves
protected by article 27(1) UDHR and article 15(1)(a) and (b) ICESCR. Protection of
authors was deemed necessary to ensure there would be a cultural life to take part in
and progress or arts to enjoy. At the same time, the right to take part in cultural life
inherently limits the right of authors. For these reasons, Tuomas Mylly has even gone
so far as to suggest that this interrelationship between the various provisions of article
27 and article 15 militates against reading in article 27(2) and article 15(1)(c) any kind
of minimum level of protection for authors.
58
Nevertheless, even if the right of authors is to be balanced against the rights of others
and the needs of society at large, one needs to have at least an idea of what that right
prima facie requires as a matter of principle. Arguably, the protection afforded by the
UDHR and ICESCR is narrow. A systemic interpretation, in light of the separately
protected rights of the worker to remuneration and of everyone to an adequate
standard of living,
59
points to a right for the author to a just or fair remuneration for
their work enabling them to enjoy an adequate standard of living. Such a limited right
to just remuneration is also in line with one of the main reasons advanced in support
of the inclusion of article 27(2) UDHR, namely that the intellectual labourer should
receive protection similar to that of the wage earner. Peter Yu has pointed out that
support for this interpretation can also be found in the original text of article 27(2),
56
Cf. Chapman 2001, p. 13. For a discussion of the drafting history of both provisions, see e.g.
Green 2000, Plomer 2013 and Yu 2007, p. 1050 et seq.
57
Cf. Chapman 2001, p. 10-12 and Green 2000, p. 12. For an extensive overview of the various
motives, see the literature cited in the previous footnote.
58
Cf. Mylly 2005, p. 197.
59
Art.25 UDHR and art. 7 & 11 ICESCR.
171
which provided for protection of moral rights of authors “in addition to just
remuneration for their labour”.
60
Article 27(2) and article 15(1)(c) ICESCR thus hardly enshrine as a fundamental right
the broad exclusionary protection nowadays typically granted to authors. Several
authors have rightfully suggested that states can also fulfil their obligations by
granting remuneration rights or even by creating prize funds.
61
So while it is true that
copyright laws protect moral and material interests, one should be careful to state
that, conversely, copyright itself is a human right.
62
This overrates the constitutional
foundations of copyright law. Moreover, it is important to keep in mind that in
principle only authors benefit from the protection of Article 27(2) UDHR and article
15(1)(c) ICESCR,
63
although one could argue that to the extent that a performer gives
their own interpretation to the work they perform, they are also “authors” of an
“artistic production” within the meaning of those provisions. The fundamental rights
entitlement to the rights granted under modern day copyright legislation is thus weak
(authors, performers) or non-existent ((other) related right holders), meaning their
(constitutional) foundations perhaps should be sought elsewhere.
135. Normative uncertainty. Finally, one can also explain the weak obligations
of signatory states under articles 27 UDHR and 15 ICESCR with reference to
normative uncertainty. Authors are only entitled to protection of their material
interests insofar as it does not unduly interfere with the rights of others. The relative
weight of a particular level of protection of the authors’ material interests depends to
a large extent on the intrinsic importance one accords to the fundamental right to
protection of those interests and on the degree of fulfilment of that right that is
achieved by the chosen level of legal protection. Questions of intrinsic importance and
degree of fulfilment are not morally neutral.
64
However, as will be further discussed
in Section 5.4.2.2, the moral justification of the rights of authors is highly contentious,
meaning both the intrinsic importance attached to the fundamental right of authors
and the weight attached to the degree of fulfilment is subject to considerable
normative uncertainty. In this light, the obligations of signatory states vis-à-vis
authors cannot be strictly defined, leading to a large margin of discretion. Meanwhile,
a court like the CJEU or national courts can take account of articles 27 UDHR and 15
60
Yu 2007, p. 1087-1088.
61
Cf. Mylly 2009, p. 202 & Yu 2007, p. 1090-1091. See also General Comment No. 17 (supra,
n 54), para 16.
62
E.g. Torremans 2014, para 17(2).17.
63
Cf. Opinion of AG Tesauro in Case C-200/96 Metronome Musik v Music Point Hokamp
ECLI:EU:C:1998:18, footnotes 6 & 18.
64
Cf., supra, § 72.
172
ICESCR when interpreting and applying copyright norms, but should acknowledge
this normative uncertainty.
5.3 The objectives of EU copyright law
136. An instrumental view. The previous section outlined the (narrow)
constitutional basis of the rights of authors, found in the international obligations of
the individual Member States. The right to property has little to say about the scope
of copyright protection, neither with respect to authors nor holders of related rights.
But in order to be justified copyright need not be founded on a principled protection
of fundamental rights of authors per se. Copyright can also be construed as an
instrument in the public interest to pursue policy objectives such as the
incentivization and rewarding of creation and the dissemination of culture. This
section is aimed at identifying the core objectives of EU copyright law. To that end, it
first briefly describes the focus of the EU legislature, before discerning three
categories of objectives.
5.3.1 The focus of the EU legislature
137. Legislative focus. From the outset the EU legislature has recognized that
legislating on copyright entails striking a balance between divergent interests. Most
prominently, this recognition features in a number of preambles to the various
directives in relation to copyright where the legislature emphasizes that a fair balance
of rights and interests between right holders and users must be safeguarded.
65
But
already before that the idea of copyright as a balance had been espoused in the 1988
Green Paper on Copyright and the Challenge of Technology. On the first page it is
stated:
The development of copyright laws in the Community and elsewhere reveals a
continuaI re-examination of those laws to achieve an appropriate balance, in the light
of conditions prevailing at the time, between important objectives that are partially
in tension. Protection of the economic interests of the author and other creators, the
promotion of ready access to information, and the pursuit of cultural goals have all
had to be pursued and reconciled.
66
Nevertheless, EU copyright policy has always had a predominant focus on the
importance of the copyright dependent industry to the European economy and the
related right holder interests, which is not necessarily surprising in an environment
focused on market integration. This is already evident in the 1988 Green Paper, which
65
In chronological order: Recital 31 in the preamble to the InfoSoc Directive, recital 1 in the
preamble to the Directive implementing the Marrakesh Treaty and recitals 6 & 70 in the
preamble to the DSM Directive.
66
Green Paper on Copyright and the Challenge of Technology – Copyright Issues Requiring
Immediate Action (Brussels, 7 June 1988, COM (88) 172 final), p. 1.
173
outlined three particular challenges facing the (then) European Economic
Community: (i) the proper functioning of the internal market, which would be
threatened by divergent approaches to piracy, (ii) improvement of the
competitiveness of the economy by ensuring at least equal protection as enjoyed by
competitors in their home markets and (iii) protection of European creators against
misappropriation by parties outside the Community.
67
This primary concern for the
economic importance of the copyright industry can also be discerned in later policy
documents.
68
For instance, the 1995 Green Paper on Copyright and Related Rights in
the Information Society not only stressed the importance of copyright protection for
the promotion of the development of European cultural heritage in general, but also
the “economic value” of that heritage and the related need “for the economic recovery
to benefit the cultural sector of the Community”.
69
Copyright was described as
“fundamental” in that regard.
70
The Green Paper went on to emphasize the key role of
the incentive to invest provided by copyright protection to “added value and
competitiveness in European industry”, and the importance of copyright and related
rights to job creation.
71
The 1996 follow-up to that Green Paper similarly noted that
“ensuring a high and comparable level of copyright protection across Member States,
has created a positive climate for innovation and creativity”.
72
The importance of
67
See ibid., p. 3-5. Interestingly, the Commission noted as its fourth concern that the
restrictions created by copyright law should not disproportionately affect competition,
meaning certain limits should be placed on protection to avoid “genuine monopolies”. This
concern, however, was limited to certain new areas which had recently developed, such as in
respect of the potential application of copyright to computer programs. So, although the
Commission recognised the need for limitations on copyright protection, its concern, at least
early on, was not with the more conventional boundaries of copyright created by traditional
limitations and exceptions, but with avoiding economic monopolies in certain newly
developing industries. The importance of copyright as an “economic and cultural asset” was
also stressed in the follow-up to the Green Paper. See Communication from the Commission.
Follow-Up to the Green Paper. Working Programme of the Commission in the Field of
Copyright and Neighbouring Rights (Brussels, 17 January 1991, COM(90) 548 final), p. 2-3.
68
This was also noted by The European Commission Legal Advisory Board, General Reaction
to the Green Paper on Copyright and Related Rights in the Information Society, retrieved
from <http://www.echo.lu/legal/en/ipr/reply/general.html> accessed on 27 June 2019,
which “observes that the Green Paper has been written with the clear purpose of strengthening
the protection of intellectual property in the emerging digital networked environment …
However, in the opinion of the LAB it is not sufficient to look at the present and future of
intellectual property rights solely from a right holder's perspective. Even though society in
general may benefit from increasing, to a certain degree, the level of protection currently
awarded to right holders, the interests of right holders, society and the economy as a whole
have to be carefully balanced.”
69
Green Paper on Copyright and Related Rights in the Information Society (Brussels, 19
July1995, COM(95) 382 final), p. 11.
70
Ibid.
71
Ibid., p. 11-12.
72
Communication from the Commission. Follow-Up to the Green Paper on Copyright and
Related Rights in the Information Society (Brussels 20 November 1996, COM(96) 586 final),
p. 7.
174
copyright to the global competitiveness of European industry has remained a central
tenet of the Commission’s activities during the most recent copyright reforms, while
reiterating that a “high level of protection” is the basis of that competitiveness.
73
In a
2015 resolution the European Parliament echoed these sentiments, by emphasizing
that “any reform of the copyright framework should be based on a high level of
protection, since rights are crucial to intellectual creation and provide a stable, clear
and flexible legal base that fosters investment and growth in the creative and cultural
sector”.
74
A similar image, revealing a strong focus on the economic importance of copyright,
can be obtained from the preambles to the various directives. Case in point is the 2001
InfoSoc Directive, which followed the rhetoric that pervaded the 1995 Green Paper
and its 1996 follow-up by stressing, in its preamble, that a harmonized, high level of
protection will lead to substantial investment in creativity and innovation, increased
competitiveness and job creation.
75
Copyright was described as “crucial to intellectual
creation” and as necessary to provide “satisfactory returns” on investment.
76
Similarly, other directives have stressed that copyright is “of fundamental importance
for the economic and cultural development of the Community”
77
and “fundamental to
intellectual creation”
78
and that copyright “stimulates innovation, creativity and
investment”.
79
The grant of broad economic rights has not only been anchored to their incentivizing
function and the general economic importance of copyright. Although to a lesser
extent, the EU legislature has also stressed the importance of rewarding authors and
performers for their creative efforts. Partially, this reward has a utilitarian purpose as
73
Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions. Towards a
modern, more European copyright framework (Brussels, 9 December 2015, COM(2015) 626
final), p. 2. See also Communication from the Commission to the European Parliament, the
Council, the European Economic and Social Committee and the Committee of the Regions,
Promoting a fair, efficient and competitive European copyright-based economy in the Digital
Single Market (Brussels, 14 September 2016, COM(2016) 592 final), p. 10, which concludes by
emphasizing “the ability of the European copyright industries to innovate in the digital
environment is a prerequisite for their success and their ability to compete globally”.
74
European Parliament resolution of 9 July 2015 on the implementation of Directive
2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related rights in the information society
(2014/2256(INI)), para 19. The European Parliament also pointed out the importance to
employment of the “copyright-intensive industries” (para 21).
75
Recital 4 in the Preamble to the InfoSoc Directive.
76
Ibid., recitals 9-10.
77
Recital 3 in the preamble to the Rental and Lending Rights Directive.
78
Recital 11 in preamble to the Term Directive.
79
Recital 2 in the preamble to the DSM Directive. See, similarly, recital 5 in the preamble to
the Orphan Works Directive, recital 1 in the preamble to the CRM Directive and recital 1 in the
preamble to the Directive implementing the Marrakesh Treaty.
175
it is intended to ensure that authors and performers can “continue their artistic and
creative work”.
80
But it appears that this reward is awarded not just with a view to the
future, but also with a view to the past, that is as a reward for past creativity. In this
regard it has a certain deontological connotation. Accordingly, the preamble to the
Orphan Works Directive notes, in general, that “[c]opyright is an important tool for
ensuring that the creative sector is rewarded for its work”.
81
Similarly, the
Commission wrote in a 2015 communication that “[c]opyright rewards creativity and
investment in creative content”.
82
Finally, and importantly, the preamble to the
InfoSoc Directive states that copyright protection is one of the main ways of
“safeguarding the independence and dignity of artistic creators and performers”.
83
One could read into this last statement a reference to the fundamental right of authors
to protection of their moral and material interests. EU copyright can thus also be
viewed as an explicit mechanism to reward creativity, simply as a form of societal
appreciation and recognition of creative endeavors or even as a matter of desert.
138. Legislative bias. On a final note, it can be argued that, despite the
acknowledgement that copyright should strike a fair balance of rights and interests,
the EU legislature has shown a consistent bias towards right holder interests. This is
evident when reading the various directives in relation to copyright. Subjecting the
directives up to and including the CRM Directive to content analysis, Ana Ramalho
found 88 references to protection of content industries and 79 references to the
protection of authors and performers in their preambles. By contrast, end user
interests were referenced less than 25 times and intermediary industries less than
20.
84
Examples of less than full consideration for countervailing (fundamental) rights
and interests are plentiful. The “harmonization” of limitations and exceptions
achieved by the InfoSoc Directive is notorious and can hardly be said to be the result
of a conscious consideration as to the proper protection of user interests and other
public policy objectives.
85
It led to well-known proclamation by Bernt Hugenholtz that
the Directive was “possibly invalid”.
86
Similarly, the extensive protection given to
technological protection measures by article 6 of the InfoSoc Directive offers little
protection for users relying on exemptions.
87
One could argue the situation has
80
Recital 10 in the Preamble to the InfoSoc Directive.
81
Recital 5 in the preamble to the Orphan Works Directive.
82
Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions. Towards a
modern, more European copyright framework (Brussels, 9 December 2015 COM(2015) 626
final), p. 2.
83
Recital 11 in the Preamble to the InfoSoc Directive.
84
Ramalho 2016, p. 54.
85
Cf. Ramalho 2016, p. 197-8.
86
Hugenholtz 2000.
87
See, e.g., the critical analysis by Mazziotti 2008, p. 94 et seq.
176
improved with the adoption of the DSM Directive. After all, the Directive mandates
the implementation of several specific limitations and exceptions. Nevertheless,
despite the fact that the initial impact assessment accompanying the proposal
included an analysis of the impact of the proposals on consumers as an interest group
and fundamental rights in general, it also showed a patent disregard for the potential
impact on various fundamental rights of certain measures intended to strengthen the
position of right holders. The potential negative impact on the right to freedom of
expression and freedom to information of the exclusive press publisher right was
completely ignored.
88
Similarly, the impact on the right to protection of personal data
of the new obligations imposed on “online content-sharing service providers” by
article 17 of the DSM Directive was not discussed.
89
5.3.2 The primary, secondary and tertiary objectives of EU copyright
law
139. General interest and the rights of others. As the brief overview of EU
copyright policy illustrates, that policy pursues a number of different objectives, from
rewarding creation in itself to stimulation of creative and artistic endeavours, the
protection and dissemination of European cultural heritage, and the promotion of
investment in creative industries and the associated job creation. As an instrument in
the public interest, copyright does not directly have a constitutional basis in individual
rights. Rather, it can conversely be construed as a limitation of the freedoms of others
in the public interest.
90
However, even the public interest objectives of copyright can
be linked to rights of others, such as the right to work, the right to access to cultural
life and the right to freedom of expression, constituting a reward that allows authors
to work independently
91
.
92
88
See for a critical analysis of exactly this issue, Van Eechoud 2017, p. 18 et seq. She notes:
“The crucial question here is whether the new [ intellectual property right for publishers of
press publications] actually would meaningfully promote the sustainability of the (press)
publishing industry and media pluralism, and if so, at what cost. The Impact Assessment that
accompanies the proposal does not contain even the beginning of an answer.”
89
Cf. Angelopoulos 2017b, p. 40.
90
Cf. art. 52(1) EU Charter: “Any limitation on the exercise of the rights and freedoms
recognised by this Charter must be provided for by law and respect the essence of those rights
and freedoms. Subject to the principle of proportionality, limitations may be made only if they
are necessary and genuinely meet objectives of general interest recognised by the Union or the
need to protect the rights and freedoms of others.”
91
Probably most famously enunciated by United States Supreme Court Justice Sandra Day
O’Conner, who referred to copyright as “the engine of free expression”, in Harper & Row
Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985). For a discussion of this
sentiment see, e.g., Netanel 2008, ch. 5.
92
For an extensive discussion of various justifications of copyright, see, e.g., Grosheide 1986,
p. 125-145.
177
140. Copyright’s primary, secondary and tertiary objectives. The
analysis in the previous section allows a distinction between three (categories of)
objectives that form the bedrock of EU copyright law.
The primary objective of EU copyright is to guarantee the independence and dignity
of authors and performers, as well as to provide a reward for past creativity. As noted
in the previous subsection, this objective has both an consequentialist and
deontological connotation. It can be viewed as consequentialist insofar as it aims to
create an independent cultural sector, which can sustain itself free from patronage.
93
On the other hand, this objective also reflects the idea of copyright as a reward, not to
achieve some other objective, but as an aim in itself. In this regard, it can be said to
implement the fundamental right of “authors” to protection of their moral and
material interests within the meaning of the UDHR and the ICESCR.
94
Moreover,
protection can more generally be grounded in the right to human dignity. This
European foundation of copyright law in a way mirrors the obligation of the
legislature read by the German Federal Constitutional Court in article 14 of the
German Basic Law, discussed in § 131. It also links copyright to its (alleged) natural
right origins. In the German context, this was illustrated by the reference of the
German Court to the importance of property rights to both “enabling the development
and independent arrangement” of one’s life and the protection of things of economic
value gained through labour.
95
As such, the protection of authors and performers has
a relatively great intrinsic importance compared to the secondary and tertiary
objectives. However, as noted already in § 135, the questions of intrinsic importance
and degree of fulfilment are not morally neutral. The contentious nature of the moral
justification of these rights arguably must ultimately impact the relative weight one
can assign to this objective when confronted with countervailing rights and interests.
This is further discussed, infra, in Section 5.4.2.2.
The secondary objective of EU copyright is to incentivize creation of both authorial
works and subject-matter protected by related rights. This is a purely instrumental
view of copyright: copyright is intended to improve market efficiency by granting
temporary exclusionary rights. Without this ability to exclude, competitors may be
able to undercut creators by selling their creations for a price that approaches the
marginal cost. As a result, creators may not be able to recoup their initial investment,
leading to underproduction of cultural artefacts. This, very briefly, is the theory. It is
93
On this, e.g., Netanel 1996.
94
See, supra, Section 5.2.2
95
See German Federal Constitutional Court (First Senate), 7 July 1971, 1 BvR 765/66 –
Schulbuchprivileg, published in IIC 1972, p. 394, at p. 396. Cf., on the reconciliation of human
rights and natural rights, Gervais 2015, p. 94-95.
178
far from clear, however, what level of protection is necessary to optimize efficiency.
Some promote the idea of limited control primarily intended to incentivize initial
creation,
96
while others have suggested that, except perhaps in cases of market failure,
protection should extend to every possible use made of the work.
97
Evidence for the
optimal amount of protection is thin, with some research suggesting in some
instances the incentives provided by law are not necessary to spur creation.
98
This is
further addresses in Section 5.4.2.1.
Finally, the tertiary objective underlying EU copyright law approaches copyright not
as a way to protect the interests of the creators of the subject-matter protected by it,
nor as a means to incentivize the creation of that subject-matter, but as an instrument
to spur investment and job creation in the industries that exploit the subject-matter
protected by copyright. The direct connection between actual investment and
resulting job-creation and specific copyright norms is weak. Arguably, given this weak
connection, the intrinsic importance of this objective is relatively low, even if the aim
of furthering job creation can be said to pursue the fundamental right to work.
Moreover, it can reasonably be assumed that any increase in copyright protection will
only marginally impact the degree of fulfilment of this particular fundamental right,
despite the size of the copyright dependent industries.
5.4 The reward as the overarching objective of EU copyright law
141. Outline. The main objectives of EU copyright identified in the previous
section are pursued by ensuring that authors and holders of related rights have the
opportunity to obtain a reward through the grant of economic rights enabling effective
commercial exploitation. Together, these objectives are unified in what can be called
the (overarching) remuneration objective of EU copyright law. The reward granted is
both an end in itself as well as a means to an end (incentivization, investment, job-
creation). Insofar as (the enforcement of) copyright limits the attainment of
conflicting (fundamental) rights or (general) interests in the pursuit of these
objectives, it must be proportionate. This is reflected in the idea that right holders are
96
E.g., Lemley 2005, Netanel 1996 and Rognstadt & Poort 2018.
97
E.g. Goldstein 1994, p. 178-179 and Bell 1998. See also, in regard to patents, Kitch and Kieff.
Landes & Posner 1989, although proceeding from the understanding that [s]triking the correct
balance between access and incentives is the central problem in copyright law” (p. 326),
nevertheless contend that right holders should have broad control over (derivative) use of the
work (p. 353 et seq.). See also Landes & Posner 2003, suggesting a system of short terms of
protection that can be renewed indefinitely combined with a broad scope of protection.
Approaches that draw the borders of copyright protection along instances of market failure
trace back to the seminal article of Wendy Gordon on “Fair Use as Market Failure” (Gordon
1982), even if Gordon herself did not intend to argue in favour of a restrictive, exclusively
market failure-based interpretation of fair use (see Gordon 2002).
98
For an overview see, e.g., Bechtold 2018, p. 63-65 and Lemley 2015, p. 1334.
179
only entitled to an “appropriate” reward, as the CJEU has emphasized in cases like
FAPL and Usedsoft.
99
The reward granted to right holder can be deemed appropriate
to the extent that it necessarily contributes to the remuneration objective and that it
does not disproportionately interferes with other considerations. First, granting a
reward (typically in the form of control) must be suitable and necessary to achieve
(one of) the underlying objectives. Second, the degree of fulfilment of these objectives
must be capable of outweighing countervailing rights and interests.
This section focuses on the question of establishing the degree of fulfilment of the
remuneration objective. The greater the contribution to the underlying objectives (as
attenuated by their respective intrinsic importance) and the greater the reliability of
the underlying premises, the greater will be the relative weight of this remuneration
objective vis-à-vis those rights and interests. However, there is considerable
uncertainty as to the extent to which rewarding right holders is necessary and justified
to attain the objectives set forth in the previous section. This should impact to what
extent the overarching remuneration objective can outweigh other rights and
interests. This complication is addressed in Section 5.4.2. First, however, I briefly
discuss the utility of two other concepts, those of exploitation and of harm, to
delineate the scope of copyright protection. I conclude with some general
observations on how to determine the degree of fulfilment of the remuneration
objective in “typical” cases.
5.4.1 The concepts of exploitation and harm as tools to delineate the
scope of protection
5.4.1.1 The concept of exploitation
142. Exploitation as specific subject-matter. In Section 4.3.2.1 it was
suggested that the CJEU views the specific subject-matter of copyright as the right to
authorize independent and repeatable acts of exploitation. This begs the question as
to the functionality of the concept of exploitation in delineating the scope of rights
and limitations and exceptions, and ultimately the level of reward due to authors.
Copyright laws traditionally solely focused on those acts necessary for commercial
exploitation of the work. Since over the years, in particular due to the impact of digital
technology, this connection between exploitation and copyright protection has been
weakened, several authors have suggested reconnecting copyright to this underlying
purpose of ensuring control over the exploitation of the work.
100
99
See, supra, § 97.
100
Depreeuw 2014, ch. 3, Dusollier 2018, Rognstad 2015, Rognstad & Poort 2018 and Strowel
2018, p. 206-207. Cf. also Ohly 2018a, p. 107 et seq. and Pihlajarinne 2017 who similarly
suggest a return to first principles.
180
Can exploitation serve as a proxy for determining the level of the reward due to
authors? This is unlikely. By itself exploitation is an incomplete notion. Since in the
digital sphere (almost) any use of a work can in theory be subjected to right holder
control, every such use can be viewed as a possibility for the author to exploit the
work.
101
Those who have suggested to return the concept of exploitation to the centre
of copyright therefore typically qualify that concept, for instance by limiting it to acts
of exploitation that result in the circulation of works in the public sphere,
102
or by
considering that the exploitation must be “reasonable”.
103
Consequently, authorial
control over acts of exploitation is made conditional on that control being necessary
for copyright to attain its purpose (however that purpose is understood). The CJEU
has recognized the inherent limits of the right of the author to control the exploitation
of their work, by explicitly considering that this control is intended to ensure a reward,
but that right holders are only entitled to an appropriate reward.
104
Giving control
over exploitation is merely a means to ensure right holders can obtain a reward (which
in turn is itself at least partially a means to reach certain objectives). Nevertheless,
thinking of copyright in terms of giving control over exploitation may be helpful when
determining to what extent a certain action impacts on the ability to generate a
reward. If a certain act cannot be considered an act of exploitation, understood as an
act that can generate an independents economic benefit,
105
it is unlikely to affect the
ability of the author to obtain a reward.
5.4.1.2 The degree of fulfilment of the remuneration objective and the concept of
harm
143. The concept of harm. Striking a balance in the course of the interpretation
or application of copyright law necessitates taking account of the degree of fulfilment
of the remuneration objective that results from subjecting a particular use to right
holder control. One can also ask, conversely, what the degree of interference with that
objective would be if the use were not subject to right holder control. The latter can
101
Cf. Bohannan 2010, p. 1099, talking about the notion of cognizable harm in copyright and
noting that “there is a potential for circularity in the definition: a copyright holder can always
argue that the defendant's use caused her harm (and therefore is not fair) because the
defendant could have paid her a license fee for any unauthorized use; yet, if the use is deemed
fair, then no payment is required”.
102
Dusollier 2018.
103
Rognstad 2015, although what is “reasonable” is left largely undefined. In a later (co-
authored) paper, Rognstad principally links what is reasonable to efficiency considerations.
See Rognstad & Poort 2018.
104
See, principally, Section 4.3.2.1. See also Chapter 2.
105
Cf. Depreeuw 2014, p. 533, who goes on to point out that consumptive uses requiring
reproductions, such as streaming media online, are not acts of exploitation, unlike the
communication to the public which makes such uses possible (p. 536).
181
also be conceptualized as a question of harm. The concept of harm is a known device
for delineating the boundaries of copyright.
A narrow approach to harm claims that copyright protection is justified because
unauthorized use harms the individual of the author. Such an argument from harm is
one of the deontological considerations that one could consider part of the primary
objective pursued by EU copyright. A broader approach to harm looks at this concept
not principally as harm to the author, but as harm to the extent copyright can attain
its purpose. In particular in the USA, several authors have concerned themselves with
the question what should count as cognizable harm in this sense. The principal
objective of the majority of these enquiries appears to be to reduce the scope of
copyright and to bring it closer in line with the primarily utilitarian purpose attributed
to it in the USA. It has been suggested, for instance, that copyright should only protect
against “any use that threatens to suppress author incentives significantly below the
optimal level”
106
or against use “that the copyright owner … could have reasonably
foreseen at the time the work was created”.
107
These approaches thus tie the scope of
copyright to its incentivizing function.
108
A broader understanding of the purposes of
copyright, such as arguably the case in the EU, also requires a broader understanding
of the concept of harm. This notion is reflected in Thomas Cotter’s definition of
cognizable harm as harm which “the copyright laws were intended to prevent”.
109
He
pointed out that determining harm thus “involves consideration of the purposes of
copyright, the relationship of copyright to freedom of speech, and the policies
underlying the fair use privilege”.
110
Thus conceptualized, harm and reward are two
sides of the same coin.
144. The CJEU in Padawan. Before moving on, it must be noted that in one
particular context the CJEU itself has made a reference to the criterion of harm. It has
done so in the course of setting out the principles for calculating the amount of fair
compensation due to right holders under articles 5(2)(a) and (b) of the InfoSoc
Directive (the reprography and the private copying exception, resp.). In Padawan, the
CJEU was asked if the fair compensation due to authors under the private copying
exception should be calculated on the basis of the principle of harm. In a sensible
Opinion, AG Trstenjak concluded that the compensation must constitute an
appropriate reward for the use of the work.
111
By contrast, the CJEU held that the
compensation due to authors under the private copying exception should be
106
Springman 2009, p. 320.
107
Balganesh 2009, p. 1574-1575.
108
Cf. also Bohannan 2007 and Bohannan 2010.
109
Cotter 2010, p. 727.
110
Cotter 2010, p. 705. Cf. also Gordon 2013, p. 16-17.
111
Opinion of AG Trstenjak in Case C-467/08 Padawan ECLI:EU:C:2010:264, paras 78-84.
182
calculated on the basis of the criterion of harm. The CJEU has not been entirely
consistent as to where it considers that harm to originate. In Padawan the CJEU first
suggests that this harm is caused by the introduction of the private copying exception,
without which the author could have enforced their exclusive right.
112
This is non-
sensical. This conclusion presupposes an entitlement to exclusive control. This
entitlement does not exist prior to the legislation granting copyright protection. In
particular for works created after the introduction of the exception,
113
there can be no
harm to any prior entitlement. In focusing on the alleged harm done by the
introduction of the exception, the Court appears to mistakenly take as a baseline the
situation in which there is an entitlement to exclusivity without any exception.
However, later the Court indicates it is the user, not the legislature introducing the
exception, that is causing “harm” by making a private copy.
114
Again, looking for harm
to a supposed pre-existing right to exclusivity over reproduction would be a mistake.
The “harm” to the author should be found somewhere else. The compensation due for
the making private copies in the place of exclusive control is best conceptualized as
pursuing the same objectives as exclusivity by rewarding the author. It is suggested,
therefore, that the concept of harm ultimately must be understood as the obligation
to pay an appropriate reward for certain uses by the actual user. Perhaps the use of
the term “harm” instead of reward should principally be understood as an indication
who is ultimately responsible for paying compensation, that is the person causing
“harm”. Indeed, the CJEU typically refers to the concept of harm mainly to emphasize
that it is the user that makes the copy who should ultimately bear the burden of the
compensation due.
115
112
Case C-467/08 Padawan ECLI:EU:C:2010:620, para 42.
113
In regard to right holders who are confronted with a newly introduced limitation or
exception on existing rights the question may arise whether their right to a peaceful enjoyment
of their property has been interfered with. This is a separate issue, to be determined in the
context of the right to property as previously discussed. It does not appear the CJEU had harm
to this particular class of right holders in mind when it held that the amount of compensation
should be calculated on the basis of the criterion of harm.
114
Cf. Case C-467/08 Padawan ECLI:EU:C:2010:620, para 45. See also Case C-462/09
Stichting de Thuiskopie ECLI:EU:C:2011:397, para 26; Joined Cases C-457/11 & C-460/11 VG
Wort and Others ECLI:EU:C:2013:426, para 49; Case C-572/13 Hewlett-Packard Belgium v
Reprobel ECLI:EU:C:2015:750, para 48; Case C-470/14 EGEDA and Others
ECLI:EU:C:2016:418, para 27 and Case C-110/15 Microsoft Mobile Sales (formerly Nokia
Italia) and Others ECLI:EU:C:2016:717, para 30.
115
Cf. Case C-462/09 Stichting de Thuiskopie ECLI:EU:C:2011:397, para 26; Case C-521/11
Amazon.com International Sales and Others ECLI:EU:C:2013:515, para 23; Case C-463/12
Copydan Båndkopi ECLI:EU:C:2015:144, para 22; Case C-572/13 Hewlett-Packard Belgium
v Reprobel ECLI:EU:C:2015:750, para 69; Case C-470/14 EGEDA and Others
ECLI:EU:C:2016:418, para 27 and Case C-110/15 Microsoft Mobile Sales (formerly Nokia
Italia) and Others ECLI:EU:C:2016:717, para 30.
183
5.4.2 Rewarding the author: the uncertain premises of EU copyright
law
145. Empirical and normative uncertainty. Arguably, the overall
importance of granting a reward by means of copyright protection will for the most
part be determined by the degree to which that reward fulfils either the objective to
protect authorial independence and dignity or the objective to incentivize creation (or
both). However, assumptions that granting a reward in the form of copyright
protection will indeed further those objectives are not always reliable. The degree to
which copyright contributes to the incentivizing of creation, or more general: to
economic efficiency, is subject to empirical uncertainty. By contrast, to what degree
the grant of a reward as an end in itself can be justified is subject to normative
uncertainty.
5.4.2.1 Empirical uncertainty: the incentivizing power of copyright
146. Empirical uncertainty. The secondary objective of EU copyright, as here
defined, is to incentivize creation. The relative weight of the overarching
remuneration objective is partially determined by the degree to which subjecting
particular uses to right holder control is necessary to incentivize creation. However,
as already touched upon in previous sections, there is uncertainty as to copyright’s
incentivizing potential. This is principally a question of suitability and necessity: is
granting exclusivity an appropriate and necessary instrument to incentivize creation
and dissemination of the protected subject-matter?
The central question is to what extent granting control over a certain use increases the
incentivizing function of copyright, and how reliable the assessment that granting
control will have that effect is. Assessing the effect of a norm on the incentivizing
function of copyright requires courts to consider a number of issues. In essence, the
outcome depends on the answer to the question whether economic efficiency is
improved. Approaches to this question range from those insisting on the need to only
provide strict incentives, that is protection against substitutability only, to broader
approaches that stress the importance of broad protection that also covers most
derivative uses.
116
147. Copyright and economic efficiency. The following steps, roughly
inspired by the model suggested by Rognstad and Poort,
117
can help clarify to what
extent including a certain use within the scope of copyright can be said to serve
copyright’s incentivizing purpose. Primarily, efficiency will be improved if without
116
Cf. supra, n 96 and n 97 and accompanying text.
117
Rognstad & Poort 2018, p. 133 et seq.
184
control over access to the work the author will be unable to effectively exploit it. In
those cases, the initial investment needed for creation may not be made because it
may prove impossible to recoup it. This explains why the author should be able to
control the first sale of a copy, but not any subsequent sale. Rognstad and Poort
further illustrate that, from an incentivizing perspective, the making of a backup copy
of a DVD should not be subject to exclusivity or remuneration, because the right
holder is able to take this use into account when pricing the DVD.
118
Although this
view seems generally accepted, even the necessity of providing such relatively limited
control to incite creation is not uncontroversial. Some subject-matter will be created
regardless of any incentive or lack thereof.
119
Opinions diverge even further as to
whether including licensing markets within the scope of protection is necessary to
maximize copyright’s incentivizing function. That is, whether copyright should only
protect against substitutionary harm or also against loss of revenue. A strict approach
excludes such non-substitutionary uses from copyright’s scope, viewing them as non-
essential to the incitement of creation.
120
Broader approaches suggest that authors
should be enabled to capture some of the value in secondary markets, essentially
trading access for greater incentives. Some of these approaches rely on (subjective)
121
foreseeability.
122
They take into account whether the use under consideration could
have been reasonably foreseen at the moment of creation (and therefore have played
a role in incentivizing creation). In general, foreseeability arguably should play no role
in judicial norm-creation, as it may lead to unjustified unequal treatment. It is difficult
to justify why an author who wrote a novel in the 1970s should have less control over
certain novel uses of their work on, for instance, the Internet than a contemporary
author.
123
More generally speaking, the theoretical basis for the approaches
promoting control over secondary markets is weak. As Oren Bracha and Talha Syed
have pointed out, such control will often be unnecessary to incite the creation of
118
Ibid., p. 139.
119
See, supra, n 98 and accompanying text.
120
Cf. Lemley 2007, p. 187: “Since the purpose of copyright is to encourage new creation by
ensuring that creators get paid, copyright law's logical concern should be primarily, if not
exclusively, with infringing uses that deprive creators of revenue they could otherwise have
expected to receive.”
121
It should be noted that foreseeability has been principally suggested as a condition for
enforcement in a particular case in relation to a specific author.
122
See, supra, § 143.
123
Strictly speaking, the collection of interests (authorial dignity, incentives etc.) that weigh in
favour of protection should weigh less heavily in the case of the earlier author, as one could
argue the unforeseeable use played no role in incentivizing creation. However, the principle of
equal treatment, as well as the principle of legal certainty (differentiated treatment makes it
difficult for users to assess whether unauthorized use is allowed), which themselves also enter
into the balancing exercise, are in my eyes capable of justifying giving earlier authors the same
protection as contemporary authors. That principle compensates for the reduced weight to the
lack of incentives, so to speak.
185
works for which secondary markets can be expected to generate significant income.
Those will typically be successful works which will generate sufficient income in their
primary market. For other works, control over secondary markets will often be
inconsequential, that is to say the expected return from secondary markets will not be
large enough to make a difference as an incentivizing factor. This suggests that the
increased cost of access may not be set off by the added incentives.
124
Another reason
to be wary of extending protection to secondary markets is that extending already
substantial protection has diminishing marginal benefits while further increasing
costs of access.
125
Finally, the broadest approaches promote the idea that any use of
the work should, in principle, be subject to control by the author. They view copyright
not merely as an incentivizing instrument, but also as a mechanism to promote
optimal use, the idea being that lack of control leads to wasteful duplicative efforts
and “congestion externalities”.
126
The theoretical and empirical foundation for this
position is arguably the weakest. Opponents of this line of thought have pointed out
that when it comes to secondary markets there is no good reason to treat intellectual
creations different from other goods,
127
that such broad protection may lead to a bias
against minority tastes and that there is little evidence that such protection leads to
optimal efficiency while creating substantial social costs,
128
and that centralized
control may actually prevent optimal uses of works.
129
Finally, it must be noted that although granting control over a certain use may at first
glance appear to improve efficiency, other factors may suggest that control must
nonetheless be withheld to ultimately increase overall efficiency. In those instances,
control is not “necessary” from the perspective of efficiency. In the first place,
transaction costs may prevent that a certain use will be made of the work by a third
party, the user, even though that user attaches greater value to the use than the author,
meaning that in the absence of transaction costs they would be able to agree on a
license.
130
This may, for example, be the case with a non-commercial use of a sample
of a song in a derivative work to be shared with friends online. In the second place,
deadweight losses and potential positive externalities may be larger than the added
124
Bracha & Syed 2014, p. 289-269, noting that accounting for product differentiation does
not significantly alter the analysis.
125
Cf. Lemley 2005, p. 1057.
126
See the literature cited, supra, n 97.
127
Cf. Boldrin & Levine 2002, p. 209, who in general question the need for protection beyond
the sale of the “very first copy”. Cf. also Poort 2018, p. 294.
128
Netanel 1996, p. 332-336.
129
Bracha & Syed 2014, p. 272-273 (“the most effective way of finding out what works best is
to let many minds try”), citing Lemley 1997, p. 1068, who adds due to the large number of
potential user-authors it will be very difficult for the right holder to identify who of them will
improve the use of the work.
130
Cf. Cotter 2008, p. 1277-1279 and Gordon 1982, p. 1614 et seq.
186
incentive by providing control over a certain use. For instance, even though a certain
use may be valued higher by the author than by the user, the overall social value may
be even larger.
131
Whether such uses should be free or nevertheless subject to an ex
post obligation to pay damages (but without the element of control in the form of an
injunction), may be a question of choosing between different “necessary” alternatives
and therefore one of balancing.
148. Taking account of uncertainty. There is thus empirical uncertainty
concerning the answer to the question what level of protection best achieves the
incentivizing function of copyright. The foregoing distinguished between three
approaches, ranging from limited control over initial marketing to broad control over
any use. As the suggested level of control over copyright protected subject-matter
increases, the reliability of the underlying premises decreases. This should impact the
answer to the question whether the interpretation or application of a norm “strikes a
fair balance”. This is first and foremost an evidentiary issue: the greater the
interference with the opposing right, the more a court will need to be convinced that
granting exclusive control over a particular use is really necessary. Even if this
evidentiary burden is met, any remaining uncertainty that the proposed scope of
protection is indeed necessary to promote creation and dissemination should be taken
into account when balancing this legislative purpose against competing rights and
interests.
5.4.2.2 Normative uncertainty: the reward as a matter of fairness
149. Normative uncertainty and fairness. Whereas the incentivizing
objective is hampered by empirical uncertainty, the degree of fulfilment achieved by
increased protection of the primary objective is principally clouded by normative
uncertainty.
132
The primary objective of EU copyright has been defined as rewarding
past creation generally, and as the protection of the independence and dignity of
authors and performers specifically. Even if one concludes that a certain form of
copyright protection is not justified by the incentivizing objective, it may be justified
by reference to this desire to reward creation and protect authorial dignity. The
legislature ought not to be categorically precluded to act upon perceived moral
obligations, for instance founded on the general right to human dignity, or simply
decide to reward authors as a matter of appreciation and recognition.
133
Insofar as this
131
Cf. Cotter 2008, p. 1280-1283 and Cotter 2010, p. 733-735. The principal reason that the
user may nonetheless value the use less is that they may be unable to internalize these positive
externalities. An example may be certain educational uses.
132
Insofar as the primary objective of EU copyright law has a utilitarian element, it can be
considered subject to a similar empirical uncertainty as the secondary objective.
133
Lemley 2015 has strongly rejected this position as “faith-based”.
187
limits the rights of others and therefore needs a legal justification, such a justification
can be found in either the protection of human dignity generally, either as an
individual human right or as a matter of general interest, or specifically in the right to
protection of “material interests resulting from any scientific, literary or artistic
production of which he is the author”.
134
Whether and to what extent a certain level of protection justifiably contributes to this
purpose of rewarding the author is, arguably, normatively uncertain. It should be
recalled that determining the relative weight of a principle is typically not morally
neutral. In this case, moral evaluations will define the intrinsic importance and the
degree of fulfilment of the principle to reward creation. Ultimately the answer to such
questions may depend largely on one’s conception of fairness, that is whether one
believes that the author is due control over a certain use regardless of the answer to
the question whether that control promotes efficiency, and thus about the
deontological justifications for copyright law. The does not change if one bases
protection on the fundamental right to protection of material interests in the UDHR
and the ICESCR. As a matter of international law, I argued that these conventions do
not require very broad protection by means of copyright laws. However, even if one
claims, for instance, that that protection “orders the fundamental allocation of the
economic value to the creator”,
135
the weight of that principle is at least in part
determined by reference to moral considerations. It is for this reason that
conceptualizing copyright in terms of a fundamental rights conflict cannot isolate it
from the contentious debate about the deontological justifications of copyright.
Deontological theories in support of the “rights” of authors are all highly contentious.
None of those theories, whether basing the claim to copyright protection on labour,
the link between work and personality, or protection of personal autonomy, is fully
convincing.
136
In principle, it is important to make a distinction between the questions
such as whether authors have inviolable (natural) rights in their works from the
question whether the legislature may grant protection by way of exclusive (and
remuneration) rights based on considerations of fairness. It has been argued in the
preceding sections that the constitutional provisions discussed above do not create a
hard, legal obligation for the EU legislature to grant authors broad rights in their
creations. However, they do provide the legislature with a legal basis for the
introduction of such rights to the detriment (to a certain level) of other rights and
interests, that is to define the material interests and to create and define the
134
Art. 27(2) UDHR and art. 15(1)(c) ICESCR.
135
Geiger 2006b, p. 405, although speaking specifically about the “right to property”.
136
For an overview see, e.g. Spence 2001 and Geiger 2004, p. 23-26 & 36-39.
188
boundaries of property rights. If society deems it fair to provide authors with
protection beyond what is economically efficient it should in principle be permitted
to do so, as long as that protection does not disproportionately interfere with other
rights. Because the role the CJEU plays in protecting individual rights, it is ultimately
its task to further define the protection granted by copyright in accordance with the
spirit of that grant. It is at this stage that deontological considerations come back into
play. As noted, the “constitutionalization” of copyright law cannot isolate it from
contentious natural rights arguments. The ambiguity intrinsic to the constitutional
norms at play necessitates an engagement precisely with such arguments. The CJEU
is thus confronted with the ostensibly difficult task of determining to what extent
including certain uses within the scope of protection can be justified as a mere reward
for past creation.
In this regard, when interpreting or applying copyright law in light of the “fair
balance” to be achieved, it is not sufficient for the CJEU (nor for national courts) to
simply affirm that the objective of the legislature is to grant authors a high level of
protection to allow them to obtain an appropriate reward. Whether ultimately a high
level of protection is necessary to guarantee an appropriate reward can only be the
outcome of the balancing exercise, not the starting point. The Court may thus have to
explicitly grapple with questions of fairness. This is illustrated by the Opinion of AG
Szpunar in Metall auf Metall, who considered that “it seems fair that phonogram
producers should share in the revenue derived from the exploitation of works created
using their phonogram”.
137
Unfortunately, the AG did not substantiate this conclusion
in any way. This is, however, essential if proportionality analysis is capable of
achieving its rationalizing potential. Moreover, if such protection is to be justified in
terms of fairness, one ought to consider both the strength of the argument in favour
of protection as well as countervailing considerations.
The different deontological arguments that may support protection of authors (and to
a lesser extent holders of related rights) will not be elaborately discussed here. Such
discussions can be found elsewhere in abundance. I do, however, want to draw a
parallel with the empirical uncertainties that surround the degree to which greater
copyright protection is capable of fulfilling the secondary objective. It was suggested
that as the level of protection increases, the reliability of the supposition that the
secondary objective is fulfilled to a greater degree decreases. Arguably, the same is
true for the strength of the normative argument in support of protection. The greater
the protection one seeks to justify by reference to deontological arguments, the less
137
Opinion of AG Szpunar in Case C-476/17 Pelham and Others (Metall auf Metall)
ECLI:EU:C:2018:1002, para 97.
189
persuasive those arguments generally are. That is to say, it is easier to justify
protection against purely substitutionary uses based on the idea that the author is
entitled to a reward for their labour or in order to ensure their personal autonomy,
than it is to justify full protection covering all possible uses.
138
Courts should therefore
be sceptical of the suggestion that greater protection necessarily leads to a
proportionally greater attainment of copyright’s objective to provide the author with
an appropriate reward and they must keep in mind that the greater the protection
granted, the better must be the reasons adduced to justify it.
5.4.3 The importance of protection to the overarching objective of
rewarding right holders
150. A simplified approach. At the beginning of this section it was suggested
that the greater the contribution of a certain level of protection to the objectives
underlying copyright law, the greater will be the relative weight of the overarching
objective to provide right holders with remuneration vis-à-vis countervailing rights
and interests. Given the multitude of different objectives pursued by copyright, and
the uncertainties surrounding them, determining the relative weight of this
overarching objective may be a daunting task. In most cases, however, the degree of
fulfilment of the remuneration objective can be approximated by looking at the
commercial importance of a particular use to authors or holders of related right. That
is, the greater the commercial importance of a particular use, the greater its
importance for the fulfilment of the remuneration objective.
The degree of fulfilment of the remuneration objective will be most strongly impacted
if without control over the use under consideration the author will be unable to
effectively exploit it, primarily if the use creates substitutionary harm. This is the case,
for instance, with substantially similar reproductions that aim to offer a substitute for
the original. Such uses may divert customers from existing primary markets and thus
impair copyright’s basic functions. In those instances, lack of protection would
substantially harm the remuneration objective. The same is true for an inability to
control the initial access to the work. Accordingly, the CJEU held in Renckhoff that to
permit the posting of a work to a publicly available webpage, even if it has been
previously communicated on a different website with right holder consent, “would
deprive the copyright holder of the opportunity to claim an appropriate reward for the
use of his work”.
139
138
Cf. Gordon 2004, p. 126
139
Case C-161/17 Renckhoff ECLI:EU:C:2018:634, para 34. See also, supra, § 131.
190
The assessment may be different if the use merely concerns a licensing market for
non-substitutionary uses. Typically, one may assume that such licensing markets are
of lesser importance to the level of reward than those uses which substitute for
offerings made by the author and thus divert customers away.
140
The size of the
(potential) licensing market will play a crucial role in determining the importance of
the use to the level of reward. This size should be determined relative to the overall
commercialization of the work. That is to say, a potentially large licensing market in
an absolute sense, for instance the repeated use of a single still of a blockbuster movie
as a meme on social media, may be small compared to the overall commercialization
of the work.
141
In those cases the importance of those uses to the level of reward should
not be considered of the same weight as typical substitutionary uses that constitute
the primary source of revenue. One can therefore largely agree with the German
Federal Constitutional Court in Germania 3 when it qualified the reproduction of
lengthy parts from plays by Bertolt Brecht in a second play (called Germania 3:
Gespenster am toten Mann) as “insubstantial”, considering there was no noticeable
commercial disadvantage such as loss of sales.
142
Similarly, in Metall auf Metall the
German Federal Constitutional Court considered that permitting the borrowing of
two seconds from a phonogram only constitutes “a slight encroachment”.
143
The
reproduction of such a small sample did not create a risk of substitutionary harm, nor
did the foreclosed licensing opportunity result in “considerable economic harm”. The
latter conclusion was based on the fact that the related right granted to phonogram
producers is not intended to guarantee revenue from the licensing of excerpts from
their recordings, but to protect against piracy.
144
This kind of “quantification”, which
one could qualify as being of light importance to the level of reward, allows a
comparison with the competing interest. By contrast, in cases in which a licensing
140
Cf. Gordon 2013, p. 18.
141
Cf. Senftleben 2004, p.189-193, who argues that the correct reference point for a
determination of the existence of a conflict with the normal exploitation within the meaning
of the three-step test should be the overall commercialization of the work. That is, in his
opinion, a conflict can only occur if the author is “divested of an actual or potential, typical
major source of royalty revenue that carries weight within the overall commercialisation of
works of the relevant category” (p. 194).
142
German Federal Constitutional Court (First Senate), 29 July 2000, 1 BvR 825/98 –
Germania 3, English Translation published in EIPR 2013, p. 646, para 24. Of course, as argued
here, the loss of potential licensing revenue should not be entirely disregarded, but merely
valued less than loss of sales, at least typically.
143
Compare this with the conclusion of the CJEU in the same case that, in essence, the use of
a sample from one phonogram into a second phonogram does not fall within the scope of the
exclusive reproduction right granted to phonogram producers since such use does not
interfere with the purpose of enabling them to realize satisfactory returns on their investment.
See, supra, § 37 and 105, and, infra, § 161.
144
German Federal Constitutional Court (First Senate), 31 May 2016, 1 BvR 1585/13 – Metall
auf Metall, English translation published in IIC 2017, p. 343, paras 101-104.
191
market represents a larger share of revenue, its importance to the level of reward may
rise.
An additional factor to consider, in particular in respect of licensing markets, is that
the reliability of the premise that granting control over specific markets promotes the
remuneration objective may be relatively weak. If the degree of fulfilment increases,
but the reliability decreases, the relative weight accorded to the remuneration
objective vis-à-vis conflicting rights may remain more or less the same. This may
especially impact the assessment in those cases where the degree of interference with
the countervailing right or interests is particularly strong. It is suggested this has two
specific consequences, one evidentiary and one justificatory. The former relates to the
potential weak reliability of the empirical premises underlying the secondary
objective, the latter to the weak reliability of the normative premises underlying the
primary objective. First, as the degree of interference with a countervailing right or
interest increases, the standard of proof concerning the importance of a particular
market to the overall commercialization of a work should increase. The 2006
Mulholland Drive decision by the French Supreme Court is illustrative of how not to
proceed in this regard. In question was whether a user could rely on the (French)
private copying exception to require the removal of technological protection measures
from a DVD in order to make a private copy on a VHS tape. The Supreme Court
concluded that it cannot, because such a use would conflict with the three-step test by
creating a conflict with the normal exploitation of the work.
145
Without any
evidentiary basis, the Court suggested such a conflict existed due to “the risks related
to the new digital environment as well as the safeguard of copyrights and the
economic importance that the exploitation of the work in the DVD format may have
for the coverage of the costs of cinematographic production”.
146
Similarly, the stronger
the degree of interference, the better the normative reasons adduced to justify it must
be. The mere statement that “it seems fair” to grant control over a certain use, ought
not to be sufficient, certainly when the degree of interference with a conflicting
fundamental right is serious.
147
5.5 Other rights and interests
151. Other issues. Two more issues should briefly be addressed. First, what rights
and interests other than those so far discussed should play a role in determining the
145
About the three-step test see, infra, Section 6.5.4.
146
French Supreme Court (First Civil Chamber), 28 February 2006, Studio canal, Universal
Pictures vidéo France v. UFC Que Choisir, Stéphane X (translation and critical comments by
Mazziotti 2008, p. 206). Cf. also Lucas 2010, p. 277.
147
Cf. Opinion of AG Szpunar in Case C-476/17 Pelham and Others (Metall auf Metall)
ECLI:EU:C:2018:1002, para 97. See also, supra, n 137 and accompanying text.
192
scope of protection? Second, should related rights, which typically have different
underlying justifications than authors’ rights, be subject to an individualized
assessment?
152. Rights and interests. Where the CJEU maintains that the interpretation
and application of copyright must ensure to “strike a fair balance between rights and
interests”, it begs the question which other interests must be considered, in addition
to the (general) interest to ensure that authors (and other right holders) are enabled
to obtain an appropriate reward. Insofar as it is a question of interpretation of the
scope of protection offered by EU specifically, that is by harmonized norms, it is
questionable that the CJEU should pay particular attention to interests of authors that
neither find recognition in positive law nor which the legislature has intended to
protect. For example, authors may have an interest in absolute control over the use of
their work, but this is not an interest that a court should concern itself with. Some
interests of authors may of course be subject to legal protection. Importantly, moral
rights, themselves guaranteed to a certain extent by fundamental rights,
148
grant an
extra layer of protection in all member states. But it is debatable whether the CJEU,
in determining the scope of (harmonized) economic rights and the limitations and
exceptions thereto, should take extensive account of the moral rights-interests of
authors. One could argue it should not do so for two related reasons, both relating to
the lack of harmonization of moral rights. First, the lack of harmonization means it
would be difficult to find a single standard along which the CJEU could measure to
what extent those interests may be impacted. At most it can take into account the
lowest common denominator. Second, an approach by the CJEU that would take
account of moral rights might rob Member States of being able to maintain their own
approaches to moral rights protection, even though they have explicitly been left
outside the scope of harmonization. In spite of the this, it is true that in respect of
authors and performers EU law also intends to safeguard their dignity. This does to a
certain extent open the door for the consideration of interests other than those strictly
related to the exploitation of their creations in order to obtain a remuneration, for
instance the exercise of exclusive economic rights to prevent the circulation of works
that the author no longer wants in public view.
149
If it is questionable that general “reputational” interests of authors themselves (i.e.
moral rights) should play a role in determining the scope of protection, this is also
true – even more so – for such interests of right holders other than authors.
148
Principally by art. 15 ICESCR. Additionally, protection of moral interests can be based on
the right to protection of private life.
149
See, for an example, the discussion of Afghanistan Papers and Spiegel Online, infra, § 201.
193
Nevertheless, in Deckmyn the CJEU considered that such interests should be taken
into account when determining whether the application of the parody exception
strikes a fair balance. In particular, the Court held that if a parody conveys a
discriminatory message right holders “have, in principle, a legitimate interest in
ensuring that the work protected by copyright is not associated with such a
message”.
150
Apart for risks of private censorship created by this ruling,
151
it is unclear
what the legal basis is for the recognition of this interest as legitimate, in particular in
respect of successors in title of the author, who typically will not benefit from moral
rights protection.
152
153. Related rights. As to the second question: are different “rights and
interests” to be considered when dealing with related rights compared to when
dealing with authors’ rights? One could argue that the sole objective of at least some
of the related rights is to promote the investment necessary for the creation of the
subject matter protected by those rights. That is to say, the purpose for the grant of a
bundle of exclusive rights to producers of phonograms and of first fixations of films,
to broadcasting organizations, and following the implementation of the DSM
Directive also to publishers of press publications, is exclusively a means to an end. If
one accepts that the basis for granting these rights is narrower than with respect to
the rights of authors and (perhaps) performers – lacking the deontological component
– it seems logical that this is reflected in the scope of protection. Although, the
difference in scope is principally expressed through a difference in term of protection,
the different objectives underlying authors’ and performers’ rights and related rights
can certainly play a role when determining the scope of rights and their limitations
and exceptions. In particular when applying a limitation or exception to a specific set
of circumstances a court may have to assess whether that specific use strikes a fair
balance and respects the three-step test in light of their specific rationale.
153
But this
difference may also be reflected in the more abstract determination of the scope of
exclusive rights, as the CJEU itself illustrated in Metall auf Metall, in which it
emphasized the specific purpose of the rights granted to phonogram producers in
determining the scope of both their reproduction and distribution right.
154
150
Case C-201/13 Deckmyn and Vrijheidsfonds ECLI:EU:C:2014:2132, paras 29-31.
151
Noted by many commentators. See the references in Jongsma 2017, p. 666, n 71-76.
152
Cf. Rosati 2015, p. 527-528.
153
About the relation between the fair balance assessment and the three-step test, see, infra,
Section 6.5.4.
154
See, supra, § 37 and 46.
194
5.6 Synthesis
154. The right holder side of the balance. This Chapter focused on the
question which “rights and interests” of authors and related rights holders should be
considered when striking a fair balance in the context of the interpretation and
application of copyright law. I suggested that because the right to property, as it is
protected both in the ECHR and the EU Charter, only protects existing possessions
(or legitimate expectations thereto) that right does not affect the determination of the
scope of protection of copyright. The UDHR and the ICESCR do require a certain
degree of protection of authors, but they do not impose strong state obligations. At
most they require that the author receive a just or fair remuneration for their work
enabling them to enjoy an adequate standard of living. Arguably, the most important
interest of authors (and other right holders) to be weighed flows from the legislative
objective to grant them an appropriate reward. This reward is granted both as an end
in itself, for which the UDHR and ICESCR do provide a certain basis, and to reach
certain public policy objectives, notably to incentivize creation. The appropriateness
of this reward must be determined in light of these purposes. That means that
granting copyright protection must be suitable and necessary to achieve (one of)
them, and may not disproportionately interfere with other rights or (public) interests.
To what extent rewarding authors indeed contributes to these purposes is uncertain.
To what degree granting copyright protection contributes to copyright’s instrumental
purposes is empirically uncertain. Moreover, the appropriate scope of protection is
subject to reasonable (moral) disagreement and therefore normative uncertainty.
Generally, it appears true that the greater the scope of protection, the less reliable the
empirical and normative assumptions in support of it will be. This must be taken into
consideration in the balancing process. In particular in those cases in which the
degree of interference with the opposing right is deemed (very) serious, this
uncertainty may contribute to a conclusion that the interest of the author in an
appropriate reward is not capable of outweighing that opposing right.
195
6 FUNDAMENTAL RIGHTS BALANCING AND THE
INTERPRETATION AND APPLICATION OF THE LAW
6.1 Introduction
155. Introduction. Parts I and II have illustrated that on many occasions the
outcome of a particular case in front of the CJEU has hinged on what it considers to
be in accordance with a fair balance of rights and interests, in particular when
fundamental rights are affected by the decision. Chapter 5 has argued that the main
interest of right holders to be weighed in this regard is found in the legislative purpose
to enable them to obtain a reward, and not in any fundamental right to intellectual
property. This chapter discusses more specifically how proportionality analysis and
in particular balancing of fundamental rights can (and should) influence the
interpretation and application of rights and of limitations and exceptions in EU
copyright law. The CJEU case law that was discussed in Chapter 4, in particular in
Section 4.3.2.3, is used as a starting point to develop a framework for such use of
fundamental rights arguments. In light of the analysis carried out in Part II, (further)
inconsistencies and potential problems of the CJEU approach are identified and
methodological improvements suggested.
Particular attention is given to the difficulties that arise due to the incomplete
harmonization of the system of exclusive rights and, in particular, limitations and
exceptions. The lack of full harmonization implies that the fundamental rights of the
EU Charter can be used by the CJEU both as independent interpretative arguments
in the course of the determination of the scope of rights and of limitations and
exceptions to the extent that they are harmonized, as well as a tool to review the
exercise of Member State discretion in the implementation of EU law. The latter may
be particularly true in respect of limitations and exceptions, whose harmonization is
far from comprehensive.
1
This Chapter starts with some general observations (Section 6.2). Subsequently, I
discuss the relation between the definition of protected subject-matter and the
concept of balance (Section 6.3) and the potential impact of fundamental rights on
the scope of exclusive rights (Section 6.4). Finally, and more extensively, I consider
the complicated interaction between the concept of fair balance and the interpretation
and application of limitations and exceptions in light of their partial EU
harmonization (Section 6.5).
1
See, supra, § 50, and, infra, Section 6.5.
196
6.2 General observations
156. A duty of consistent interpretation. On several occasions the CJEU has
identified a general duty to construct EU law in light of fundamental rights. In
Promusicae the CJEU recognized a duty for Member States to “rely on an
interpretation of the directives which allows a fair balance to be struck between the
various fundamental rights protected by the Community legal order”. In Afghanistan
Papers and Spiegel Online the Court further specified that national courts must “rely
on an interpretation [of the exclusive rights and limitations and exceptions under
consideration] which, whilst consistent with their wording and safeguarding their
effectiveness, fully adheres to the fundamental rights enshrined in the Charter”.
2
There is no good reason why the same duty does not equally bind the CJEU.
Appropriately, in numerous decisions the CJEU itself has adopted or rejected a
particular interpretation for (not) striking a fair balance, although it has not done so
within a coherent framework, as I argued in Section 4.4. Such cases can be
characterized as instances of indirect horizontal effect of fundamental rights.
3
157. Interpretation as a balancing exercise. How to conceptualize the
taking into account of fundamental rights in the process of interpretation? As
explained more elaborately in Chapter 2, the CJEU looks, like most courts, at wording,
context and purpose when interpreting legal provisions. This process of judicial norm-
making in the context of interpretation is itself similar to the process of balancing in
that textual, systemic and teleological arguments are weighed against each other.
4
Arguably, these arguments receive their compelling character from legal principles
such as legal certainty, equality, democracy/separation of powers and – importantly
– respect for fundamental rights, all originating in the idea of the rule of law.
5
In this
regard, the fundamental rights argument is merely one particular type of systemic
argument, albeit with an arguably high intrinsic importance. For instance, an
interpretation of a norm in accordance with its clear wording is in the interest of legal
certainty and respects the separation of powers by following, most probably, the will
of the legislature. A relatively weak fundamental rights argument may not be able to
outweigh it. Along these lines, the German Federal Constitutional Court has held that
“respect for the legislature … requires an interpretation in conformity with the Basic
Law which is consistent with the wording of the statute and preserves the
2
See, supra, § 105,
3
For a fairly recent monograph on horizontal effect of fundamental rights in the EU in general,
see Walkila 2015.
4
Cf. Alexy 2003a, p. 436, Feteris 2008, Hart 2012, p. 135, Huysmans 2015, MacCormick 2005,
p. 237 and MacCormick & Summers 1991, p. 528.
5
Cf. Ehm 2010.
197
fundamental aim of the legislature” and that “[t]he interpretation may not lead to an
essential element of the legislative purpose being missed or distorted”.
6
Accordingly,
one can in principle agree with the CJEU’s ruling in Afghanistan Papers and Spiegel
Online that an interpretation that favours a particular fundamental right must first of
all be permitted by the wording of the provision in question.
Traces of this balancing approach can be found in AG Szpunar’s Opinion in Metall auf
Metall. The AG concluded his analysis by remarking that “[i]n the judicial review of
the application of the current provisions, fundamental rights play a different role: a
sort of ultima ratio which cannot justify departing from the wording of the relevant
provisions except in cases of gross violation of the essence of a fundamental right”.
7
In his opinion, neither the text of the reproduction right, nor the text of the quotation
exception could be interpreted in a way that would permit the use under
consideration. Although the AG focused primarily on the question whether
fundamental rights itself can constitute a limitation to copyright, his ultimate
conclusion nevertheless suggests that, in the course of interpretation, the strength of
the textual argument must this be weighed against the degree of interference with a
fundamental right. In Metall auf Metall he apparently considered the textual
argument so strong that this could only be outweighed in case of a “gross violation of
the essence of a fundamental right”.
8
Nevertheless, aside from general problems
relating to the definition of the essence of rights,
9
the use of the essence standard in
the course of interpretation as a limit to textual interpretation is problematic, as in
those cases the wording is likely to be so strong that the interpretation consistent with
fundamental rights is likely to completely distort the provision’s textual meaning. This
would also be at odds with the approach suggested by the CJEU in Afghanistan
Papers and Spiegel Online, which rejects an interpretative outcome that conflicts with
the wording of a provision. In those cases, the fundamental rights conflict is probably
better resolved by withholding particular remedies
10
or, in cases of a categorical
conflict, invalidation of the provision in question.
158. Striking a fair balance. In principle, an interpretation in light of
fundamental rights must weigh the degree of interference/fulfilment of that right
caused by a particular interpretation against the strength of other arguments. The
6
German Federal Constitutional Court (First Senate), 30 August 2010, 1 BvR 1631/08 –
Drucker und Plotter, para 61.
7
Opinion of AG Szpunar in Case C-476/17 Pelham and Others (Metall auf Metall)
ECLI:EU:C:2018:1002, para 98.
8
I am not convinced that the textual argument was indeed that strong. See Jongsma 2019, p.
7-8.
9
See, supra, Section 4.4.1. Cf. also, infra, § 168 and § 190.
10
See, infra, Chapter 7.
198
concept of fair balance itself, understood as the outcome of a balancing exercise
between different rights and interests, is not something that can directly aid in this
interpretative process, other than to perhaps exclude certain outcomes as a per se
disproportionate interference with a fundamental right. Although at times seemingly
presented as such, it is arguably not itself an interpretative argument that can be
balanced against other arguments. This would require that the strength of this fair
balance argument as such can be approximated, by determining by how much one
right or interest outweighs the other, that is the difference between the degree of
fulfilment of the one and the degree of interference with the other. However, although
balancing is – in my opinion – possible by comparing the strength of arguments on
an ordinal scale, the difference in strength of the two arguments that are compared
can only be determined if they are commensurable on a cardinal scale. This is
questionable, as was discussed in § 71.
Although it would go beyond the scope of this study to develop an abstract and
detailed model of legal reasoning in the form of balancing, the use of (fundamental
rights) balancing in the course of interpretation can to a certain degree be simplified.
Often the interpretation of concepts such as “reproduction” and “quotation” will
resolve around the question whether the use in question falls within (broad or
inclusive interpretation) or outside (narrow or exclusive interpretation) their scope.
If the wording of the provision is ambiguous, permitting either interpretation to a
similar degree, and no specific legislative intention can be discerned, the choice
between a broad and narrow interpretation will often depend on the balance between
the general legislative intention to guarantee authors and related right holders a
reward and the rights and interests of users and the public interest. To that effect, the
German Federal Constitutional Court has held that only “[i]f several interpretations
are possible in the court’s interpretation and application of provisions of the non-
constitutional law, the court must give preference to an interpretation that
corresponds to the values enshrined in the constitution”.
11
In the words of the CJEU:
the interpretation must allow a fair balance to be struck. The following sections
discuss in more detail the interpretation in light of fundamental rights of copyright’s
subject matter, exclusive rights, and limitations and exceptions.
11
E.g. German Federal Constitutional Court (First Senate), 19 July 2011, 1 BvR 1916/09 – Le
Corbusier-Möbel, para 86 and German Federal Constitutional Court (First Senate), 31 May
2016, 1 BvR 1585/13 – Metall auf Metall, English translation published in IIC 2017, p. 343,
para 82.
199
6.3 The subject-matter of copyright and the concept of balance
159. Subject-matter and originality. It may be asked whether fundamental
rights arguments should affect the determination of the subsistence of copyright. As
far as the level of originality is concerned this is questionable, even though the
originality requirement undeniably is one element that determines to overall balance
struck by copyright law.
Abraham Drassinower has vociferously objected against viewing originality as the
outcome of a balancing exercise. He argues – in my opinion correctly – that a choice
for a specific originality standard entails a choice for the protection of a certain value:
protection of specifically the value of authorship, achieved by adopting a standard of
originality focusing on skill and judgement or creativity, or more generally the
protection of value generated per se, by following the sweat of the brow doctrine.
Proportionality analysis, which ultimately consists of weighing different values
against each other, cannot itself determine which values should be balanced.
12
The
originality criterion should thus not be approached as a question of balance, but
principally as one of teleology. It works as a threshold requirement. How high the
threshold is, is principally a question related to the purpose copyright protection is
intended to serve. After the threshold is met, the work is in principle protected. It is
when determining the precise scope of protection that countervailing interests come
into play. In this regard it is generally true that the higher degree of originality, the
greater the scope of protection will be.
13
This is not to say that balancing considerations do not affect the determination of the
subsistence of copyright at all. For instance, drawing the line between unprotectable
ideas and protected expression reflects a balance between the desire to reward and
the freedom of others to engage in follow-on creation. Moreover, the question whether
certain subject-matter is capable of attracting copyright protection in the first place
can involve similar considerations. For instance, the exclusion from protection by
copyright of the taste of a food product in Levola Hengelo, can be justified by
considering that the interest of the public in legal certainty outweighs the objective of
rewarding authors for their creative endeavours.
14
12
Drassinower 2009, writing in particular about the rejection, in the name of balance, by the
Canadian Supreme Court of the sweat of the brow doctrine in favour of the skill and judgement
standard in CCH Canadian Ltd. v. Law Soc'y of Upper Can., [2004] 1 S.C.R. 339. See, in
particular, ibid., p. 995-999.
13
Cf. Mylly 2009, p. 346.
14
Case C-310/17 Levola Hengelo ECLI:EU:C:2018:899, in particular para 40.
200
6.4 The interpretation of exclusive rights
160. Necessity. What is the specific role of fundamental rights in the
interpretation of ambiguous exclusive rights provisions? An interpretation of
copyright law that ensures a fair balance depends on taking account of the interaction
between exclusive rights and limitations and exceptions. In the case of exclusive
rights, a narrow interpretation in order to protect a fundamental right, limiting the
degree to which copyright can attain its objectives, must be necessary. Arguably, it is
not necessary if the opposing right or interest is safeguarded by another norm. Thus,
a narrow interpretation of (a concept in) an exclusive right, limiting the opportunity
for right holders to obtain a reward, may be rejected in favour of a broad
interpretation if a limitation or exception exists which safeguards the right of the user.
Accordingly, the CJEU held in Renckhoff that an interpretation of the right of
communication to the public that would bring a particular educational use within its
scope need not be rejected to protect the right to education since Member States may
introduce a limitation or exception to safeguard precisely that right.
15
161. Balancing. In other cases, the scope (broad or narrow) of a concept may
depend on balancing the degree of fulfilment a particular interpretation brings to the
legislative intention to reward creation and the degree of interference resulting from
that interpretation with the opposing right. For instance, the question whether the
unrecognizable use of a two second sample from one phonogram in another
phonogram constitutes a “reproduction” within the meaning of the exclusive
reproduction right may thus boil down to the question whether such use promotes a
fair balance of the interest in a reward and the right to freedom of arts. In Metall auf
Metall, the CJEU suggested that a narrow interpretation of the concept of
reproduction must be adopted, since a broad interpretation would interfere with the
freedom of the arts while not interfering “with the opportunity which the producer
has of realising satisfactory returns on his or her investment”.
16
On the one hand, this
15
Case C-161/17 Renckhoff ECLI:EU:C:2018:634, paras 42-43.
16
See, supra, § 37 and 105. One could well argue that often this concerns, strictly speaking,
not an issue of necessity, since adjudicating the use under a limitation or exception often shifts
the burden of proof to the defendant. This implies the degree of fulfilment of a fundamental
right achieved by excluding the use from the scope of a fundamental right or alternatively by
bringing it within the scope of a limitation or exception, may not be the same. Nevertheless, it
is arguable that an abstract balancing exercise will as a rule equally favour a broad
interpretation of exclusive rights: the degree to which copyright will be able to fulfil its
purposes is larger if an issue is resolved under a limitation or exception, instead of solely under
exclusive rights, due to the inclusion of additional conditions for the applicability of the former
provisions aimed at safeguarding those purposes. It is submitted that generally this degree of
fulfilment will be capable of outweighing the arguably minor degree of interference created by
the shifting burden of proof. Ultimately, as a matter of systematic interpretation it makes good
sense to include uses within the scope of exclusive rights if a limitation or exception exists for
that use.
201
may suggest the rejection of the broad interpretation was a matter of lack of suitability
or necessity to achieve the purpose of that right. It would mean that the CJEU is not
convinced that the inclusion of such licensing markets is necessary for the
incentivizing of the production of phonograms. On the other hand, and perhaps more
likely, one can understand the CJEU’s consideration as one of balancing. In that case,
a broad interpretation, extending to the creative re-use of short samples, is considered
to contribute to the purpose of guaranteeing a reward (or: return on investment) for
the phonogram producer, although arguably only in a minor way. This is in essence
what the German Federal Constitutional Court held when it considered that
permitting the use of the sample would only create “a slight encroachment” on the
right of the phonogram producer.
17
The CJEU can be understood as implicitly
considering that the freedom of arts outweighs the interest of the phonogram
producer in a reward, when it considers that a broad interpretation would not
contribute to guaranteeing satisfactory returns. However, a proper evaluation of the
strength of the opposing principles, as can be found in the decision of the German
Federal Constitutional Court, is lacking.
In regard to Metall auf Metall I have suggested elsewhere that the use under
consideration in that case can be safeguarded by a broad interpretation of the concept
of “quotation for purposes such as criticism or review”.
18
Had that been accepted
outright, the reproduction right could have been interpreted broadly. However, the
CJEU rejected such an interpretation insofar as it is not possible to identify the quoted
subject-matter in the quoting subject-matter.
19
Consequently, presuming no other
limitation or exception in the acquis applies,
20
the CJEU opted for a narrow
interpretation of the reproduction right, excluding non-recognizable reproductions
from its scope, in order to protect the freedom of the arts.
162. The problem of partial harmonization. In principle, it makes good
sense to interpret rights and limitations and exceptions holistically, ensuring that the
body of rules as a whole preserves a fair balance. However, in the EU context this gives
rise to a particular problem. Unlike the exclusive rights that have been the subject of
harmonization, most limitations and exceptions in the acquis are optional. One can
therefore question the wisdom of broadly interpreting (fully harmonized) rights based
on the argument that fundamental rights can be protected by a particular limitation
17
See, supra, Chapter 5, n 144 and accompanying text.
18
Jongsma 2019, p. 10.
19
Case C-476/17 Pelham and Others (Metall auf Metall) ECLI:EU:C:2019:624, paras 71-73.
20
A likely candidate might have been the pastiche exception. On its potential scope see, e.g.,
Hudson 2017, Senftleben 2019a and Senftleben 2019b.
202
or exception, if that limitation or exception may not be available in one or more
Member States.
There is no clear solution to this problem.
First, one could leave the delimitation of the precise scope of exclusive rights to
national courts, depending on the implementation of limitations and exceptions in
the Member State in question. This approach would eviscerate the harmonization of
exclusive rights and can therefore not be seriously considered.
Second, it could be considered that, despite the intentionally optional nature of
certain limitations and exceptions in the acquis, their implementation is nevertheless
necessary if they are intended to safeguard fundamental rights. That is to say, in the
absence of an implementation of, for instance, the parody exception a Member State’s
copyright law could be deemed incapable of striking a fair balance. This would
constitute a far-reaching act of harmonization through interpretation of the Charter.
Moreover, it would inevitably lead to the exemption from infringement also of acts
whose prohibition might not constitute a disproportionate limitation of the
fundamental right in question.
Third, one might suggest that a potential solution to the problem of partial
harmonization of limitations and exceptions could be found in ignoring fundamental
rights altogether in the course of interpretation of exclusive rights. This, however, may
result in a too broad interpretation of exclusive rights where no accommodating
limitation or exception exists altogether. Conversely, one could give exclusive rights a
narrow interpretation, proceeding from the assumption that Member States have not
implemented a limitation or exception. This will inevitably result in an unnecessarily
narrow scope of rights, and take away from the freedom of Member States to tailor
the scope of protection by providing for a certain limitations or exception or not.
The rejection of this third option ultimately brings us back to the position adopted by
the CJEU, outlined above: if the use in question constitutes the exercise of a
fundamental rights and is not covered by any limitation or exception in the acquis,
exclusive rights must be interpreted in light of the impact on that right. However, it is
not necessary to resort to a narrow interpretation of an exclusive right if the affected
fundamental right falls within the (prima facia) scope of one of the limitations or
exceptions in the acquis. In Member States that have not implemented the provision
permitting the introduction of a limitation or exception for the use in question, any
consequent limitation of a fundamental right must be assessed on a case-by-case
basis. In concrete cases, where the enforcement of copyright would result in a
disproportionate interference with that fundamental right, the resulting conflict is
203
arguably best resolved by refusing to grant particular remedies, as will be defended in
in Chapter 7, in particular in Section 7.3.3.
6.5 The interpretation and application of limitations and exceptions
163. Dual impact. Due to the partial harmonization of the limitations and
exceptions to exclusive rights, Charter rights have a dual impact on the determination
of their scope. First, they are to be taken into account by the CJEU when interpreting
harmonized, autonomous concepts and by national courts when applying the national
implementations. Second, to the extent that Member States have discretion in the
transposition of limitations and exceptions into national law, the exercise of this
discretion may not exceed the boundaries set by the Charter. Consequently, that
exercise is subject to review by the CJEU. The latter is complicated by the fact that the
CJEU has been rather enigmatic about the exact margin of discretion of Member
States where the implementation of limitations and exceptions is concerned. This
means it is also difficult to predict the exact impact of the Charter on the scope of this
discretion.
This section starts with a brief discussion of the Member States’ margin of discretion
in the transposition of limitations and exceptions (Section 6.5.1). This is followed by
a more elaborate discussion of the impact of fundamental rights on the interpretation
of specific concepts (Section 6.5.2) and on the implementation and application of
open norms (Section 6.5.3), and finally by a discussion of the role of the three-step
test (Section 6.5.4).
6.5.1 The Member States’ margin of discretion
164. A case-by-case assessment. In Afghanistan Papers and Spiegel Online
the CJEU was essentially asked, in general terms, whether “the provisions of EU law
on limitations and exceptions [in the InfoSoc Directive Directive] allow any latitude
in terms of implementation in national law”. The CJEU answered that the scope of
the Member States’ discretion in this regard must be determined on a case-by-case
basis, according to the wording of the provision in question and their potential impact
on the functioning of the internal market. One can expect the CJEU to adopt a similar
approach to the determination of the margin of discretion in respect of limitations
and exceptions found in other directives.
On several earlier occasions, the CJEU had been rather prescriptive in terms of
defining the scope of limitations and exceptions. For instance, in Deckmyn the CJEU
rejected several restrictive criteria for the application of the parody exception that had
been suggested to it by the referring Belgian court, as they had been developed over
204
time by the Belgian courts, as being contrary to a uniform interpretation of the
autonomous concept of “parody”. More generally, the CJEU held in Deckmyn that
“[a]n interpretation according to which Member States that have introduced that
exception are free to determine the limits in an unharmonised manner, which may
vary from one Member State to another, would be incompatible with the objective of
that directive”.
21
In so holding, it reaffirmed what it had already held in its earlier
judgements in Padawan, DR & TV2 Danmark and ACI Adam, namely that even
though the implementation of a particular exemption is optional, Member States are
not free to determine the limits of that exemption.
22
This led numerous commentators
to conclude that Member States discretion in respect of limitations and exceptions
was limited to the choice to implement the optional provisions, and did not extend to
defining their scope.
23
Nevertheless, in Afghanistan Papers and Spiegel Online the CJEU concluded with
regard to the exemptions in article 5(3)(c), second case and article 5(3)(d) of the
InfoSoc Directive that they leave Member States “significant discretion”, in particular
due to the inclusion in those provisions of the open norms “to the extent justified by
the informatory purpose” and “in accordance with fair practice, and to the extent
required by the specific purpose”, respectively.
165. The contours of discretion. It thus appears there is a bifurcation in terms
of Member State discretion where limitations and exceptions are concerned.
Autonomous concepts (those concepts which do not refer to national law for the
purpose of determining their meaning and scope) that are specific, such as parody,
quotation, reporting of current events et cetera, do not leave Member States any
discretion in terms of implementation. On the other hand, where a particular
provision includes an open norm, Member States have a certain latitude to tailor the
scope of that provision through the concretization of those open norms. Where
Member States do possess discretion, they must exercise it within the boundaries set
by EU law. Specifically, as the CJEU specified in Afghanistan Papers and Spiegel
Online, Member States must (i) comply with all conditions laid down in those
21
Case C-201/13 Deckmyn and Vrijheidsfonds ECLI:EU:C:2014:2132, para 16.
22
See Case C-467/08 Padawan ECLI:EU:C:2010:620, paras 32-36; Case C-510/10 DR and
TV2 Danmark ECLI:EU:C:2012:244, paras 33-36 and Case C-435/12 ACI Adam and Others
ECLI:EU:C:2014:254, paras 34 and 49. See also Opinion 3/15 Opinion pursuant to Article
218(11) TFEU (Marrakesh Treaty to Facilitate Access to Published Works)
ECLI:EU:C:2017:114, para 122.
23
Cf., e.g., Opinion of the European Copyright Society concerning Limitations and exceptions
as key elements of the legal framework for copyright in the European Union: Opinion on the
Judgment of the CJEU in Case C-201/13 Deckmyn (1 November 2014), retrieved from
<https://europeancopyrightsocietydotorg.files.wordpress.com/2015/12/deckmyn-opinion-
final-with-signatures.pdf> accessed on 28 October 2019, para 20. See, similarly, Grünberger
2015, p. 285, Rosati 2014, p. 592 et seq. and Xalabarder 2016, p. 638.
205
provisions as well as general principles of EU law, (ii) not undermine the objective of
providing a high level of protection and proper function of the internal market, nor
the effectiveness of limitations and exceptions, (iii) comply with the three-step test,
and (iv) rely on an interpretation which allows a fair balance to be struck.
24
Two particular factors further complicate the question of Member State discretion
concerning the implementation of the InfoSoc Directive. First, the implementation of
every limitation and exception must comply with the three-step test of article 5(5).
This is itself an open norm (see Section 6.5.4), which begs the question if Member
States are free to also further tailor the scope of limitations and exceptions that are
based on provisions which themselves do not include an open norm. For instance,
may Member States lay down the further conditions for the applicability of the parody
exception in order to protect the normal exploitation of the work or the legitimate
interests of right holders? Second, not only must Member States rely on an
interpretation which allows a fair balance to be struck, it appears to follow from the
Deckmyn decision, as I already suggested in §116, that the application in a particular
case of a limitation or exception is subject to an overarching balancing exercise. It is
true that the CJEU held so specifically in regard to the parody exception, but it
reached this conclusion based on the general consideration with respect to all
“exceptions to the rights set out in Articles 2 and 3 [of the InfoSoc Directive], which
are provided for under Article 5 thereof, [and which] seek to achieve a ‘fair balance’
between, in particular, the rights and interests of authors on the one hand, and the
rights of users of protected subject-matter on the other”.
25
The same can undoubtedly
be said of the exemptions introduced by other directives. If it is accepted that any
application of an exemption must strike a fair balance, one can ask whether this must
entirely be a case-by-case assessment, or whether Member States, when they
implement limitations and exceptions, are permitted to demarcate (to a certain
extent) the boundaries of this fair balance by introducing specific conditions.
It is against this background that the impact of fundamental rights on the scope of
limitations and exceptions in the acquis must be understood. This scope is dictated
by the combination of the interpretation of specific autonomous concepts and the
implementation and application of open norms, which are discussed in the next two
sections.
24
Case C-469/17 Funke Medien NRW (Afghanistan Papers) ECLI:EU:C:2019:623, paras 39-
53 and Case C-516/17 Spiegel Online ECLI:EU:C:2019:625, paras 24-38.
25
Case C-201/13 Deckmyn and Vrijheidsfonds ECLI:EU:C:2014:2132, paras 26-27. For the
explicit consideration that also art. 5(3)(c) InfoSoc Directive must be applied so as ‘to strike a
fair balance, see England And Wales Cricket Board Ltd & Anor v Tixdaq Ltd & Anor [2016]
EWHC 575 (Ch), para 73.
206
6.5.2 The interpretation of specific (autonomous) concepts
166. Specific concepts. The system of limitations and exceptions in the acquis
communautaire is characterized by its closed nature. The various limitations and
exceptions each cover a use for a specifically defined purpose. To that effect, their
scope is in the first place determined by specific concepts such as “private use”,
26
“use
for the sole purpose of illustration for teaching”,
27
“use … in connection with the
reporting of current events”
28
and “quotations”
29
. As these concepts typically do not
refer to national law for the purpose of determining their meaning or scope, they are
autonomous concepts of EU law, which require a uniform interpretation.
30
The question may arise whether a specific use is covered by such a particular concept,
which often may be open-textured despite their specific nature. As noted in Section
6.2, the impact of fundamental rights on this determination may be particularly felt if
wording and intention permit an interpretation either way. Like a narrow
interpretation of exclusive rights is not necessary where a particular limitation or
exception exists to safeguard the exercise of a fundamental right,
31
a narrow or strict
interpretation of (a concept in) a limitation or exception must be rejected if it limits
the exercise of a fundamental right while the interest of the author is safeguarded by
a more specific norm. This is generally the case if the applicability of the limitation or
exceptions is conditional on compliance with an open norm which itself requires a
proportionality analysis, requiring the determination that the degree of fulfilment of
the fundamental right if the use were allowed exceeds the detriment caused to rights
and interests of right holders. Appropriately, in Afghanistan Papers the CJEU settled
on a liberal interpretation of the concept of “use of works … in connection with …
reporting” within the meaning of article 5(3)(c), second case, of the InfoSoc Directive,
noting that the use in question must still satisfy “the other conditions set out in that
provision”, including that it is “justified by the informatory purpose”.
32
The latter
determination requires a proportionality analysis. The CJEU itself stated as much in
its Spiegel Online judgement, which was handed down the same day as the judgement
in Afghanistan Papers.
33
Similarly, in Spiegel Online the CJEU had no trouble
interpreting the concept of quotation broadly as extending to the communication of a
work by means of a hyperlink in an online news item. Again, the CJEU added that
26
Art. 5(2)(b) InfoSoc Directive.
27
Art. 5(3)(a) InfoSoc Directive. See also art. 5 DSM Directive.
28
Art. 5(3)(c), second case InfoSoc Directive.
29
Art. 5(3)(d) InfoSoc Directive.
30
Cf., supra, § 27.
31
See, supra, Section 6.3.
32
Case C-469/17 Funke Medien NRW (Afghanistan Papers) ECLI:EU:C:2019:623, para 75.
33
Case C-516/17 Spiegel Online ECLI:EU:C:2019:625, para 68.
207
such use must still be “in accordance with fair practice, and to the extent required by
the specific purpose”.
34
Even if the provision in question does not itself include such an open norm
safeguarding the rights and interests of right holders, those rights and interests are
arguably appropriately safeguarded by the both the three step-test and the
requirement that the application of a limitation or exception strikes a fair balance.
35
For instance, in ACI Adam the CJEU ultimately determined the scope of the private
copying exception by applying the three-step test, albeit on questionable grounds.
36
In Deckmyn, the CJEU gave a broad definition of the concept of parody, which covers
basically all humoristic adaptations, noting that the application of parody exception
in the specific circumstances of the case must strike a fair balance.
The foregoing implies there may often not be a good reason to resort to a narrow or
even strict interpretation of specific concepts where both wording and intention are
ambiguous. On the contrary, those concepts must in the case of ambiguity be
construed broadly to ensure an enjoyment of fundamental rights that is as great as
possible.
37
A subsequent proportionality analysis, whether in the form of an
exemption-specific open norm, the three-step test, or a general “fair balance” exercise,
ensures that the ultimate scope of limitations and exceptions does not become too
broad.
38
34
Ibid., para 83.
35
Cf., supra, § 165.
36
See, supra, § 52 and, infra, § 173.
37
The fundamental rights objection against a narrow interpretation of limitations and
exceptions is not new. See already, e.g., Burrell & Coleman 2005, p. 180 et seq., Geiger 2006b,
p. 398, Löffler 1980, p. 204 and Mylly 2005, p. 208. More recently, see also, e.g. Griffiths 2017,
p. 27, van Deursen & Snijders 2018, p. 1096 and the Opinion of the European Copyright Society
concerning Limitations and exceptions as key elements of the legal framework for copyright
in the European Union: Opinion on the Judgment of the CJEU in Case C-201/13 Deckmyn (1
November 2014), retrieved from <https://europeancopyrightsocietydotorg.files.wordpress.
com/2015/12/deckmyn-opinion-final-with-signatures.pdf> accessed on 28 October 2019,
para 14.
38
Another question is whether limitations and exceptions should be applied by analogy to uses
which cannot be brought within the textual meaning of the provision in question, not even if
interpreted broadly. In its well-known Dior/Evora ruling the Dutch Supreme Court accepted
such an analogous application (see Dutch Supreme Court, 20 October 1995,
ECLI:NL:HR:1995:ZC1845, Dior v Evora). There is a lot to be said for such an application
where it promotes the enjoyment of a fundamental right without harming the rights and
interests of the author/right holder. Generally, however, this avenue appears to be closed off
by CJEU’s ruling that Member States may not provide for a limitation or exception to exclusive
rights harmonized by the InfoSoc Directive beyond those enumerated in that directive and that
they must rely on an interpretation of limitations and exceptions which is consistent with their
wording. See, supra, § 107 and 156. It is hoped that the CJEU is willing to reconsider this
position if it is indeed to be understood as precluding the application by analogy of existing
limitations and exceptions.
208
6.5.3 The implementation and application of open norms
6.5.3.1 The two sides of open norms
167. Open norms and balancing. Several provisions in the acquis contain open
norms. For instance, the quotation exception included in the InfoSoc Directive, in
accordance with its sister-provision in the Berne Convention, requires that the use be
in accordance with “fair practice, and to the extent required by the specific purpose”.
39
Such open norms hint at the proportional relationship that must exist between the
various rights and interests at play for the limitation or exception to apply.
40
As was
discussed more in detail in Section 6.5.1, such open norms are a source of discretion
for the Member States. The same is likely true, I noted in the same section, in respect
of the three-step test and the prerequisite that the application of limitations and
exceptions strike a fair balance. These norms permit Member States to further tailor
the scope of limitations and exceptions. Accordingly, many Member States have
introduced conditions not explicitly found in acquis. For instance, although the
provisions of EU law on which they are based contain no such requirements, the
French implementation of the quotation exception requires that quotations be
“short”
41
and the German implementation of the exception for use for the sole purpose
of illustration for teaching
42
limits such use to 15 per cent of the work in question.
43
Alternatively, the open norm can be transposed directly into national law, meaning
the determination of proportionality in the specific circumstances of the case is left to
the judge. Notably, numerous exemptions found in the national copyright laws of the
EU Member States contain open norms even if the parallel provisions in the EU
directives, notably the InfoSoc Directive, do not. The most well-known example is
probably found in the UK, where many of the exemptions to copyright require that
the use in question constitute “fair dealing”. Similarly, in some Member States parodic
uses are only allowed if they comply with the “rules of the genre”,
44
“honest
practices”,
45
or “with what is regarded as reasonably accepted under rules of social
custom”.
46
The application of such open norms typically consists of the weighing of a
39
Art. 5(3)(d) of the InfoSoc Directive and art. 10(1) of the Berne Convention.
40
Cf. Case C-516/17 Spiegel Online ECLI:EU:C:2019:625, para 68 in conjunction with para
83. Cf. also Bently & Aplin 2018, p. 9-11.
41
Art. L122-5(3)(a) of the French Intellectual Property Code.
42
Cf. art. 5(3)(a) InfoSoc Directive.
43
§ 60a(1) of the German Copyright Act. §60a(2) permits full use of illustrations, isolated
articles from the same professional or scientific journal, other small-scale works and out-of-
commerce works.
44
Art. L. 122-5(4) of the French Intellectual Property Code.
45
Art. XI.190(10) of the Belgian Code of Economic Law.
46
Art. 18b of the Dutch Copyright Act.
209
number of factors in order to determine whether the use ought to be permitted or not
and can therefore be characterized as a form of balancing.
As alluded to already previously, (fundamental rights) balancing therefore must take
two forms where the implementation and application of open norms in limitations
and exceptions are concerned. First, as a means to review the implementation of
specific limitations and exceptions into EU law. Second, to determine whether a
particular use should be permitted. The latter form of balancing is more
straightforward: does permitting the use, given the particular circumstances of the
case, lead to a greater degree of fulfilment of (the) fundamental right(s) that would
otherwise be limited, than that it interferes with other rights and interests (notably
the interest of right holders in an appropriate reward)? The former concerns the
question whether the Member State has exceeded its margin of discretion and is more
complicated. It is discussed in the following subsection.
6.5.3.2 Member State implementations
168. Review of Member State implementations. Fundamental rights,
specifically Charter rights, set boundaries to the exercise of the discretion that
Member States might enjoy in respect of the implementation of limitations and
exceptions. The CJEU itself stated as much in Afghanistan Papers and Spiegel
Online.
47
Specifically, the implementation must “allow a fair balance to be struck”.
This implies Member States may not impose conditions that hinder the attainment of
this fair balance. The pertinent question is how much leeway the Charter permits
Member States and what will be the intensity of review employed by the CJEU. In
Section 4.4.1 I discussed that in the course of determining the appropriate remedies
vis-à-vis intermediaries the CJEU has laid down the rule that national measures must
not harm the essence of a right, including the creation of a serious interference with
that right, but that its assessment is often limited to these tests. As I argued in that
Section, the determination of proportionality ought not stop with the finding that the
essence of rights is not harmed. Instead, the CJEU must ask whether the degree of
interference created with a fundamental right, is suitable, necessary and
commensurate with the degree of fulfilment of the purposes pursued (in this context
often also the increase of legal certainty by laying down specific conditions). Specific
conditions that concretize open norms as they have been adopted by Member States
may not be very likely to offend Charter rights generally. For instance, it can very well
be argued that, in general, the explicit limitation of the exception for illustration in
teaching to 15 per cent of works contributes more to legal certainty than it limits
47
See, supra, n 24.
210
freedom of education. Conversely, however, it does not seem unlikely that the
application of such specific conditions in a concrete case may result in a
disproportionate limitation of a fundamental right. For instance, the French condition
that quotations be “short” is traditionally interpreted as meaning that a quotation
must necessarily concern only a part of a work and cannot therefore concern an entire
work.
48
Nevertheless, in some cases it may be necessary to quote an entire work in
order to achieve the informatory purpose pursued. If that purpose is particularly
weighty, for instance due to it concerning political speech or another issue of general
interest, the imposition of such a condition might lead to a disproportionate
outcome.
49
169. Horizontal direct effect? What is the case if Member States have gone
beyond the scope of their discretion and have implemented conditions that are at odds
with EU law, specifically for leading to disproportionate limitations of Charter rights?
First, where a provision of national law contains conditions that are outside the scope
of Member State discretion, that provision must be interpreted, so far as possible, in
a manner that avoids the application of those conditions. However, the CJEU has
consistently pointed out that the obligation to interpret national law in conformity
with a directive is limited by general principles of law and cannot lead to an
interpretation contra legem.
50
In that regard the Court has emphasized that the duty
of consistent interpretation “requires national courts to do whatever lies within their
jurisdiction, taking the whole body of domestic law into consideration and applying
the interpretative methods recognised by domestic law, with a view to ensuring that
the directive in question is fully effective and achieving an outcome consistent with
the objective pursued by it”.
51
What constitutes an interpretation contra legem is
therefore, in principle, a question of domestic law/legal methodology.
52
It seems likely
that if the wording of the national provision is unambiguous it may not be possible to
“interpret away” an impermissible condition, meaning the conflict between the
national provision and the EU norm persists.
48
Cf. Pollaud-Dulian 2014, para 1213.
49
On the importance, in this regard, of facilitating in particular political speech and speech on
matters of general interest, as recognized also in the case law of the ECtHR, see Case C-469/17
Funke Medien NRW (Afghanistan Papers) ECLI:EU:C:2019:623, para 74 and Case C-516/17
Spiegel Online ECLI:EU:C:2019:625, para 58.
50
E.g., in the copyright context, Case C-351/12 OSA ECLI:EU:C:2014:110, paras 44-45.
51
E.g. Case C-282/10 Dominguez ECLI:EU:C:2012:33, para 27 and the case law cited there.
52
See, e.g., Case C-268/06 Impact ECLI:EU:C:2008:223, paras 101-104, holding that a
national court is not obligated to apply national law retrospectively where such an
interpretation would contravene national interpretative methods. See Brenncke 2016, p. 18 et
seq.
211
However, second, if EU law is interpreted as precluding the introduction or
application of certain conditions by reason of being contrary to the fair balance of
rights and interests, it could be argued that national courts may need to disapply those
conditions altogether. The CJEU has held on several occasions since its landmark
decision in Mangold that a national court must disapply a particular provision of
national law that conflicts with a general principle of law, including fundamental
rights, if it is not possible to interpret the national law in conformity with EU law.
53
Thus in Kücükdeveci, concerning the compatibility with EU law of a national rule that
provided that periods of employment by the employee before reaching the age of 25
are not taken into account for the purposes of calculating the notice period for
dismissal of employees, the Court held that the national court must disapply that rule
for being contrary to the general principle of equal treatment in employment and
occupation as given expression in the directive under consideration
54
.
55
The ruling in
Association de médiation sociale
56
suggested that it is only the provision of primary
law on which can be relied directly, not the provision of the directive.
57
This was
affirmed more unequivocally in the Grand Chamber judgement in Bauer.
58
Of
importance is whether the fundamental right relied on is “mandatory and
unconditional”, the latter in the sense of “not needing to be given concrete expression
by the provisions of EU or national law”.
59
If that is the case in can be relied on directly
against other individuals. In Egenberger the CJEU clarified that the obligation to
“guarantee the full effectiveness” of such mandatory and unconditional fundamental
rights by disapplying contrary provisions of national law is not called into question by
the fact that the national court may need to strike a balance between those rights and
other, countervailing fundamental rights. In such a situation the national court “will
have to take into consideration the balance struck between those interests by the EU
legislature in [the directive under consideration], in order to determine the
obligations deriving from the Charter in circumstances such as those at issue in the
main proceedings”.
60
170. A flexible system? The foregoing leads to the following picture. Where the
implementation deviates from the limits set by the directives, as interpreted by the
53
Case C-144/04 Mangold ECLI:EU:C:2005:709.
54
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for
equal treatment in employment and occupation (OJ 2000 L 303, p. 16).
55
Case C-555/07 Kücükdeveci ECLI:EU:C:2010:21, paras 50-51.
56
Case C-176/12 Association de médiation sociale EU:C:2014:2.
57
See, to that effect, the Opinion of AG Bot in Joined Cases C-569/16 and C-570/16 Bauer
ECLI:EU:C:2018:337, para 75.
58
Joined Cases C-569/16 and C-570/16 Bauer ECLI:EU:C:2018:871, para 92.
59
Ibid., para 85.
60
Case C-414/16 Egenberger ECLI:EU:C:2018:257, paras 79-81.
212
CJEU, national courts must, first, attempt to interpret the provision of national law
in conformity with EU law and, second, in certain cases disapply (elements of) the
provision contrary to EU law if a consistent interpretation proves to be impossible.
This appears certainly the case for exemptions originating in the InfoSoc Directive.
The same is arguably true for exemptions originating in other directives, whose
harmonizing objective is not dissimilar from the InfoSoc Directive.
Several of the limitations and exceptions in the acquis have a prima facie relatively
broad scope. They have been fittingly referred to as “prototypes”, rather than precisely
defined exemptions.
61
For instance, article 5(3)(k) of the InfoSoc Directive simply
permits “use for the purpose of caricature, parody or pastiche”. As the CJEU held in
Deckmyn, a parody comes with the prima facie scope of the parody exception if it
evokes an exciting work while being noticeably different and constitutes an expression
of humour or mockery. Any humorous adaptation of an existing work thus, in
principle, constitutes a parody. It is not entirely clear from the Court’s case law
whether Member States may lay down further conditions when implementing such
“prototype” provisions, which do not themselves contain open norms, as I discussed
in Section 6.5.1. Logically, it seems difficult to deny them such discretion as also these
provisions are subject to the open norm of the three-step test. Either way, their
application must strike a fair balance, as arguably follows from the Deckmyn
decision.
62
However, if the CJEU were to consider that Member States have no discretion to alter
the scope of such provisions, it might lead to greater flexibility within the EU system
of limitations and exceptions. This would essentially create a system of exemptions
with a broad initial scope combined with an open-ended balancing exercise capable
of accommodating a great variety of foreseen and unforeseen uses. This was, in
essence, already suggested back in 2004 by Martin Senftleben, and further developed
by him and Bernt Hugenholtz in a 2011 paper. They suggested that “[t]he most flexible
implementation of permissible EU exceptions, however, can be achieved by including
literal copies of the prototypes in the Information Society Directive in national law. In
combination with the open criteria of the three-step test, this implementation strategy
leads to a semi-open norm that comes close to open-ended defences, such as the US
fair use doctrine.”
63
I thus propose that such a system may thus already largely be in
61
Hugenholtz & Senftleben 2011, p. 13. See also Senftleben 2004, p. 281, Senftleben 2012, p.
378.
62
See, supra, § 165.
63
Hugenholtz & Senftleben 2011, p. 17 (footnote omitted). See also Senftleben 2004, p. 281.
213
place, supplemented by a general balancing exercise instead of being subjected to the
three-step test.
6.5.4 The role of the three-step test
171. Outline. It ought to have become clear from the previous (sub-)sections that
the three-step test plays an important and complicated role in determining the scope
of limitations and exceptions in the EU. It mirrors to a large extent the potential
impact of fundamental rights in three main ways. First, specific concepts must be
interpreted both in light of the three-step test and of fundamental rights.
64
Second,
insofar as Member States possess discretion, they must exercise it within the
boundaries set by both the three-step test and by fundamental (Charter) rights.
65
Third, the application of a limitation or exception in a concrete case must both comply
with the three-step test and strike a fair balance.
66
This begs the question about the
relationship between the three-step test and the concept of fair balance. To answer
that question, this sub-section discusses, first, the authoritative interpretations of the
three-step test by a dispute resolution panel of the World Trade Organization and the
CJEU, explaining the resulting friction with the need to strike a fair balance, and,
second, possible ways of reconciling the demands of the three-step test with those of
the “fair balance of rights and interests”.
6.5.4.1 The debilitating interpretation of the three-step test
172. The WTO Panel decision. With its inclusion in article 13 of the TRIPS
Agreement the international three-step test was given teeth, as it now can be the
subject of inter-state dispute resolution in a system permitting for retaliatory
measures in case of non-compliance. In 2000, article 13 was the subject of
interpretation by a WTO panel, which had to scrutinize two exceptions in US
copyright law after a complaint by the European Communities. As it is well-known,
the panel report will not be exhaustively analysed.
67
Instead, I highlight why its
construction of the three-step test is problematic in relation to the safeguarding of the
exercise of fundamental rights.
With regard to the third step the Panel held that “legitimate interests” are both legal
interests and interests “that are justifiable in the light of the objectives that underlie
the protection of exclusive rights”.
68
Moreover, “prejudice to the legitimate interests
of right holders reaches an unreasonable level if an exception or limitation causes or
64
Cf., supra, Chapter 2, n 244 and accompanying text and § 156.
65
Cf., supra, n 24 and accompanying text.
66
Cf., supra, Chapter 2, n 245 and accompanying text and § 165.
67
For an extensive discussion see, e.g., Ginsburg 2001.
68
Dispute DS160, United States – Section 110(5) of the US Copyright Act, para 6-224.
214
has the potential to cause an unreasonable loss of income to the copyright owner”.
69
This definition of “unreasonable prejudice” as “unreasonable loss of income” is not
very illuminating. The “unreasonableness” of the prejudice caused arguably should be
assessed with regard to the same “objectives that underlie the protection of exclusive
rights”. That is, it arguably ought to be a question of proportionality. This is ultimately
lost in the Panel’s definition, which overemphasizes potential loss of income.
70
The main problem with the Panel’s interpretation, however, concerns its approach to
what constitutes normal exploitation. The Panel considered that “conflict with the
normal exploitation” arises if uses that would be covered by an exclusive right if not
for the exemption, “enter into economic competition with the ways that right holders
normally extract economic value from that right to the work (i.e., the copyright) and
thereby deprive them of significant or tangible economical gains”.
71
The assessment
must take account of both “those forms of exploitation that currently generate
significant or tangible revenue [and] those forms of exploitation which, with a certain
degree of likelihood and plausibility, could acquire considerable economic or practical
importance”.
72
As has been pointed out by many authors, extending that concept to
every potential considerable source of revenue may lead to pre-empting the
exemption of almost any use as long as it is conceivable that appropriate licensing
mechanisms are developed.
73
Consequently, the proposed approach risks viewing the
rights of right holders as “prima facie hierarchically superior”
74
and may as a result
severely limit the extent to which legislatures can strike a fair balance.
75
173. The CJEU. The CJEU has not extensively interpreted the three-step test. The
three decisions (ACI Adam, Filmspeler and PRCA) in which the test impacted the
outcome of the case were briefly addressed in § 52. Much like with the Panel’s
approach, the CJEU’s embryonic conception of “conflict with the normal exploitation”
and “unreasonable prejudice to legitimate interests” endangers a full taking account
of countervailing rights and interests. In ACI Adam and Filmspeler the CJEU suggests
that any exemption that may lead to a “reducing the volume of sales or of other lawful
69
Ibid., para 6-229.
70
Cf. Gervais 2005, p. 19.
71
Dispute DS160, United States – Section 110(5) of the US Copyright Act, para 6-183.
72
Ibid., para 6-180.
73
Geiger 2006c, p. 692, Gervais, Geiger & Senftleben 2015, p. 175, Ginsburg 2001, p. 49,
Griffiths 2009, p. 441, Koelman 2006, p. 409, Senftleben 2004, p. 281 and Quintais 2017, p.
202.
74
Mylly 2009, p. 354.
75
Cf. the problems identified in the comment accompanying the well-known Declaration on a
Balanced Interpretation of the “Three-Step Test” in Copyright Law. See Geiger, Griffiths &
Hilty 2008. p. 490.
215
transactions” conflicts with the normal exploitation.
76
This ties the application of
exemptions to situations of market failure. Once that market failure is cured, there
would be a conflict with the normal exploitation. This, as noted in the previous
paragraph, is problematic, first, because it may mean that eventually any exemption
is pre-empted and, second, because it ignores the justifications underlying limitations
and exceptions. Important for present purposes is that such an interpretation of the
three-step test is moreover difficult to reconcile with the notion that any
interpretation must strike a fair balance of rights and interests. The next section
discusses a possible reconciliatory approach.
6.5.4.2 A reconciliatory approach
174. Alternative interpretations. Several solutions to an overbroad reading of
the three-step test have been proposed. The most famous proposal to that effect is
undoubtedly the Declaration on a Balanced Interpretation of the “Three-Step Test” in
Copyright Law.
77
Notably, the Declaration suggested that the three steps should not
be understood as cumulative requirements, but instead as factors that must be
considered in one overall assessment. This would permit “the necessary balancing of
interests between different classes of rightholders or between rightholders and the
larger general public” and mean that “[a]ny contradictory results arising from the
application of the individual steps of the test in a particular case must be
accommodated within this comprehensive, overall assessment.”
78
The viability of
such an interpretation has been questioned on textual grounds.
79
Indeed, it seems
hard to read the three-step test, whether in the Berne Convention, TRIPS, the WIPO
Copyright Treaties or the InfoSoc Directive, as anything other than requiring a
sequential and cumulative analysis of the three steps. Although more permissive
interpretations of the individual steps can be supported by a strong teleological
approach, as discussed next, such an approach arguably is unable to overcome the
strength of the textual argument in this regard.
80
76
Case C-435/12 ACI Adam and Others ECLI:EU:C:2014:254, para 39. See also Case C-527/15
Stichting Brein v Wullems (Filmspeler) ECLI:EU:C:2017:300, para 70.
77
See Geiger, Griffiths & Hilty 2008.
78
Ibid., p. 493.
79
Cf. Lucas 2010, p. 281.
80
See, however, Goold 2017, who argues based on a “Dworkinian” interpretative approach,
aimed at finding “the interpretation which shows the law in its ‘best light,’ or which proactively
makes the law the best it possibly can be, given the constraints of history” (p. 218), that
although the balanced interpretation does not “fit” the text and historical legal sources (p. 220-
221) it nevertheless “best ‘justifies’ the three-step test” (p. 221) because it “construes the
interrelationship between the steps in a way that allows the ‘public interest’ value to be the
most important criterion in assessing a limitation, to which the steps are crucial guides but not
themselves the ultimate arbiters” (p. 226).
216
A more purposive interpretation, proceeding from the view that copyright ultimately
aims to serve the public interest, has also been proposed with regard to the
interpretation of specifically the first and second steps. The Declaration, for instance,
asserted that the “certain special cases” condition merely requires that the scope of
limitations and exceptions be “reasonably foreseeable”.
81
As to the interpretation of
the second step, many authors have suggested that what constitutes a normal
exploitation ought to be interpreted normatively. That is to say, the enquiry should
not merely focus on actual or potential markets of the work, but instead ask whether
the use in question is the kind of use that the right holder ought to have control over
in light of competing rights and interests.
82
This prevents that the second step might
(eventually) pre-empt socially valuable uses. Such interpretations are more easily
reconciled with the wording of the three-step test, while not offending its drafting
history and overall purpose.
83
A slightly different approach to avoid an overbroad interpretation of the second step
has been suggested by Senftleben, who suggests that “normal exploitation” should
only concern “an actual and potential, typical major source of royalty revenue that
carries weight within the overall commercialisation of works of the relevant
category”,
84
and Séverine Dusollier, who argues that it should only cover “the main
avenues of the exploitation of the work, those that provide the author with his main
sources of revenue”
85
. Christophe Geiger, similarly, has asserted that “an extremely
restrictive interpretation” of the second step must be adopted.
86
Finally, Huaiwen He has proposed that the second and third step must be interpreted
as requiring two separate and distinct proportionality analyses. He suggests that the
second step ought to focus on “the suitability of exclusivity in the given circumstances
of a limitation”.
87
That is, is the harm caused to the copyright holder by relinquishing
exclusivity in return for a remuneration right outweighed by competing
considerations, taking account of factors known from US fair use?
88
If it is not, the
exemption is impermissible. If it is, the assessment moves to the third step, which
focuses on the question whether the harm caused to the legitimate interest of the right
81
Geiger, Griffiths & Hilty 2008, p. 495.
82
Cf. Geiger, Gervais & Senftleben 2015, p. 176-177, Geiger, Griffiths & Hilty 2008, p. 492,
Ginsburg 2001, p. 53, Koelman 2006, p. 410, Ricketson 2003, p. 25 and Ricketson & Ginsburg
2005, paras 13.20-13.22. The latter two authors also submit that such an interpretation also
fits with the wider context of the Berne Convention.
83
See, extensively, Goold 2017, p. 219 et seq. Cf. also Geiger, Gervais & Senftleben 2015, p.
176-177.
84
Senftleben 2004, p. 194. Similarly, Quintais 2017, p. 202.
85
Dusollier 2005, p. 220, cited and translated by Geiger 2006c, p. 697.
86
Geiger 2006c, p. 697.
87
He 2009, p. 295.
88
Ibid., p. 294-297.
217
holder to obtain “equitable remuneration” is outweighed by competing considerations
in favour of free use. If it is not, the use should be subject to compensation. If it is, the
use may be free.
89
One might argue that these approaches risk rendering either the second or third step
redundant. If, on the one hand, one views the second step as merely protecting against
“the most gross conflicts with the exploitation of the work”, as Geiger,
90
or as an
expression of “evident disproportionality”, as Senftleben,
91
, it loses independent
meaning. If, on the other hand, the second step is interpreted as demanding a balance
be struck between the right holder’s interest in full exploitation and competing rights
and interests, this may largely render the third step redundant as it requires a similar
balancing exercise.
92
The third step would then only need to deal with non-pecuniary
interests as protected by moral rights. Similarly, He’s approach, comparing three
alternatives (exclusivity, remuneration, free use) which can all be considered
“necessary”, can just as well take place within the context of the third step.
Nevertheless, approaching the three-step test as, essentially, requiring a
proportionality analysis avoids the problems of a more conservative, right holder-first
approach, even if it reduces the independent character of the individual steps.
Importantly, approaching the three-step test in terms of proportionality permits the
recognition that states may have a broad discretion with regard to the limitations and
exceptions that they choose to adopt. For instance, there may be empirical uncertainty
as to the financial impact of replacing exclusivity with remuneration and normative
uncertainty as to how such harm should be qualified in light of the purposes pursued.
Notably, there must also be considerable “cultural discretion” in light of the diverse
underpinnings given to copyright, ranging from that as an instrument to incite
creation to an intimately personal right of authors, which may substantially impact
how individual states decide to strike a balance.
93
Ultimately, a lack of recognition of
this element may have been the largest, overarching problem of the analysis of the
three-step test by the WTO Panel, which did not review national decision-making,
showing deference and restraint where appropriate, but instead imposed its own
exhaustive evaluation.
94
89
Ibid., p. 300 et seq.
90
Geiger 2006c, p. 697.
91
Senftleben 2004, p. 243-244.
92
To that effect Lucas 2010, p. 280.
93
See, supra, § 63.
94
Cf. Grosse Ruse-Kahn 2016, para 12.45, who noted that “[t]he most problematic aspect of
the Report is that the Panel chose to define all relevant terms in Article 13 TRIPS in great detail
… [denying] any flexibility in the implementation of the open and vague terms used in the
three-step test”.
218
175. The three-step test and judicial application. The three-step test, at
least as conceived in international law, is less suitable for application on a case-by-
case basis to a particular set of circumstances (e.g. should this specific parody be
permitted?). This is so for the following reason. It is widely acknowledged, typically
within the context of the third step, that the introduction of certain exemptions can
be rendered tolerable by the provision of equitable remuneration for the use.
95
The
three-step test thus governs the boundaries between situations in which a full
guarantee of exclusivity is required, where instead a statutory license as a substitute
for exclusivity is permitted and those where national law may completely exempt the
use, something which He’s approach elegantly demonstrates. The international three-
step test is principally an instrument intended to enable national exceptions and
limitations in light of multilateral obligations. Because it is above all aimed at guiding
the choice between exclusivity, remuneration and free use, it is generally not an
appropriate tool to guide the judicial application of exemptions, because in those
situations the decision whether the exempted use is subject to compensation will
already have been made by the legislature, meaning the judge is only confronted with
one balancing choice (typically exclusivity vs. compensation or exclusivity vs. free
use).
96
In that regard it bears pointing out that the three-step test as it was first
conceived and adopted during the Stockholm Revision of the Berne Convention was
hardly intended for judicial application. This is further illustrated by the fact that the
first step requires concretization in the law, reason why it has been suggested that this
step can be ignored when the three-step test is applied directly in national law.
97
Jonathan Griffiths has argued that the lack of settled meaning and the fact that the
three-step test does not mandate specific solutions means it is particularly unsuited
for judicial use, as it is liable to lead to arbitrary results.
98
While I do not necessarily
agree with him insofar as he argues that the lack of settled meaning or mandated
solutions is a problem,
99
I do agree with the criticism that seems implied in Griffiths’
95
See Ricketson & Ginsburg 2005, para 13.25, referring to the deliberations of Main
Committee I of the Intellectual Property Conference of Stockholm 1967, which recognized that
exemptions may be adopted in the form of statutory licences (WIPO, Records of the
Intellectual Property Conference of Stockholm 1967 (June 11 to July 14, 1967). Volume II
(Geneva 1971), p. 1145-1146).
96
Cf. however German Federal Supreme Court (First Civil Senate), 25 February 1999, I ZR
116/96 – Kopienversanddienst, in which the German Federal Supreme Court permitted a
library’s practice of copying and mailing scientific articles on demand as covered by the
exemption for private use, but it inferred an obligation to pay a reasonable remuneration from
the three-step test although it did so by analogy with other provisions in the German Copyright
Act.
97
Cf. Gervais 2005, p. 31, Gervais 2008, p. 15 and Hugenholtz & Senftleben 2011, p. 18.
98
See Griffiths 2009.
99
Such claims can similarly be made about proportionality analysis in general. For a rebuttal
see Section 3.3.
219
analysis that the three-step test as traditionally conceived is not the most suitable
instrument to act as both a tool for the review of national legislation from a
supranational perspective, as well as a heuristic device for courts to determine
whether a particular exception should apply in the specific circumstances of a
particular case other than as a matter of review. That is to say, national courts can
ascertain whether giving a particular exemption a certain scope exceeds the discretion
left to states by the three-step test, but it is less suited to determining whether, for
instance, the parody exception ought to apply to a particular parody. Assuming the
national implementation of the parody exception does not provide for equitable
remuneration, that question should be answered by choosing whether a better balance
is struck by permitting the use or by subjecting it to right holder authorization. This
is not something the international three-step test concerns itself with. It sets
boundaries for exemptions at the national level, but does not prescribe which solution
states must choose within those boundaries. It might preclude the application of the
parody exception to certain parodies in the absence of equitable remuneration, but
only where withholding such remuneration would exceed the boundaries set by the
three-step test.
176. The EU three-step test. There is no reason why the approach should be
different in respect of the three-step test in EU law, notably in the the InfoSoc
Directive. As is apparent from recital 44 in the preamble to the InfoSoc Directive, the
three-step test in that directive is primarily intended to ensure compliance with
international obligations. In that regard, when a court evaluates whether a particular
application of an exemption is in accordance with the test, it should take note of the
discretion inherent in the international three-step test. Insofar as the three-step test
is intended as more exacting – although there is no reason to think so – it ought to
nevertheless be construed as a norm that is aimed at finding a proportional
relationship between the objectives pursued by copyright and competing
considerations. Accordingly, proceeding from a right holder-centric point of view
would be at odds with the duty to ensure that the application of a particular exemption
strike a fair balance. In this regard, the three-step test and the requirement that a fair
balance be struck are thus not at odds with each other. In fact, in Afghanistan Papers,
Metall auf Metall and Spiegel Online the CJEU itself noted that the three-step test
“contributes to the fair balance”.
100
They are two sides of the same coin, ensuring that
100
Case C-469/17 Funke Medien NRW (Afghanistan Papers) ECLI:EU:C:2019:623, para
61;Case C-476/17 Pelham and Others (Metall auf Metall) ECLI:EU:C:2019:624, para 62 and
Case C-516/17 Spiegel Online ECLI:EU:C:2019:625, para 46.
220
neither the objectives pursued by copyright, nor fundamental rights, are
disproportionately restricted.
Having said this, the following critical comments concerning the CJEU’s use of the
three-step test so far can be added to those already made.
101
In ACI Adam it simply
dismissed the possibility of applying the private copying exception to copies made
from “unlawful sources” as conflicting with the normal exploitation because it
“inevitably reduces the volume of sales or of other transactions”. The better question
would have been whether the harm caused to the financial position of authors (and
indirectly the purposes pursued by copyright) by replacing an (unenforceable)
exclusive right with a remuneration right in the case of permitting downloads from
unlawful sources was justified by reference to competing considerations, such as the
undesirability of enforcement with a view to the right to privacy and the fulfilment of
the right to access to information. As a matter of review, the position that opting to
grant authors a remuneration right instead of an exclusive right that cannot be
enforced in practice does not exceed the boundaries set by the international three-
step test is not untenable.
102
However, the CJEU made it into a question of
optimization, having also decided Member States ought not to have any discretion in
this regard. From this perspective, the lack of explicit consideration of this question
of balance seems to me inexcusable. In its act of law-making, when deciding whether
or not making private copies from unlawful courses is permitted in those Member
States with a private copying exception, the Court ought not to have been so apodictic
in dismissing the position adopted in the Netherlands, which was based on a careful
consideration of all affected rights and interests, not only those of right holders.
103
Of
course, as I have suggested in Section 6.2, such an optimization argument would not
necessarily have been conclusive; other interpretative arguments such as the
intention of the EU legislature could still have led to a different conclusion.
104
Similar
criticism can be directed at the conclusion in Filmspeler that the temporary copies
made during the passive enjoyment of a copyright-protected work are subject to right
holder authorization if they are knowingly made when accessing works on websites
acting without right holder authorization. That conclusion ought to have only been
reached after an extensive reflection on competing considerations instead of being
based a right holder centric interpretation of the three-step test. One could well argue
that excluding the making of temporary copies from the scope of the mandatory
101
See, principally, this Section 6.5.4 and, supra, § 52.
102
Cf., to this effect, the Opinion of AG Huydecoper of 11 May 2012, ECLI:NL:PHR:2016:1115,
ACI Adam et al. v Thuiskopie & SONT, paras 63-70.
103
Cf. the extensive analysis by Quintais 2015.
104
For the suggestion that the CJEU implicitly argued that the EU legislature could not have
reasonably intended to permit private copies from unlawful sources, see Ringnalda 2015, p 3.
221
exception of article 5(1) InfoSoc Directive constitutes a considerable interference with
the right to freedom of information even in those particular circumstances. In that
light, the Court ought to have required reliable evidence that excluding such use from
the scope of the exception would indeed have contributed to the purposes pursued by
copyright, in particular through an increased demand from lawful offerings.
Finally, the following incongruity must be noted. In Ulmer the CJEU considered that
Member States may grant publicly accessible libraries the right to digitize works in
their collections if that is necessary in order to make those works available in a digital
format on computer terminals on their premises. It held that such a “right” falls within
the scope of article 5(2)(c) of the InfoSoc Directive, which permits the introduction of
a limitation or exception to the exclusive reproduction right “in respect of specific acts
of reproduction made by publicly accessible libraries …, which are not for direct or
indirect economic or commercial advantage”. However, it also implied that this right
did not violate the three-step test because it was coupled with an obligation to pay
adequate remuneration. This suggests that Member States may give a broader scope
to certain limitations or exceptions if they make their enjoyment conditional on the
payment of compensation. This makes sense from the point of view of the three-step
test but appears at first sight at odds with the principle that specific concepts have an
autonomous meaning and scope.
105
It does, however, further fortify the argument that
those concepts must be interpreted broadly, leaving Member States the option to
make full use of that breadth by imposing an obligation to pay compensation. Where
they do not, this lack of compensation must be considered when assessing the
proportionality of the application of the exception in the specific circumstances of the
case.
106
6.6 Synthesis
177. Synthesis. The interpretation and application of exclusive rights and the
limitations and exceptions thereto must “fully adhere to the fundamental rights in the
Charter”. Accordingly, fundamental rights balancing may play a significant role at the
stage of interpretation and application of those norms.
105
It is also difficult to square with the consideration that the three-step test is “not intended
either to affect the substantive content of the [different exceptions and limitations] or, inter
alia, to extend the scope of the different exceptions and limitations”. See, supra, Chapter 2, n
242 and accompanying text.
106
Cf. Senftleben 2019a, p. 14 et seq. and Senftleben 2019b, p. 19 et seq., who suggests that a
broad “pastiche privilege”, based on the provision permitting the introduction a limitation or
exception for use for the purpose of pastiche (art. 5(3)(k) InfoSoc Directive), coupled with an
obligation to pay compensation, may be an appropriate way to facilitate user-generated
content on the Internet.
222
Specific concepts must be interpreted in light of fundamental rights. Broad
interpretations of rights and narrow interpretations of exemptions may interfere with
the enjoyment of a particular fundamental right. The degree of interference must be
weighed against other interpretative arguments, such as those relating to wording and
legislative intention. In principle, ambiguous concepts in exclusive rights can be
interpreted broadly if a limitation or exception exists whose prima facie scope covers
the use in question. In other cases one must opt for an interpretation of concepts
whose wording and underlying intent are unclear that best reconciles the legislative
purpose to grant right holders a reward and the rights and interests of users and the
public interest.
The impact of fundamental rights on limitations and exceptions is complicated by
their partial harmonization. Specific concepts receive a uniform interpretation and
accordingly leave Member States no margin of discretion in terms of implementation.
Fundamental rights are safeguarded to the greatest extent by a broad interpretation
of such concepts, since the interest of right holders in obtaining a reward can be fully
considered when determining the proportionality of applying the limitation or
exception in the specific circumstances of the case.
Open norms, on the other hand, create a margin of discretion for Member States to
further specify the scope of application of limitations and exceptions. The exercise of
this discretion is subject to review: does the Member State implementation create a
disproportionate limitation of a fundamental (specifically: Charter) right, either
generally or in the specific circumstances of the case? Where this is the case, the
condition must arguably be disapplied. At the same time, the application of any
limitation or exception must strike a fair balance in the concrete circumstances of the
case, meaning it must be assessed whether permitting the use, given the particular
circumstances of the case, leads to a greater degree of fulfilment of (the) fundamental
right(s) that would otherwise be limited, than that it interferes with other rights and
interests.
Finally, as regards the three-step test, it should principally be approached as requiring
a proportionality analysis guiding the legislative choice between exclusivity,
remuneration and freedom. It is not intended to dictate this choice, but instead leaves
legislatures a large margin of discretion. Accordingly, the three-step test should not
be used to determine whether a specific use should be permitted or not, other than to
ascertain whether allowing that use would exceed the boundaries set by the three-step
test.
223
7 ENFORCEMENT OF COPYRIGHT AGAINST DIRECT
INFRINGERS
7.1 Introduction
178. Introduction. After rights and the limitations and exceptions thereto have
been interpreted and applied, so far as possible, in accordance with fundamental
rights, the question may nevertheless remain whether any subsequent enforcement
may constitute a disproportionate interference with the defendant’s fundamental
rights. Or, otherwise formulated, can fundamental rights function as so-called
external constraints on copyright, beyond the exemptions specifically included in the
law? This question is old and has been intensively discussed. The answer given
typically depends on whether one considers there to be a potential conflict between
copyright and (other) fundamental rights in the first place, whether one believes such
potential conflicts are sufficiently accommodated by copyright’s internal limits, and
the role one is willing to grant to the courts in policing the balance struck by the
democratic legislature. I will suggest that the grant of remedies should be context-
specific, meaning that in some cases they should be denied to avoid disproportionate
incursions into fundamental rights, but that Court must show a certain degree of
restraint and deference when considering to withhold a particular remedy, in
particular injunctions, because doing so may create a de facto judicial exemption
Section 7.2 gives a (brief) overview of the debate about the relation between copyright
and fundamental rights, concluding that it is now generally acknowledged that, in
principle, the enforcement of copyright may be precluded on fundamental rights
grounds. Section 7.3 sets forth in what circumstances certain remedies may or should
be withheld in order to maintain a fair balance between various fundamental rights.
7.2 From denial of conflict to qualified acceptance
179. Primacy of human rights. Copyright and fundamental rights have a
strained relationship. For instance, granting (exclusive) control over the use of certain
expression appears to put limits on the right to freedom of expression and freedom of
information. Some see in this opposition between copyright and fundamental rights
a fundamental conflict.
1
Those who subscribe to what can be termed the “primacy of
human rights”
2
view in its most radical form, claim that exclusive control over
1
Cf. the well-known distinction drawn between conflict and coexistence in relation to human
rights and intellectual property by Helfer 2003.
2
Plomer 2013, p. 151
224
expression is incompatible with fundamental rights.
3
Unsurprisingly, no serious
academic defends this position. More moderately, this view admits that copyright
protection is not by definition incompatible with the fundamental rights framework,
in particular in light of the obligation under article 15 ICESCR to protect the “moral
and material interests” of authors,
4
but suggests that it should be acknowledged that
“the public/private balance under article 15 [ICESCR] should be struck with the
primary objective of promoting and protecting human rights”.
5
180. Copyright’s immunity. If placing copyright in a fundamental rights
framework has led some to suggest that it should be subordinated to the protection of
fundamental rights, it has, conversely, also provoked others to claim that there is no
real conflict between copyright and fundamental rights because, one, copyright itself
is a fundamental right and, two, both pursue the same purpose.
6
Moreover, to resolve
any tension that might arise in practice, copyright includes many limitations and
exceptions. It is, in fact, the existence of intrinsic limits of copyright that has led many
commentators to conclude that, whatever may be of the theoretical conflict between
copyright and fundamental rights, in practice there exists no conflict because
fundamental right interests have been sufficiently accommodated within the structure
of copyright. First, the fact that copyright in principle only protects expression, not
ideas, allows anyone to convey the same information contained in the copyright
protected work in their own words. Second, specific limitations and exceptions allow
the reproduction of actual expression in certain specific cases where such use may be
needed to safeguard the exercise of fundamental rights. By introducing these limits,
the legislature has struck an (appropriate) balance which does not need to be second-
guessed, the argument goes.
7
3
A view mostly defended by NGOs and advocacy groups. See, e.g., Engström & Falkvinge 2012,
a pamphlet written by two members of the Swedish Pirate Party.
4
See, supra, section 5.2.2.
5
Comm. on Econ., Soc. & Cultural Rights, The impact of the Agreement on Trade-Related
Aspects of Intellectual Property Rights on human rights Report of the High Commissioner
(E/CN.4/Sub.2/2001/13, 27 June 2001), para 13. Cf. also Plomer 2013, p. 151-152.
6
Cf. Torremans 2004b, p. 2-3 (“Both intellectual property law and human rights law try to get
the private-public rights balance right and as such there is no conflict.”) and Derclaye 2008,
p. 136 (“[T]here is no conflict between human rights and IPR. To that end, they both set rules
so that human beings respect other human beings.”) and p. 137 (“[W]hatever the argument
used to justify IPR, the specific IPR protection in question will by definition (intrinsically or
internally) respect human rights.”).
7
Cf. Derclaye 2008, p. 142, Dessemontet 1999, p. 118-119, Ficsor 2010, para 27 et seq., Lucas
2006, para 22 et seq. and Lucas & Ginsburg 2016, p. 72. See also Guibault 1998, p. 3,
summarizing the view of most reporters to the 1998 ALAI Study Days that “the copyright
system offers sufficient protection for the fundamental freedom of expression and right to
information of the public, so that there is no need to look at this question from outside of
copyright law”.
225
Some (highest) national courts have in the past adopted this position, which often
entailed the exercise of the greatest possible level of restraint by accepting basically
any trade-off between the advancement of the objectives pursued by copyright and
limitation of fundamental rights as proportionate. For instance, in Utrillo the French
Supreme Court (in)famously rejected as “ineffective” the claim that the Court of
Appeals had violated article 10 ECHR and endorsed its ruling that “the author’s
statutory monopoly in his work is incorporeal property, which is guaranteed as the
right of any natural or legal person to the peaceful enjoyment of that person’s
possessions and which the law subjects to proportionate limits both through the
exceptions laid down in article L. 122-5 of the Intellectual Property Code and through
the provision on manifest abuse in article L. 122-9 of the same Code”.
8
Similarly, in
Index v Biblio the Belgian Supreme Court laconically concluded that “[the Copyright
Act 1994] as interpreted by the Court of Appeals does not constitute a restriction of
freedom of expression as guaranteed by [the ECHR and the ICCPR]”.
9
The German
Federal Supreme Court has also shown hesitation. For instance, in Lili Marleen the
Court suggested that the German Copyright Act had settled the conflict between the
interest of the press to report on protected works and the interest of authors to control
the dissemination of those works. Nevertheless, it appeared to concede that in
exceptional cases “unusually pressing information needs” might warrant limitations
beyond those enumerated in the law.
10
The German Federal Constitutional Court,
however, which prescribed liberal interpretations of limitations laid down in the
German Copyright act in Germania 3 and in Metall auf Metall,
11
suggested in
Kunstaustellung im Online-Archiv that there can be no separate consideration of
fundamental rights outside the system of the Copyright Act where a particular
limitation or exception has been introduced in the law that is intended to strike a
balance between the rights of authors and a particular (other) fundamental right,
although that provision itself must be interpreted and applied in conformity with the
German Basic Law.
12
,
13
8
French Supreme Court (First Civil Chamber), 13 November 2003, Utrillo, published in RIDA
200 (2004), p. 290 (Margaret Platt-Hommel tr, in Lucas & Ginsburg 2016, p. 54).
9
Belgian Supreme Court (First Chamber), 25 September 2003, Index v Biblo, published in
Auteurs & Media 2004, p. 29, at p. 35.
10
German Federal Supreme Court (First Civil Senate), 7 March 1985, I ZR 70/82 – Lili
Marleen, paras 7-9.
11
See, supra, § 150.
12
German Federal Constitutional Court (First Senate), 17 November 2011, 1 BvR 1145/11 –
Kunstaustellung im Online-Archiv, paras 13-15.
13
For a discussion of these (and other) decisions, see Graber 2005, Hugenholtz 2003 and
Strowel & Tulkens 2005.
226
181. A paradigm shift. Many authors have questioned whether copyright should
indeed be immunized from fundamental rights scrutiny.
14
Sometimes a particular use
may require copying a work beyond what is permitted by limitations and exceptions.
In those cases, courts should not categorically refuse to entertain the question
whether subjecting those uses to exclusive control is indeed “necessary in a
democratic society” or otherwise in accordance with the principle of proportionality.
On the contrary, it has been suggested that under certain circumstances courts ought
to refuse copyright enforcement based on fundamental rights grounds.
Following the decisions by the ECtHR in Ashby Donald and Neij and Sunde
Kolmisoppi, discussed in § 84, it can arguably no longer be denied that copyright
(enforcement) in principle interferes with the right to freedom of expression and
freedom of information. However, whether this also means that national courts must,
to avoid being held in violation of the ECHR, always “check and evaluate whether this
resulting restriction to freedom of expression is ‘necessary in a democratic society’ as
to strike a fair balance between the different rights at issue” is uncertain.
15
It appears
from the description of the national proceedings in Ashby Donald and The Pirate Bay
that the national courts hardly conducted an explicit balancing exercise. On other
occasions such an omission has been by itself a sufficient reason for the ECtHR to find
a violation of article 10, but not so in Ashby Donald and The Pirate Bay, likely due to
the particularly wide margin of appreciation. Consequently, one may wonder whether
any judgement that merely assesses the lawfulness of certain uses from within the
existing copyright framework, without asking whether enforcement really is
“necessary in a democratic society” if that enforcement restricts freedom of
expression, stays within the boundaries of this broad margin of appreciation and can
therefore count on the blessing from Strasbourg.
16
This may be unlikely certainly in
cases which, unlike the commercial expressions that were under consideration in
Ashby Donald and in The Pirate Bay, concern political expression which contributes
to a public debate on a matter of general interest and in which the margin of
appreciation will accordingly be narrower.
17
Either way, since Ashby Donald and The Pirate Bay were decided the highest civil
courts in both France and the Netherlands have quashed decisions which did not
14
Cf. Angelopoulos 2008, p. 351 et seq., Barendt 2005, p. 29 et seq., Birnhack 2003, p. 32 et
seq., De Cock Buning 2005, p. 161 et seq., Geiger 2004a, para 441 et seq., Geiger 2004b, p.
278, Geiger 2006b, p. 389, Graber 2005, p. 29, Nimmer 1970, p. 1196 et seq., Quaedvlieg 2006,
p. 199-200, Strowel & Tulkens 2005, p. 311, Van den Berg & Haak 2011, pp. 6-7, Voorhoof
2006, p. 56-57, Voorhoof 2013, para 11, among many others
15
Geiger 2018, p. 11.
16
Cf. Zollinger 2013, para 23.
17
See also, supra, § 85.
227
sufficiently explain why their judgement struck a fair balance between the protection
of copyright and the right to freedom of expression. In the case of Klasen the French
courts were concerned with the lawfulness of the incorporation of three fashion
photographs into a painting, as a means of criticism of the consumer society. The
painter invoked the right to freedom of (artistic) expression but this argument was
rebuffed by the Court of Appeal of Paris, which held that the right to freedom of
expression may be limited for the protection of other rights and that the search for a
fair balance cannot permit the exercise of the former right to the detriment of the
rights of the author of the original work.
18
The Court of Cassation, however, set aside
the verdict, holding that the court of appeal ought to have explained “the specific
manner in which the search for a fair balance between the rights in the present case
required the judgment that it rendered”.
19
In GS Media, the case which would
ultimately lead to the well-known CJEU decision about hyperlinking to unauthorized
content, the defendant used, without authorization, a cut-out from a photograph on
one of its webpages. The Court of Appeal of Amsterdam held that the defendant could
not invoke the quotation exception, due to the fact that the photograph had not been
lawfully published and that no source was mentioned. It also rejected the plea that it
must conduct a comprehensive balancing exercise between the right to freedom of
expression and copyright, noting that copyright is a legitimate restriction of the right
to freedom of expression and that freedom of expression can only in exceptional cases
justify the violation of the copyright of another person.
20
The Dutch Supreme Court
reversed, holding that the court of appeal, by considering that only in “exceptional
cases” the right to freedom of expression could preclude the enforcement of copyright,
had applied the wrong standard. The Supreme Court noted that whether the right to
freedom of expression should prevail depends on the circumstances of the case,
including the nature (commercial or concerning a debate of general interest) of the
expression.
21
182. Acceptance of external constraints. The prevailing opinion now
certainly appears to be that the conflict between copyright and other fundamental
rights should not be exclusively addressed within the confines of copyright itself.
Besides a fundamental rights approach there are of course other avenues, notably
competition law and civil law abuse/misuse of right doctrines, which may help redress
18
Paris Court of Appeal (First Chamber), 18 September 2013, No. 12/02480.
19
French Supreme Court (First Civil Chamber), 15 May 2015, Klasen, English translation in
IIC 2016, p. 856.
20
Amsterdam Court of Appeal, 19 November 2013, ECLI:NL:GHAMS:2013:4019, GS Media v
Sanoma, para 2.5.5.
21
Dutch Supreme Court, 3 April 2015, ECLI:NL:HR:2015:841, GS Media v Sanoma, para
5.2.6.
228
any imbalances. In particular the latter has been suggested as a viable alternative to
fundamental rights balancing.
22
Herman Cohen Jehoram has argued that the conflict
is in fact better addressed by applying such civil law doctrines, asserting that “the
more precise abuse road” is to be preferred over a direct application of the right to
freedom of expression, which “is lacking in precise criteria”.
23
Ultimately, the answer
to the question of how to best resolve resolution of conflict between copyright and
fundamental rights should not be a matter of “either…or”. Much like copyright can
create disproportionate interferences despite its internal limits, there may still be
such interferences after the application of the abuse of right doctrine. States that have
such a doctrine can certainly apply it to resolve conflicts between copyright and
fundamental rights, but this is unlikely to preclude an assessment within the
fundamental rights framework altogether. More fundamentally, it is questionable
whether abuse of right doctrines are really more precise and therefore better suited to
address overbearing effects of copyright on fundamental rights. As has been argued
in section 3.3, balancing is not necessarily irrational or lacking normative criteria
which guide the balancing process. On the contrary, it can provide an appropriate
framework for courts to take account of all rights and interests involved. Moreover, as
Christophe Geiger has pointed out, “[t]he application of Art. 10 [ECHR], despite its
being approximate, has the advantage that it is accompanied by established methods
and criteria that involve an appreciation of the use at issue in the specific case”.
24
The
wealth of experience with balancing rights such as the right to freedom of expression
with other rights and interests can only be a benefit when adjudicating on conflicts
between copyright and fundamental rights. Finally, fundamental rights balancing
allows for the application of a uniform framework throughout the EU and is not
dependent on national abuse of right doctrines.
25
7.3 Enforcement as a (dis)proportionate interference with
fundamental rights
183. Outline. The question nevertheless remains to what extent EU Charter rights
may prevent a right holder from relying on their copyright. This presumes, first of all,
that the rights in the Charter apply. Their scope of application, and the relationship
to national standards of fundamental rights protection, is discussed in Section 7.3.1.
Charter rights may limit the exercise of copyright either directly or indirectly. Their
possible direct effect is briefly addressed in Section 7.3.2, before Section 7.3.3
22
E.g. Cohen Jehoram 2004, Lucas 2006, paras 29-31 and Sganga & Scalzini 2017.
23
Cohen Jehoram 2004, p. 279.
24
Geiger 2007, p. 718.
25
See, however, Sganga and Scalzini 2017, who suggest there is a nascent “European”
copyright misuse doctrine, implicit in the case law of the CJEU.
229
discusses the indirect effect of Charter rights in relation to the interpretation and
application of procedural norms concerning enforcement.
7.3.1 The scope of application of the EU law
184. Applicability of the Charter. To what extent is the relationship between
user and right holder governed, whether directly or indirectly, by the fundamental
rights in the EU Charter and/or national standards of fundamental rights protection?
Insofar exclusive rights and the limitations and exceptions thereto laid down in
national law derive from EU law, the applicable fundamental rights are found first
and foremost in the EU Charter. After all, article 51(1) of the EU Charter designates
the Member States as addressees of the provisions of the Charter “when they are
implementing EU law”. However, even if the law of a Member State grants right
holders a right that does not originate in EU law, the enforcement of such a right
arguably falls within the scope of EU law as a result of the general applicability of the
Enforcement Directive.
26
Therefore, even if one considers that a right, such as the
adaptation right,
27
has not been the subject of general harmonization, the question
whether the exercise of that right can be limited by fundamental rights may still fall
within the scope of EU law.
The question as to the possible concurrent application of national standards of
protection and the ECHR is more complicated. Although article 53 of the EU Charter
appears to suggest that Member States may guarantee a higher level of protection of
fundamental rights based on either the European Convention of Human Rights or
their respective constitutions, the CJEU circumscribed that freedom in Melloni. The
Court held that a national court may not apply “national standards of protection of
fundamental rights” if it compromises “the primacy, unity and effectiveness of EU
law”.
28
This issue was also brought up in Afghanistan Papers, Spiegel Online and
Metall auf Metall. The German Federal Supreme Court asked about the extent of the
Member States’ margin of discretion in the transposition of the InfoSoc Directive, in
light of the case law of the German Federal Constitutional Court that national law
based on measures of full harmonization can only be measured against the
fundamental rights in the Charter. The CJEU limited its reply to the specific
26
See, in particular, art. 2(1) thereof, which provides that “…the measures, procedures and
remedies provided for by this Directive shall apply … to any infringement of intellectual
property rights as provided for by Community law and/or by the national law of the Member
State concerned” (emphasis mine).
27
To that effect, e.g., Hugenholtz & Senftleben 2011, p. 26 (with further references). Arguing
the most adaptations will constitute a reproduction (in part) within the meaning of the InfoSoc
Directive are Rosati 2014, p. 21 and Jongsma 2017, p. 666-670.
28
Case C-399/11 Melloni ECLI:EU:C:2013:107, para 60.
230
provisions under consideration, holding that the exclusive rights provided for in
articles 2(a), 2(c) and 3(1) constitute measures of full harmonization, but that the
exemptions provided for in articles 5(3)(c), second case, and 5(3)(d) do not.
29
It added
that national standards of fundamental rights can be applied in situations in which
Member State action is not entirely determined by EU law as long as the level of
protection of the Charter and the “primacy, unity and effectiveness” of EU law are not
compromised. Arguably, national standards of protection only apply to the extent that
Member States have discretion. Outside of that discretion, their application would
undermine the “primacy, unity and effectiveness” of EU law. This also follows from
Court’s consideration that when implementing any of permitted limitations and
exceptions in the InfoSoc Directive, Member States must at least respect the
conditions laid down therein and may not extend their scope.
30
Accordingly, it seems
doubtful that Member States may limit the exercise of exclusive rights provided for in
the acquis Communautaire on the basis of national standards of fundamental rights
protection, other than within the limits of the discretion afforded to them in terms of
implementation of limitations and exceptions.
7.3.2 Fundamental rights as an exception in themselves: horizontal
direct effect?
185. The fundamental rights exception. There may be little doubt that (the
exercise of) copyright has the potential to limit the enjoyment of fundamental rights,
such as the right to freedom of expression and of information. Once this is recognized,
it must also be accepted that there exists a risk that such limitations reach
disproportionate levels. In vertical relationships, where the right holder/claimant is a
state entity, such as in Afghanistan Papers, users can directly rely on fundamental
rights if the state action creates such a disproportionate interference. Accordingly, AG
Szpunar held in his Opinion in Afghanistan Papers that in the specific circumstances
of the case the right to freedom of expression precluded the German State from
invoking its copyright. The question is whether a user can similarly directly invoke a
fundamental right if the right holder is not a state entity but a private party. In his
Opinion in Spiegel Online, AG Szpunar accepted only a marginal role for fundamental
rights as direct constraints on copyright in such circumstances. He suggested that the
balance as struck by the legislature should be respected, except “in the event of an
infringement of the essential content of a fundamental right”.
31
This implies that,
29
See also, supra, Section 6.5.1.
30
Case C-469/17 Funke Medien NRW (Afghanistan Papers) ECLI:EU:C:2019:623, paras 27-
54; Case C-476/17 Pelham and Others (Metall auf Metall) ECLI:EU:C:2019:624, paras 75-86
and Case C-516/17 Spiegel Online ECLI:EU:C:2019:625, paras 16-39.
31
Opinion of AG Szpunar in Case C-516/17 Spiegel Online ECLI:EU:C:2019:16, para 62.
231
except in the most extreme of limitations of fundamental rights, he sees no role for
fundamental rights.
32
The CJEU did not explicitly take a stand on the possible horizontal direct effect of
Charter rights in Afghanistan Papers and Spiegel Online.
33
Strictly speaking, the
Court merely held that, given the exhaustive nature of the catalogue of limitations and
exceptions in the InfoSoc Directive, Member States are not free to introduce a
limitation or exception to the exclusive rights in that directive that are not part of that
catalogue, not even in order to safeguard a Charter right. In itself, this ruling does not
preclude the possibility that a user might directly rely on a fundamental right to ward
off an infringement claim. Nevertheless, one could argue that accepting such direct
effect in essence leads to the (judicial) creation of an exemption beyond those
provided for in the acquis. One could therefore argue that because the limitation
placed on Member States extends to their judicial authorities, it also precludes the
judicial creation of such exemptions by giving horizontal direct effect to fundamental
rights.
Another question is whether a user may rely directly on one of the optional limitations
and exceptions in the acquis communautaire even if that not has been implemented
in the Member State in question. Some have argued this follows from Deckmyn.
34
It
is questionable whether this type of horizonal direct effect of directives is appropriate,
precisely due to the intentionally optional nature of these provisions, which are
moreover directed at Member States, not at individuals. However, this does not
negate the possibility that prohibiting a particular use in specific circumstances
creates a disproportionate interference with a Charter right.
The potential horizontal direct effect of fundamental rights may be largely a moot
point. Typically, the degree of interference with the fundamental right in question will
depend not just on the rights right holders possess, but also on how they are enforced.
In many cases, the conflict between copyright and fundamental rights is therefore
arguably best resolved when it is determined which remedies ought to be available to
the right holder.
35
In this regard, the acquis communautaire not only offers sufficient
32
Both cases are discussed, supra, in § 107.
33
See ibid.
34
Cf., supra, § 116. See also Griffiths 2019, p. 47.
35
Tailoring of remedies may not resolve every potential conflict between copyright and
fundamental rights. Notably, contractual limitations and the use of technological protection
measures may also limit the enjoyment of fundamental rights. In such cases, it may not always
be possible to resolve the tension through an interpretation of the existing legal framework in
conformity with fundamental rights. In those cases, courts may need to resort other techniques
to resolve disproportionate interferences, such as accepting horizontal direct effect or the
existence of a positive obligation of the state (or EU) to take regulatory action. Since the
232
flexibility to limit disproportionate interferences with fundamental rights, but may
even require the refusal of particular remedies to avoid those interferences. This is
discussed in the next section.
7.3.3 Indirect (horizontal) effect and available remedies
186. Remedies. Insofar as users of copyright protected subject-matter are
concerned, it is submitted that in most instances the conflict between copyright and
their fundamental rights can be resolved indirectly. First, when interpreting and
applying substantive copyright norms and, second, when deciding on the available
remedies. The focus in this section is on the latter: when should courts refuse to grant
a particular remedy in the interest of avoiding disproportionate interferences with
fundamental rights? I will argue that the enforcement framework put in place by the
InfoSoc Directive and, predominantly, the Enforcement Directive, can (and should)
be interpreted in such a way as to avoid outcomes that create a disproportionate
interference with fundamental rights.
36
I will principally consider this issue in regard
to one of the main remedies in the case of copyright infringement: (final) injunctions.
The impact on the other main remedy, that of damages, will be addressed only in
passing.
187. EU directives on enforcement. Article 3(1) of the Enforcement Directive
specifies that “the measures, procedures and remedies necessary to ensure the
enforcement of the intellectual property rights … shall be fair and equitable”. Article
3(2) adds that “[t]hose measures, procedures and remedies shall also be effective,
proportionate and dissuasive and shall be applied in such a manner as to avoid the
creation of barriers to legitimate trade and to provide for safeguards against their
abuse”. A similar statement of principle is found in article 8(1) of the InfoSoc
Directive: “The sanctions thus provided for shall be effective, proportionate and
dissuasive.” The preamble to the Enforcement Directive further clarifies that “[t]he
measures, procedures and remedies provided for in this Directive should be
determined in each case in such a manner as to take due account of the specific
characteristics of that case” (recital 17) and that “[d]epending on the particular case,
and if justified by the circumstances, the measures, procedures and remedies to be
provided for should include prohibitory measures aimed at preventing further
infringements of intellectual property rights” (recital 24).
potential interference with fundamental rights created by contracts and TPMs is excluded
from the scope of this study, this is not discussed further.
36
See also, in general with regard to the proportionality of remedies, Fischman Afori 2014.
233
The foregoing suggests that the grant of remedies should be tailored to the specific
circumstances of the case at hand. Nevertheless, the reality in several Member States
is that final injunctions are automatically granted in case of infringement. It is
questionable whether such a general rule also follows from the Enforcement (and
InfoSoc) Directive(s). Article 11 of the Enforcement Directive only requires that
“Member States shall ensure that, where a judicial decision is taken finding an
infringement of an intellectual property right, the judicial authorities may issue
against the infringer an injunction aimed at prohibiting the continuation of the
infringement” (emphasis added).
37
Although at least one commentator has expressed
the hope that the CJEU will read in this provision a general rule that the grant of an
injunction is automatic if an infringement has been found,
38
the argument for this is
not strong. It is primarily based on an interpretation of article 11 in conjunction with
article 12, which permits Member States to provide that, if certain conditions are met,
courts may grant damages instead of an injunction.
39
A contrario, one could argue
that if those conditions are not met, Member States may not provide that damages in
lieu of an injunction are granted. This argument is not convincing. It is contrary to
text of article 11 and the general spirit of the directive as evinced by article 3 and the
recitals cited above. Accordingly, the Enforcement Directive, nor the InfoSoc
Directive for that matter, does not require the automatic grant of a final injunction,
even if the conditions of article 12 are not met.
40
188. Degree of harmonization. The question is whether Member States, owing
to the fact that the Enforcement Directive only lays down a minimum standard,
41
are
nevertheless free to provide that the grant of a final injunction is mandatory. Husovec
and Van Dongen convincingly argue, in a not yet published contribution, that this is
not the case. Article 3(2) requires not only that remedies be “effective” and
“dissuasive”, but also that they be “proportionate”. Recitals 17 and 24 clarify that the
proportionality of a particular remedy must be evaluated in light of the specific
37
Similarly ambiguous is article 8(2) InfoSoc Directive: “Each Member State shall take the
measures necessary to ensure that rightholders whose interests are affected by an infringing
activity carried out on its territory can bring an action for damages and/or apply for an
injunction”.
38
Cf. Von Muhlendahl 2007, p. 380.
39
Art. 12 Enforcement Directive: “Member States may provide that, in appropriate cases and
at the request of the person liable to be subject to the measures provided for in this section,
the competent judicial authorities may order pecuniary compensation to be paid to the injured
party instead of applying the measures provided for in this section if that person acted
unintentionally and without negligence, if execution of the measures in question would cause
him/her disproportionate harm and if pecuniary compensation to the injured party appears
reasonably satisfactory”.
40
Cf. García Pérez 2016, p. 94, Husovec & Van Dongen (draft on file with the author), p. 7-8,
Norrgård 2010, p. 11 and Ohly 2009, p. 8.
41
Cf. art. 2(1) Enforcement Directive.
234
circumstances of the case at hand. Accordingly, they conclude that the Enforcement
Directive not only introduced a floor for available remedies, but also a ceiling.
42
National courts thus ought to have the freedom to reject the request for a final
injunction if the circumstances require it. How large is the courts’ freedom in this
regard?
The freedom of courts to grant or withhold an injunction will be mainly circumscribed
by the principles of effectiveness, dissuasiveness and proportionality. In turn, whether
a remedy can be considered for instance effective or proportionate will be influenced
by other (higher) legal norms such as the provisions on free movement, those on
competition law and fundamental rights. In how far Member States, including
national courts, are free to determine whether a measure is effective, dissuasive and
proportionate is a matter of interpretation. As far as the protection of fundamental
rights is concerned, the outer limits of that discretion will be determined by the
Charter. Within those limits, Member States are free to give further content to those
concepts, for instance by applying national standards of fundamental rights
protection.
189. Need for judicial restraint. Despite the discretion inherent in article 11 of
the Enforcement Directive, courts must show hesitation to refuse the grant of an
injunction against direct infringers. In that regard, the proportionality of remedies
against direct infringers should be approached differently than the proportionality of
remedies against intermediaries, discussed in Section 4.3.2.3(iii). The enforcement
against intermediaries is not similarly encumbered by provisions of substantive
copyright law, which govern the prima facie relationship between right holder and
user/infringer. This leaves courts more freedom to determine the most proportionate
(optimal) remedies given the rights and interests involved. However, when a court
refuses to grant an injunction against a direct infringer and instead grants damages it
creates a de facto compulsory license.
43
If it also withholds damages, it creates a de
facto full exemption. Courts should therefore exercise restraint and deference vis-à-
vis the choices made by the legislature in granting right holders exclusivity and not
haphazardly undermine these choices by withholding remedies. Along these lines,
42
Husovec & Van Dongen (draft on file with the author), p. 12-14.
43
Cf. Von Muhlendahl 2007, p. 380.
235
several authors have suggested precedence to fundamental rights should only be given
“[i]n exceptional cases”,
44
in “special cases”,
45
or in “in very specific circumstances”.
46
One can compare in this regard the case law of the CJEU on the abuse of a dominant
position by holders of intellectual property rights. Already in its Volvo ruling the Court
held that “an obligation imposed upon the proprietor of a protected design to grant to
third parties, even in return for a reasonable royalty, a licence for the supply of
products incorporating the design would lead to the proprietor thereof being deprived
of the substance of his exclusive right”.
47
Nevertheless, the Court recognized that the
specific exercise by an undertaking holding a dominant position may amount to an
abuse of that position, but only in “exceptional circumstances”, as it clarified in
Magill.
48
According to the CJEU, the refusal to enter into a licensing agreement, and
by extension the request to enjoin a third party from using subject-matter protected
by intellectual property, constitutes such exceptional circumstances if that refusal (i)
prevents the emergence of a new product for which there is potential consumer
demand, (ii) that refusal is not justified by objective considerations and (iii) such as
to exclude any competition on a secondary market.
49
That the holder of an exclusive
right is in principle entitled to obtain an injunction against a direct infringer was also
emphasized in Huawei. In question was under which circumstances the holder of a
standard essential patent (SEP), who has undertaken to licence that patent on fair,
reasonable and non-discriminatory (FRAND) terms, abuses its dominant position by
seeking an injunction against an infringing competitor. The CJEU emphasized that
“in principle, the proprietor may not be deprived of the right to have recourse to legal
proceedings to ensure effective enforcement of his exclusive rights”.
50
Nevertheless,
the Court held that the holder of the SEP can be required to comply with specific
requirements before it can obtain an injunction, specifically owing to the fact that the
right holder has undertaken to licence the SEP on FRAND terms, which undertaking
“creates legitimate expectations on the part of third parties that the proprietor of the
44
Geiger 2006b, p. 389 and Geiger 2007, p. 713, although Geiger does maintain, as noted
supra at n 15 and accompanying text, that in every case the national court must check whether
the restriction on freedom of expression is “necessary in a democratic society” and that they
in that regard can rely on the case law by the ECtHR, it is not clear what level of deference and
restraint national courts should display vis-à-vis the national (and European) legislature in his
view (and if and how this differs from the level of deference and restraint displayed by the
ECtHR).
45
Quaedvlieg 2006, p. 199.
46
De Cock Buning 2005, p. 163.
47
Case 238/87 Volvo v Veng ECLI:EU:C:1988:477, para 8.
48
Joined Cases C-241/91P and C-242/91P RTE and ITP v Commission (Magill)
ECLI:EU:C:1995:98, para 50.
49
Ibid., para 54-56 and Case C-418/01 IMS Health ECLI:EU:C:2004:257, para 38.
50
Case C-170/13 Huawei Technologies ECLI:EU:C:2015:477, para 58.
236
SEP will in fact grant licences on such terms”.
51
In particular, the right holder must
inform the alleged infringer of the infringing use and present it with an offer for a
licensing agreement on FRAND terms if the alleged infringer has expressed a
willingness to enter into a licensing agreement.
52
These decisions reveal the exercise
of a considerable degree of restraint in regard to the determination whether a right
holder can be denied an injunction and forced to licence its intellectual property on
competition grounds. This is not least because the right holder must have dominant
position, and, even then, only in exceptional circumstances may an injunction be
withheld.
The question whether an injunction must be withheld because it would violate a
fundamental right should be approached with similar caution. It should principally
be approached in a way similar to a question of review: it must be assessed whether
granting a certain remedy creates a disproportionate interference with a fundamental
rights which cannot be tolerated, and not whether the rights and interests involved
are optimally reconciled by exclusivity, a remuneration right, or by free use.
53
A
deferential attitude towards the legislative choice in this regard, made in light of both
empirical and normative uncertainty as to the appropriate scope of protection, is
therefore in order. I therefore am reluctant to agree with the approach taken by the
Austrian Supreme Court starting with its well-known 2001 Medienprofessor ruling,
in which it first accepted that the enforcement of copyright may be impeded by the
right to freedom of expression directly.
54
In a later ruling from 2010, the Austrian
Supreme Court specified the following criteria for determining whether the right to
freedom of expression stands in the way of copyright enforcement: (i) the use under
consideration falls within the scope of the right to freedom of expression and is neither
false nor defamatory, (ii) the use does not undermine the economic interests of the
author, (iii) it does not conflict with the normal exploitation of the work, (iv) it does
not cause undue prejudice to the legitimate interests of the author and (v) the right to
freedom of expression cannot be sufficiently exercised without the (prima facie)
infringing use.
55
Depending in particular on how “undue prejudice” is understood,
this may radically expand the category of permitted uses beyond those explicitly
exempted by copyright law itself, by in effect creating an open-ended exception
51
Ibid., para 53.
52
Ibid., para 59 et seq.
53
Cf. Graber 2005, p. 41: “Firstly, when a court order is self executing, it distorts the balance
of power between the institutions of the State. Because such a derogation of statutory law itself
poses constitutional problems, it should be chosen under exceptional circumstances only.”
54
Austrian Supreme Court, 12 June 2001, case 4 Ob 127/01, published in GRUR Int. 2002, p.
341.
55
Austrian Supreme Court, 13 July 2010, case 4 Ob 66/10z, para 5.7.
237
similar to US fair use, directly based on the right to freedom of expression.
56
Such a
standard strikes me as inappropriate. The question is where the Charter draws the
boundary.
190. Developing an appropriate standard. In assessing whether the grant of
a remedy, such as an injunction, creates a disproportionate interference with a
Charter right, courts can and should take note of the case law of the ECtHR. This
follows in the first place from article 52(3) of the EU Charter, which specifies that the
meaning and scope of Charter rights shall be the same as of corresponding rights in
the ECHR, but that EU law may provide more extensive protection. In particular
concerning the determination of the intensity of the interference with a particular
right the case law of the ECtHR provides invaluable guidelines. In regard to freedom
of expression, for instance, courts should take note of the factors which typically guide
the assessment of the ECtHR, such as the character and purpose of the expression
(e.g. political or otherwise in the general interest, artistic, (purely) commercial).
57
The
possible guidance which the case law of the ECtHR might offer was recognized by the
CJEU in Afghanistan Papers and Spiegel online, when it considered that “for the
purpose of striking a balance between copyright and the right to freedom of
expression, [the ECtHR] has, in particular, referred to the need to take into account
the fact that the nature of the ‘speech’ or information at issue is of particular
importance, inter alia in political discourse and discourse concerning matters of the
public interest”.
58
Nevertheless, national courts, and in guiding them the CJEU, should in principle
develop an independent approach, to some degree separate from that used by the
ECtHR to determine the lawfulness of fundamental rights limitations. This is because,
as was noted in Chapter 4,
59
the ECtHR grants states a margin of appreciation due to
the subsidiary nature of the Convention, whereas national courts and the CJEU
exercise restraint and deference towards their respective legislatures in order to
56
Cf., also critical, Peukert 2014, p, 135.
57
See, more elaborately, Geiger & Izyumenko 2019a, p. 27 et seq., who identify a number of
factors in the freedom of expression case law of the ECtHR (summarizing at p. 28: “1) the
character of expression (commercial or not; artistic; etc.); 2) the purpose and nature of
expression/ information at stake (political; cultural; entertaining; otherwise in the general
interest); 3) the status of a counterbalanced interest and the degree of interference with it; 4)
availability of alternative means of accessing the information; 5) the timing/ “oldness” of
speech; 6) the status of the speaker/ user (active or “passive”; press; etc.); 7) the form of
expression; 8) the medium of expression (notably, the Internet); 9) the nature and severity of
the penalties; etc.”).
58
Case C-469/17 Funke Medien NRW (Afghanistan Papers) ECLI:EU:C:2019:623, para 74
and Case C-516/17 Spiegel Online ECLI:EU:C:2019:625, para 58.
59
See, supra, Chapter 4, n 22 and accompanying text.
238
respect the separation of powers.
60
In any event, the standard applied should not be
more permissive of restrictions on fundamental rights than the one applied by the
ECtHR, meaning that restrictions imposed on, for instance, the right to freedom of
expression must in any case be “necessary in a democratic society”, although the
discussion of Ashby Donald and Neij and Kolmisoppi in § 84 and 85 showed that the
ECtHR does not place great restraints on states in this regard, including on national
courts.
Arguably the limits imposed by the EU Charter would be too permissive if it was
interpreted as merely requiring that the essence of rights be respected. Nevertheless,
this appeared to be what AG Szpunar suggested in his Opinion in Spiegel Online when
he concluded that the legislative balance must be respected except “in the event of an
infringement of the essential content of a fundamental right”.
61
Such as standard is –
in my opinion – far too strict (or lenient, depending on one’s point of view). In the
first place, focusing solely on potential violations of the essence
62
of a right is a one-
sided exercise, which does not take account of the importance of a particular remedy
to safeguarding the right holder’s rights and interests and the broader purposes
pursued by copyright. More importantly, such a standard risks permitting serious
interferences with rights that fall short of violations of the essence and does not
recognize that the standard of review ought to fluctuate depending on the seriousness
of the interference with the right in question and the intrinsic importance of that right.
Imagine a private corporate right holder who attempts to suppress the publication of
theretofore unpublished documents in which it holds the copyright and which
evidence gross corporate misconduct of great public interest. Unless the suppression
of those documents is qualified as a violation of the essence of the right to freedom of
expression and of information, the meaning of which is enigmatic, the AG’s approach
may stand in the way of the free dissemination of such documents if their publication
can for some reason not be safeguarded by a statutory exemption.
Courts must review not only whether the enforcement of copyright respects the
essence of rights, but also whether it is not otherwise disproportionate. This
assessment must be context specific and more intensive as the degree of interference
and the intrinsic importance of the right concerned increase. An alternative standard
could be found in the manifestly disproportionate test applied by the CJEU in relation
to measures that involve political, economic and social choices, even if that is a
60
Cf. Mylly 2005, p. 196, who notes that the ECHR only lays down minimum standards of
protection.
61
Opinion of AG Szpunar in Case C-516/17 Spiegel Online ECLI:EU:C:2019:16, para 62.
62
The term “essential content” appears to be a direct translation of “contenue essential” used
in the original French version of the Opinion, which is the French term used for the concept of
essence in article 52(1) EU Charter.
239
relatively strict test so far applied predominantly in cases involving restrictions on the
right to property and the freedom to conduct a business.
63
Such a standard primarily
implies that the disproportional relationship between benefits and costs must be
obvious. It is a deferential standard that permits courts to take account of the fact that
the legislature’s task of striking a fair balance is complicated by empirical and
normative uncertainty. Moreover, that standard is also not principally incapable of
adapting to the circumstances: the more serious interference and the greater the
importance of the right involved, the sooner disproportionality will be obvious. If this
is accepted, a remedy such as an injunction may not be granted if it creates a
manifestly disproportionate interference with a Charter right. The degree of
interference with the right must be compared to the fulfilment of the purposes
pursued by copyright protection, focusing on the choice made by the legislature to
subject the use in question to exclusive right holder control, as well as to the impact
non-enforcement would have on the fundamental rights of the right holder, notably
the right to property and an effective remedy.
191. The problem of partial harmonization. Applying a deferential standard
recognizes at the same time that, on the one hand, copyright is not immune to
fundamental rights scrutiny and, on the other hand, that the primacy of striking a
balance between the legion of interests involved lies with the legislature. The
foregoing is complicated by the fact that most limitations and exceptions in the acquis
communautaire are optional. Whether therefore the enforcement of copyright results
in a disproportionate interference with a fundamental right will not merely be a result
of choices made by the EU legislature, but potentially also on the choice of a Member
State not to implement a particular limitation or exception. In principle, the same
manifestly disproportionate standard can be applied. However, the fewer optional
limitations and exceptions a Member State has chosen to implement, the more likely
it is limitations placed on fundamental rights in concrete cases must be considered
manifestly disproportionate. In practice, it might very well be that the omission to
implement a particular optional exception or limitation must almost consistently lead
to the conclusion that the use safeguarded by that provision must be permitted to
prevent a manifestly disproportionate limitation of a fundamental right. One could
imagine the lack of a quotation exception, or even a parody exception might produce
such results.
64
Nevertheless, this does not necessarily mean the exception or
limitation itself is in effect mandatory. In the end, the range of permitted uses falling
within an explicit limitation or exception will likely be wider than those under a
63
See, supra, Section 4.3.1.
64
Cf. Griffiths 2019, p. 47.
240
differential manifestly disproportionate test, since the element of review of the latter
is absent in the application of an explicit limitation or exception.
Finally, it must be recalled that in several Member States the law prescribes that an
injunction must automatically be granted where copyright is infringed. It follows from
the foregoing that such provisions are in my opinion contrary to the Enforcement and
InfoSoc Directives. If it is not possible to interpret such provisions in conformity with
those directives, national court may need to disapply them if their application would
lead to a violation of a Charter right. Arguably, this follows from the case law discussed
in § 169 concerning the disapplication of national law that conflicts with a general
principle of EU law.
192. Examples. Some examples can illustrate the boundaries set by Charter rights
when using a (flexible) manifestly disproportionate standard. For instance, should a
court grant an injunction to the private corporate right holder invoking copyright to
avoid dissemination of internal documents evidencing grave corporate misconduct?
This may very well result in a manifestly disproportionate interference with the right
to freedom of expression and information, if one considers that, on the one hand, such
a right holder does not benefit from moral rights protection and has no strong
exploitative interests in the works concerned, and, on the other hand, the works in
question concern a matter of great public interest and are not otherwise publicly
available.
65
This conclusion is reinforced by the fact that the use in question would
likely otherwise be allowed as a lawful quotation if not for the unpublished nature of
the works, which requirement principally aims at protecting moral rights interests
which the corporate right holder does not have. It is therefore easy to agree with the
well-known Scientology decision of the Court of Appeal of The Hague, in which it
refused to grant an injunction in a largely similar situation.
66
On the other hand, it is questionable whether the use that was the subject of the
proceedings in Klasen should be permitted on grounds of freedom of expression, at
least if one concludes that it cannot be brought within the scope of any exception.
67
The Court of Appeal of Versailles, after remand, rejected any fundamental rights
based arguments, although on questionable grounds. It considered that it was up to
the Klasen, the painter in question, to establish in which way the fair balance required
that he use the works without authorization, that Klasen could have easily substituted
those works for other photographs and that the works taken were not well-known
65
Cf. the judgement of the ECtHR in Akdeniz, discussed, supra, Chapter 4, n 46 and
accompanying text, in which the ECtHR considers those same factors.
66
The Hague Court of Appeal, 4 September 2003, Scientology, published in Mediaforum
2003-10, nr. 45.
67
See, supra, n 18-19 and accompanying text.
241
enough to be the subject of “appropriation”.
68
These are largely irrelevant for the
determination of the “fair balance”, which should not in the first place focus on
choices made by the user, but on the degree of interference with their freedom caused
by the enforcement of copyright.
69
Klasen’s use of the photographs, taken from an
advertising campaign, was not predominantly commercial, but was, according to the
artist, intended to stimulate critical reflection in the minds of the public about the
social order and the consumer society.
70
Courts should not question an artist’s choice
to want to convey their message by using a particular kind of source material, in this
case a photograph used in a commercial advertising campaign.
71
It is all but certain
that any such photograph is subject to copyright and thus that its re-use is subject to
authorization. This arguably creates at least a moderate interference with the right to
freedom of expression, because it subjects the second artist to the risk that such
authorization is refused.
72
At the same time one can question whether the
encroachment into the remuneration interest of the author is all that strong,
considering it was a derivative use on what is likely a (very) minor licensing market in
light of the overall commercialization of the photographs. There is thus an argument
to be made that, if striking an optimal balance, the derivative use made by Klasen
should be favoured over the exploitative interest of the author of the original
photographic works. If, however, the use cannot be brought within the scope of an
existing exemption, which can be questioned,
73
the result may be different. If no
exemption applies, the author is in principle entitled to authorize the use and be
remunerated for it, meaning the legislature must be assumed to consider the grant of
such rights conductive to the attainment of the objectives pursued by copyright. Given
the uncertainty concerning the answer to the question how strong authorial
protection ought to be for copyright to attain its objectives, one could conclude that it
is not manifestly disproportionate to reserve to the author the control over the
derivative uses in question to the detriment of other artists.
68
Versailles Court of Appeal (First Chamber), 16 March 2018, No. 15/06029.
69
Also critical is Geiger 2018, p. 22-24.
70
See also the judgement of the first court of appeals in this case, Paris Court of Appeal (First
Chamber), 31 January 2012, No. 10/02898.
71
Cf. Geiger 2018, p. 23.
72
On similar grounds the German Federal Supreme Court in its Metall auf Metall ruling
considered that there would be a “considerable infringement” of the freedom of art if the
sampling in question were not permitted. German Federal Constitutional Court (First Senate),
31 May 2016, 1 BvR 1585/13 – Metall auf Metall, English translation published in IIC 2017, p.
343, paras 96-98 & 107.
73
Such a use can very well be characterized as an artistic quotation, or as a pastiche.
242
7.4 Synthesis
193. Synthesis. There exists an inherent conflict between the exclusivity of
copyright and certain fundamental rights. An interpretation and application of
substantive copyright norms may not completely resolve this conflict adequately. It is
now widely recognized that (the enforcement of) copyright may create a
disproportionate interference with fundamental rights. I have suggested in this
Chapter that such tensions can largely be addressed at the time when determining
which remedies ought to be available to the author. Importantly, the framework put
in place by the Enforcement Directive and the InfoSoc Directive does not require that
injunctions are automatically granted in case of infringement. Remedies must not
only be “effective” and “dissuasive”, but also “proportionate”. I have suggested that a
remedy can in any event not be considered proportionate if it leads to a manifestly
disproportionate interference with a Charter right. An open question is to what extent
Member States would have discretion beyond those situations, for instance by
applying their own standards of fundamental rights protection. In other words, if
granting an injunction would not lead to a manifestly disproportionate interference
with a Charter right, nor is otherwise precluded by other norms of EU law, such as
competition law, must it be granted? Or are there situations in which Member States
may deny an injunction to avoid a disproportionate interference with a national
standard of fundamental rights protection? This would largely depend on what the
CJEU considers to constitute “effective” and “dissuasive” remedies and when the
refusal to grant a particular remedy interferes with the fundamental rights of the right
holder. In its case law on the availability of injunctions against intermediaries,
discussed in Section 4.3.2.3(iii), the CJEU has mostly emphasized that the absence of
a remedy may not lead to a violation of the essence of the rights to property and to an
effective remedy, but besides being highly enigmatic such a standard is incomplete,
since by itself it does not rule out serious interferences against only negligible gains.
It is thus up to the CJEU to clarify the bandwidth of Member State discretion,
detailing in which situations a particular remedy must always be denied and in which
it must always be granted.
An important question on which I have only touched indirectly, but which certainly
deserves further study, is under which circumstances only either the grant of an
injunction or of damages must be refused, and in which both. This will likely largely
depend on the exploitative interest of the right holder. If there is none, both can be
refused to avoid a disproportionate interference with a fundamental right. If there is,
and the use in question would create substitutionary harm, damages may be in order.
Most complicated will be deciding those cases in which a licensing market exists, but
243
in which the reservation of exclusivity to the right holder is nevertheless found to be
disproportionate. In that case one must essentially consider which of two alternatives,
free use or remuneration, is most proportionate.
244
PART IV – CONCLUSIONS
This final part summarizes the findings of the previous parts and places them in a
broader perspective. It suggests that balancing in the form of proportionality analysis
has the potential to contribute to the coherence and transparency of judicial decision-
making by the CJEU when determining the scope of protection. To achieve this, the
CJEU should clearly identify which normative arguments clash and explain why the
degree of fulfilment of one normative argument achieved by a particular decision
outweighs the degree of interference with the other.
245
8 CONCLUDING AND SUMMARIZING COMMENTS
194. The research question. This dissertation has focused on the question what
is and ought to be the role of fundamental rights in determining the scope of
protection in EU copyright law. To answer this question I started, in Part I, with a
more general enquiry into the construction by the CJEU of copyright norms through
the interpretation of the acquis communautaire. In Part II, I presented a theoretical
model of balancing and discussed the use of proportionality analysis, and specifically
of the concept of fair balance, by the CJEU as well as the ECtHR, in whose case law
that concept first emerged. This discussion focused both on the emergence of this
model of analysis in general and its application in the context of copyright in
particular, in order to illustrate the particularities and problems of the CJEU
approach. In Part III I adopted a more normative perspective, suggesting how
fundamental rights arguments can be used more coherently. This concluding chapter
aims at summarizing the findings of the preceding chapters and to place them in a
broader perspective.
1
The main difficulties of the CJEU approach that the analysis of Parts I and II revealed
are briefly outlined in Section 8.1. The alternative approach developed in Part III is
presented in Section 8.2 and illustrated with a number of examples. I conclude with
some concluding observations in Section 8.3.
8.1 The CJEU and the creation of copyright
195. Judicial norm creation and rudimentary balancing. It is undeniable
that the CJEU plays an important role in the development of copyright law in the EU.
As a result of the EU’s harmonization efforts, the abstract delineation of the scope of
protection now falls largely within the competence of the CJEU. There can be little
doubt that in this regard the CJEU often has a certain measure of discretion, meaning
it will create legal norms.
2
The way it exercises this discretion, however, is hardly a
1
I have approached the question at the centre of this dissertation in a broad and general
manner in order to address a (perceived) gap in legal doctrine in terms of a systematic analysis
from a legal theoretical perspective of (the CJEU’s approach to) the use of fundamental rights
arguments in copyright adjudication. I have focused on providing the building block for a more
systematic approach of such arguments. I recognize that, as a result, many specific issues have
only been addressed rather superficially, such the external justification of balancing decisions
and the weighing of rights and interests that conflict with those of right holders. Issues such
as these no doubt ask for further investigation.
2
Accordingly, it is to be expected that its decisions generate certain “externalities”, i.e.
consequences beyond those for the parties involved directly in the proceedings. Mylly 2019, p.
279-282 suggests that for this reason “the CJEU should limit its decision-making in favour of
the legislator” (p. 281) as much as possible in cases in which once can expect far-reaching
consequences that are difficult to predict, such as cases concerning Internet-infrastructure.
Even if one agrees with this assessment, I do not necessarily agree with the argument that the
246
paragon of consistency. This was illustrated, for instance, with the Court’s approach
to hyperlinking.
3
In a series of decisions, it has created the legal norm that
hyperlinking, whether by means of a deep link or a framing link, to freely available
legal sources is permitted, while linking to illegal sources is not permitted if the user
knew or should have known of the illegality, which knowledge is presumed when the
user acts with a profit motive. The Court arrived at this rule by applying a convoluted
and mutative interpretation of what constitutes a communication to the public. Cases
such as these often do not entail a consistent dogmatic development of the existing
legal framework and precedent, even if it is presented as such, but rather a largely
hidden balancing of rights and interests. In GS Media, one of the judgements in the
hyperlinking-saga, the CJEU admitted as much, by emphasizing the purpose of the
InfoSoc Directive to safeguard a fair balance of rights and interests, as well as the
importance of hyperlinking to a sound operation of the Internet and its corresponding
importance to freedom of expression and of information.
Arguably, much of the case law of the CJEU can be understood as a search for a
proportionate relationship between the desire to guarantee authors and related right
holders an appropriate reward and the need to safeguard other rights and interests.
This would be an understandable approach to the interpretation of largely open
textured norms which are precisely intended to strike such a balance. Often, however,
this search for balance is hidden behind a rhetoric that includes terms such as “high
level of protection”, “broad” and “strict interpretation” and “effectiveness”. Even the
use of the concept of “fair balance”, which is more and more frequent, while indicative
of a balancing exercise, often cannot escape the criticism that it is no more than an
“empty slogan”.
4
196. Striking a balance and the failings of the CJEU method. The
meaning and functioning of the concept of “fair balance” in decisions like GS Media
is unclear. Balancing of competing normative arguments is a process by which the
priority between two (or more) of such arguments, such as rights, is established. To
determine which right or interest prevails in a given set of circumstances, one must
determine to which degree a decision one way (e.g. exclusivity) will contribute to the
fulfilment of one normative argument as compared with its fulfilment under a
decision the other way (e.g. free use), and compare this degree of fulfilment with the
degree to which that decision will interfere with the fulfilment of the other normative
use of proportionality analysis exacerbates the issue of externalities. These externalities may
arise where courts exercise discretion, regardless whether they do so by means of a
proportionality analysis involving fundamental rights or not. Where the law is unclear,
externalities may often be unavoidable, and courts will simply have to decide as best they can.
3
See, supra, § 41-43.
4
See, supra, Chapter 4, n 282 and accompanying text.
247
argument, taking into account the intrinsic importance of the rights and interests
involved and any uncertainty concerning the assumptions made.
Arguably, the most significant problem with the CJEU’s explicit reliance on the
concept of fair balance in copyright cases is the lack of a clear identification of these
normative arguments. As long as these are not clearly defined, there can be no rational
talk of balancing of rights and interests. Typically the CJEU merely refers to the right
to intellectual property in article 17(2) of the EU Charter, without specifying what this
protection entails. This lack of specification is not odd when one realizes that the right
to property, as conventionally interpreted, only protects (legitimate expectations to)
existing entitlements, but does not itself define the content of those entitlements.
Therefore, when determining the scope of protection in light of both the fundamental
rights and interests of right holders and of users, the right to property has little role
to play. Instead of relying on an undeveloped “right to intellectual property”, the main
interest of right holders that arguably ought to be taken into account finds its origin
in the intention of the legislature to permit them to obtain a reward by exploiting the
protected subject-matter in order to attain certain objectives. Notably, the core
objectives of EU copyright law are both rewarding creativity of authors and
performers in itself, as well as the desire to incentivize creation generally.
As was illustrated in Chapter 2, this teleological argument already appears to guide
much of the CJEU’s decisions. It is when (other) fundamental rights are involved, that
the CJEU suddenly abandons teleology and adopts a property rhetoric. This appears
to me improper, unnecessary as well as to obfuscate which rights and interests must
really be considered. The teleological argument, taking account of the purpose to
reward right holders, is itself not applied coherently or transparently either, being
shrouded in a veil of useless concepts such as broad and strict interpretation. Such
concepts ought to be abandoned, as they by themselves cannot justify the choice for
including a particular use within the scope of protection, nor a choice to exclude it.
Instead, the teleological argument, together with fundamental rights arguments, must
themselves be considered in conjunction with other interpretative arguments when
determining the scope of copyright protection in the course of interpretation of the
acquis communautaire.
8.2 The impact of fundamental rights on the scope of protection
197. Balancing scenarios. Only once the relevant “rights and interests”,
including those deriving from the legislative purpose, have been identified can they
be taken into account in the process of interpretation and application of copyright
norms. In Part III, I distinguished a number of different scenarios in which
248
fundamental rights arguments and balancing can (sometimes: should) play a role: (i)
the interpretation of the scope of concepts that define the content of exclusive rights,
(ii) the interpretation of the scope of concepts that define the content of limitations
and exceptions, (iii) the determination of the content of open standards and the
overall assessment whether the application of a limitation or exception strikes a fair
balance and (iv) whether the grant or refusal to grant a particular remedy creates a
disproportionate interference with a fundamental right.
198. Exclusive rights. The issue of hyperlinking can be used to illustrate how the
CJEU might use a more explicit balancing approach in a more coherent and systemic
manner. As noted in the previous section, the CJEU’s approach to hyperlinking has
not been without flaws. The central question the CJEU has had to address is under
which circumstances, if any, the provision of a hyperlink to a copyright protected work
available elsewhere online is itself a communication to the public. In Svensson, the
CJEU simply relied on its dogma of broad interpretation, stretching the concept of
communication, which earlier had required an “indispensable intervention” of the
user to enable access by the public, to bring all hyperlinks within the scope of that
concept.
5
Instead of concluding straight away that a broad interpretation was in order,
it ought to have relied on textual, systemic and teleological arguments to determine
whether a broad or a narrow interpretation was appropriate. Teleological arguments
relating to rewarding right holders and systemic fundamental rights arguments might
have been indicative of the proper scope, in particular if one deems the textual
meaning of the concept of communication ambiguous. For instance, permitting
simple clickable links to protected works has no negative impact on the primary
market of the work. Although perhaps one could argue that permitting right holders
to license hyperlinks would moderately contribute to the objectives of copyright law,
it would have detrimental impact on the functioning of the internet of the internet and
accordingly also on the right to freedom of expression and of information. This
implies the placing of such hyperlinks ought not be subject to right holder control, not
because they do not reach a (new) public as the CJEU concluded, which they arguably
do, but because they can be considered to fall outside the scope of the concept of
communication. A different conclusion might have been reached with regard to inline
or framing links. Contrary to simple clickable (textual) links, these may interfere with
the ability to exploit the work effectively on the primary market, by displaying the
work on the linking website directly, since they no longer require users to go to the
original website to enjoy the work. At the same time, subjecting such links to
5
As AG Wathelet pointed out in his Opinion in Case C-160/15 GS Media ECLI:EU:C:2016:221,
para 60, the application of that criterion ought to lead to the conclusion that the placing of a
hyperlink cannot be qualified as an act of communication.
249
authorization arguably interferes to a lesser degree with the functioning of the
internet and with fundamental freedoms.
6
199. Limitations and exceptions. On other occasions, the potential conflict
with a fundamental right is better taken into account during the interpretation or
application of a particular limitation or exception, either when determining the prima
facie scope of those provisions or in the course of the assessment whether their
application in the concrete circumstances of the case preserves a fair balance. The
Renckhoff case can serve as an example.
In Renckhoff the CJEU refused to construe the right of communication to the public
narrowly in order to protect the right to education in a case concerning the online
communication on a school website of a photographic work as part of a student
assignment. Instead, the right to education may be safeguarded in particular by an
exception for use for the sole purpose of illustration for teaching (permitted by art.
5(3)(a) InfoSoc Directive). Moreover, the student’s right to freedom of expression may
be protected by a quotation exception (permitted by art. 5(3)(d) InfoSoc Directive).
7
The German Federal Supreme Court (BGH), however, in its judgement of 10 January
2019, held that no limitation or exception applied. It agreed with the rejection by the
court of appeal of the application of the (German implementation of the) exception
for teaching purposes, considering that it is questionable that the use served the
“purpose of illustration for teaching”.
8
Similarly, the BGH considered the quotation
exception not applicable because the illustrative use in the school assignment lacked
a requisite purpose (Zitatzweck).
9
In both instances, the narrow meaning given to the exceptions under consideration
must be criticized. The interpretation of the exception for teaching purposes
unnecessarily reduces the scope of the exception to the detriment of the right to
education. It should not be limited to permitting active use by teachers, but should
also cover use by students, as also AG Campos Sánchez-Bordona suggested in his
Opinion in Renckhoff.
10
Similarly, the exclusion of the use from the scope of the
quotation exception leads to a narrower scope than necessary. At first sight, the ruling
by the BGH appears to be in line with the recent rulings by the CJEU concerning the
quotation exception in Metall auf Metall and Spiegel Online. In those cases, the CJEU
considered that a quotation “must have the intention of entering into a ‘dialogue’ with
6
Cf. Ohly 2018a, p. 117, who argues similarly.
7
Cf. Ohly 2018b, p. 1003.
8
German Federal Supreme Court (First Civil Senate), 10 January 2019, I ZR 267/15 – Cordoba
II, para 61.
9
Ibid., para 53.
10
Cf. the Opinion of AG Campos Sánchez-Bordona in Case C-161/17 Renckhoff
ECLI:EU:C:2018:279, para 114-115.
250
the work”
11
and that the user “must establish a direct link between the quoted work
and his own reflections … since … a quotation must inter alia be intended to enable
criticism or review”
12
. However, such a restrictive understanding of the CJEU’s
judgement unnecessarily reduces the scope of the quotation exception to the
detriment of freedom of expression. Considering the CJEU’s ruling in Painer that a
quotation need not be made in subject-matter that is itself protected by copyright,
such a “dialogue” arguably does not need to be explicit, but may also be implicit or
unspoken.
13
Such an interpretation also does better justice to the text of article 5(3)(d)
of the InfoSoc Directive, which does not per se require such a dialogue. Moreover,
article 10(1) of the Berne Convention, to which the EU must adhere as a signatory to
the TRIPS Agreement and the WCT, requires quotations be permitted provided “their
extent does not exceed that justified by the purpose” without limiting the scope to
certain specific purposes.
14
There is thus little reason to consider that the inclusion of
a photograph in a school assignment for illustrative purposes is not a quotation.
Arguably, therefore, the use in question must be considered both a use for the purpose
of illustration for teaching and a quotation. If the other conditions of those provisions
are also fulfilled the ultimate answer to the question whether either provision may be
applied in the concrete circumstances of the case essentially depends on, in case of
article 5(3)(a), whether the use does not go beyond what is “justified by the non-
commercial purpose” and, in case of article 5(3)(d), whether the “use is in accordance
with fair practice, and to the extent required by the specific purpose”, which are
specific standards that themselves entail a proportionality analysis.
15
This permits a
full consideration of all rights and (legitimate) interests involved. AG Campos
Sánchez-Bordona carried out such a balancing exercise, albeit within the context of
application of the three-step test. In essence, he considered that the fact that the use
in question was non-commercial and did not undermine “possible financial benefits
to be gained from the presence of the photograph on the internet” meant the
legitimate interests of the right holder were outweighed by the interests arising from
the right to education.
16
Whether one agrees with this particular outcome is not
11
Case C-476/17 Pelham and Others (Metall auf Metall) ECLI:EU:C:2019:624, para 71.
12
Case C-516/17 Spiegel Online ECLI:EU:C:2019:625, para 79.
13
For instance, a free-standing quotation on one of the first pages of a book.
14
Cf. Bently & Aplin 2018, p. 7-8. See also Jongsma 2019, p. 10.
15
See also, supra, § 166.
16
Opinion of AG Campos Sánchez-Bordona in Case C-161/17 Renckhoff ECLI:EU:C:2018:279,
paras 123-127. See also Opinion of the European Copyright Society concerning the scope of the
economic rights in light of case C-161/17, Land Nordrhein Westfalen v. Dirk Renckhoff
(‘Córdoba case’) (2018), retrieved from <https://europeancopyrightsociety.org.files.
wordpress.com/2018/10/ecs-opinion-renckhoff-cordoba-final.pdf> accessed on 1 July 2019,
para 10.
251
important here.
17
What is important, is to recognize that an interpretation of
limitations and exceptions that gives them a broad prima facie meaning ensures that
the exercise of the fundamental rights that are safeguarded by those provisions is
enabled to the greatest possible extent. At the same time, such a broad interpretation
is not to the detriment of the rights and interests of right holders, because they are
safeguarded by the concluding balancing exercise.
200. Enforcement. Finally, it is possible that the use in question does not come
within the scope of any limitation or exception to begin with, even when interpreted
broadly. This may be either because no such limitation or exception is permitted by
EU law, or because a Member State has opted not to implement an optional limitation
or exception. In either case the enforcement of copyright may cause a
disproportionate interference with a fundamental right. For a long time it has been
debated whether in such circumstances fundamental rights ought to function as
external limits to copyright. Insofar as the exclusive right so limited finds its origin in
EU law, the CJEU appears to have closed the door for such external effect in
Afghanistan Papers and Spiegel Online. In light of these decisions, I have suggested
that the primary way to avoid such interferences is through the refusal to grant an
injunction or of damages, or both, depending on the circumstances of the case.
18
The
determination whether a particular remedy is proportionate vis-à-vis affected
fundamental rights must not be an independent assessment of whether the use is best
subjected to exclusivity, to remuneration, or left free altogether. It ought to take
17
One could argue that, in particular if the quality of the photograph made available by the
school is high, the use could undermine the initial exploitation by the author himself because
those who want to access the work no longer need to visit the website on which it was originally
communicated. Simultaneously, one could argue that if the school had password-protected the
assignment, it could still have made it available to the target audience of the presentation,
without making the work available to every person with Internet access. This would have
meant a relatively large increase in protection for the author, in return for a minor limitation
on the right to education and the right to freedom of expression. On the other hand, as the AG
pointed out in footnote 81 of his Opinion, whether being password-protected or not, the
“public that will access the site will, in all probability, be the same …, namely the pupils and
their families and friends, together with the teachers”.
18
As such I am not as pessimistic as some other commentators, such as Geiger & Izyumenko
2019b, p. 25 (“An external freedom of expression limitation on copyright is crucial for allowing
to address all the legitimate uses that are emerging but that are not subject to an existing
limitation.”) and Snijders & van Deursen 2019, p. 1189, who suggest that the approach by the
CJEU may place national courts for the uncomfortable choice to either abide by the standards
of the ECHR or comply with the judgements in Afghanistan Papers and Spiegel Online. I am
sceptical whether such a dilemma really exists. As I see it, it is not the mere fact that no
limitation or exception applies that will ipso facto lead to an interference with the right to
freedom of expression, but rather the grant by a court of particular measure (injunction,
damages; or, like in Ashby Donald and in Neij and Sunde Kolmisoppi, the criminal
conviction). If no limitation or exception applies, but a court refuses to enforce copyright by,
for instance, rejecting the request for an injunction and damages, no interference with that
right exists.
252
account of both the choice by the EU legislature to not provide for an exception or
limitation at all or to not make it mandatory, and the choice of the Member State not
to implement one if given the choice. It must take particular account of the empirical
and normative uncertainty concerning the answer to the question what scope of
protection is appropriate for copyright to attain it objectives.
The assessment of the appropriateness of certain remedies may depend both on
Charter rights and national standards of fundamental rights protection. The latter is
true unless the CJEU decides to lay down one single standard based on the Charter.
It should probably avoid doing so as that would eliminate the discretion left to
Member States in the Enforcement Directive, providing further fuel for the argument
that the CJEU predominantly invokes the Charter to achieve greater harmonization
of copyright law. It is not unlikely, following its approach adopted by the CJEU in
cases concerning enforcement against intermediaries, that the CJEU will permit
national courts to grant remedies as long as they do not result in the violation of the
“essence” of rights, however that concept must be construed. At several places in this
dissertation I have expressed my doubts as to the appropriateness of that standard
because it does not reflect that the intensity of review must fluctuate depending on
the intrinsic importance and intensity of the interference with the rights at stake.
Instead, the CJEU could, for instance, lay down the standard requiring that a remedy
must be refused if the resulting degree of interference with the affected fundamental
right would be manifestly disproportionate in relation to the degree to which
precluding such uses would further the objectives pursued by copyright and the
potential interference caused with the legitimate expectations to the peaceful
enjoyment of their possessions in case of non-enforcement. This assessment can to a
certain extent be guided by the case law of the ECtHR, in particular the factors
previously identified by that Court to determine the intensity of interference with a
right. However, the standard applied should be particular to EU law, considering that
the ECHR only offers a subsidiary level of fundamental rights protection.
201. Final examples. The three cases decided by the CJEU on 29 July 2019
provide an excellent further opportunity to illustrate how the foregoing may work out
in practice.
19
In both the Afghanistan Papers and Spiegel Online cases the issue is in
essence whether the news organization in question was allowed to publish entire
works in order to inform the public. The CJEU showed itself willing to give a broad
interpretation to both article 5(3)(c), second case, and article 5(3)(d) of the InfoSoc
Directive.
20
As a result, the resolution appears to primarily depend on the outcome of
19
On these cases, see also, principally, § 105.
20
See, supra, § 166.
253
a proportionality assessment: does permitting the use lead to a greater degree of
fulfilment of the right to freedom of expression, including the freedom of the press,
and of information than that it would interfere with the purposes that undergird
copyright protection. As regards the latter, I have argued that EU copyright law is
primarily intended to guarantee right holders a reward. Moreover, however, in the
case of authors and performers, it can also be said to intend to safeguard their
dignity.
21
This implies a different outcome may be justified in both cases. The Court
of Appeal of Cologne considered in Afghanistan Papiere that there was no great
public interest in the public availability of the confidential military status reports in
their entirety, due to fact that their content was largely made public in the form of
summaries and that the publication of extracts could have satisfied public curiosity.
22
Even if one agrees with that assessment, there is a strong argument to be made that
enforcement of copyright is not necessary for copyright to attain its purposes. The
German state has no exploitative interest to protect, nor does the enforcement of
copyright intend to safeguard authorial dignity. Instead it merely aims at securing
“military and other security-sensitive interests of the Bundeswehr”.
23
The protection
of authorial dignity is arguably what distinguishes Afghanistan Papers from Spiegel
Online. In the latter case the author has no real exploitation interest either. However,
he does have an interest in making his work available on his own terms that EU
copyright law arguably intends to protect.
24
In particular, the author wishes to limit
publication to his own website in a manner that makes unequivocally clear that he has
distanced himself from the opinions expressed in the works in question.
25
It is
arguable that permitting external publication from which such distantiation is not
clear at least moderately interferes with that interest. At the same time, one could
argue that the fact that the works in question were already publicly available on the
author’s own website meant that the freedom of the press and the right to freedom of
information was only interfered with to a minor degree.
26
21
See, primarily, Section 5.3.2.
22
Court of Appeal of Cologne, 12 June 2015, 6 U 5/15, para 56.
23
Ibid. The protection of confidential information, as also AG Szpunar pointed out in his
Opinion, is not a legitimate interest as such (see supra, § 107). Accordingly, I disagree with the
conclusion by the Court of Appeal (para 56) that the mere decision by the German State not to
publish the confidential military status reports is a legitimate interest in itself, i.e. without
regard to the underlying purposes of copyright.
24
Moreover, as the AG noted in his Opinion (para 79), that interest is of a fundamental rights
nature since art. 10 EU Charter protects not only the freedom of thought, but also the freedom
to change belief.
25
It can very well be argued that exclusive economic rights are not intended for this purpose
and that if Member States want to enable authors to object to these kinds of uses, they are free
to grant them appropriate moral rights protection. Cf., supra, § 152.
26
This assumes the intrinsic importance of both the interest of the author and the rights of the
press and the public are more or less the same.
254
Metall auf metall requires a different approach. This case does revolve around an
exploitation interest of the right holder. In particular, the case essentially boils down
to the question whether a phonogram producer is entitled to control a licensing
market for artistic (but commercial) uses of short samples. I have suggested that this
issue can be entirely approached within the context of the quotation exception.
27
Instead, the CJEU opted for a bifurcated approach: unrecognizable samples used in
new artistic works are not reproductions, while recognizable samples are
reproductions although they can be quotations. The CJEU’s reasoning, while laudably
taking account of the freedom of arts, is inadequate and ultimately illogical. Notably,
the CJEU does not substantiate why excluding the use of unrecognizable samples
from the reproduction right does not interfere with the opportunity of realising
satisfactory returns on his or her investment. Obviously, foreclosing a licensing
market will interfere with that opportunity. Even if that can be justified,
28
the CJEU
does not make a serious effort. Importantly, if one, like the CJEU does, considers that
the creative use of short samples does not interfere with the opportunity of realizing
satisfactory returns, it is unclear why that is different for recognizable and
unrecognizable samples. If it is admitted that the same is true for recognizable
samples, they ought to equally be considered a non-infringing use within the context
of the application of the quotation exception. In this regard, the requirement,
formulated by the CJEU, that the quoting subject-matter enter into a “dialogue” with
the quoted should not be applied too strictly. Finally, if a recognizable sample is
ultimately considered not to be a quotation, nor considered to come within the scope
of any other limitation or exception, one must seriously doubt whether the right
holder can be considered entitled to any remedy, if one strictly follows the CJEU’s
reasoning. After all, if granting an injunction or damages cannot be said to be
necessary for copyright to attain its purpose (providing a satisfactory return on
investment), the resulting limitation of the freedom of art is in any case
disproportionate.
8.3 Striking a fair balance: the healing power of balancing
202. Benefits of balancing. The problems of the European copyright system are
well-documented. It has been built on the idea that a high level of protection is
necessary to foster investment and drive forwards the digital economy. Other
(fundamental) rights and interests often appear placed on the back burner. This has
led to a system of broad rights combined with an inflexible system of non-mandatory
limitations and exceptions, in which a student can be pursued for damages for
27
See, supra, § 161.
28
See ibid. and § 150.
255
publicly sharing a photograph with their classmates and their parents and teachers,
without any consideration for the fundamental rights affected nor the impact on the
position of the author.
29
Ultimately, the haphazard application of rules largely developed during analogue
times to digital situations may lead to a reduced legitimacy of the copyright system in
the eyes of the public, as also the European Copyright Society pointed out in its own
comment on the Renckhoff case.
30
This does not necessarily mean the EU copyright
system is in need of a complete overhaul. Legitimate user interests, positivized by
fundamental rights, can largely be accommodated by an appropriate interpretation of
both rights and of limitations and exceptions. Arguably the CJEU already does this on
many occasions, as exemplified by its increased references to the concept of fair
balance. What has been mostly lacking so far is a proper conceptualization of the
function of this concept in the copyright context and a move away from the
proprietarian paradigm, which takes broad protection as a starting point as a matter
of principle in itself.
203. Fairness and the concept of fair balance. It must be stressed that a full
consideration of fundamental rights does not necessarily mean a reduced scope of
protection. Undoubtedly, the CJEU as well as national courts itself have a
considerable discretion when striking a balance. Importantly, balancing, I have
emphasized on more than one occasion, is not morally neutral. I argued that, as a
consequence, conceptualizing copyright as the consolidation of competing
fundamental rights claims, or even as a limitation of rights of others in the public
interest, cannot isolate it from difficult questions about fairness and justice.
Determining to which degree including a certain use within the scope of protection
fulfils the objective of rewarding right holders may necessitate recourse to moral
arguments relating to precisely such questions, especially if it accepted that granting
protection to authors and performers is not solely intended to incentivize creation but
also to reward them and protect their dignity. Arguably, it falls within the discretion
of the CJEU, and in its place also national courts, to consider that it is, in principle,
fair or just to grant such protection based on deontological doctrines. However, if it
does so, it must also take account of their contentious nature, that is the existent
29
Ironically, while the student’s alleged incursion into the rights of the author in the Renckhoff
case was ultimately remedied by a strict application of copyright law, the legal proceedings
needed to rectify it have led to the situation in which the same photograph can now be accessed
free of charge indefinitely on the CJEU website, as part of the Opinion of the AG, as well as on
the website of the German Federal Supreme Court, as part of its own judgement in the case.
30
Opinion of the European Copyright Society concerning the scope of the economic rights in
light of case C-161/17, Land Nordrhein Westfalen v. Dirk Renckhoff (‘Córdoba case’) (2018),
retrieved from <https://europeancopyrightsocietydotorg.files.wordpress.com/2018/10/ecs-
opinion-renckhoff-cordoba-final.pdf> accessed on 1 July 2019, para 8.
256
normative uncertainty. Julian Rivers puts it well when he writes that “the greater the
chance that one principle may be seriously infringed, the greater must be the chance
that another principle is realised to a high degree”.
31
This premise must also guide
judicial norm-making. Accordingly, if there is little uncertainty that extending the
scope of protection to a particular use will result in a serious interference with a
fundamental right, the court must be convinced, and adduce good reasons, why doing
so is nevertheless justified. As I noted in the introductory chapter, I have not intended
to argue where the balance must be struck as a matter of fairness, even if on some
occasions I have suggested a particular interpretation as – in my opinion –
appropriate. Instead, this dissertation focused on balancing as a process.
204. The CJEU: still searching for coherence. The CJEU had a significant
opportunity to lay down a coherent framework for the use of fundamental rights in
copyright adjudication in its three copyright judgements of 29 July 2019. In all three
cases it made abundantly clear that the interpretation, Member State implementation
and application of copyright law must strike a fair balance of rights and interests. A
clear and transparent approach, however, is still difficult to identify, which creates the
risk that “balance” will remain little more than a buzzword. Several questions remain,
while new ones have arisen. For instance, what does it mean that national courts must
balance exclusive rights and limitations and exceptions and give them an
interpretation which “fully adheres to the fundamental rights enshrined in the
Charter”? Can rights and limitations and exceptions as such be balanced? Or –
something which seems more appropriate – must the rights and interests which those
provisions aim to protect instead be balanced? Similarly, the suggestion that the
interpretation must fully adhere to fundamental rights seems trite and gives little
indication as to how to proceed in practice. What is the margin of appreciation for
Member States in this regard? And beyond the interpretation and application of
limitations and exceptions in light of fundamental rights, is there any room for
horizontal direct effect? And how do fundamental rights affect the arguably
discretionary nature of remedies? On a more specific level: when is a reproduction of
a phonogram “unrecognizable”? Does the same standard apply to reproductions of
other subject-matter, notably works? How to square the requirement that a quotation
“enter into a dialogue” with the finding that it need not be accompanied by any
original expression? Arguably, these requirements are reflective of an idea of the
balance that must be struck between divergent rights and interest, much like the
concept of new public before it. But like that concept, their introduction may lead to
more questions than they answer. Hopefully, on an inevitable following occasion, the
31
See, supra, n 37 in Chapter 3.
257
CJEU will lead by example in the creation of a more coherent and transparent
balancing methodology.
258
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TABLE OF CASES
European Court of Justice
Case 8/55 Fédération Charbonnière de Belgique v High Authority of the European
Coal and Steel Community ECLI:EU:C:1956:11
Case 56/64 Consten and Grundig v Commission of the EEC ECLI:EU:C:1966:41
Case 29/69 Stauder v Stadt Uhm ECLI:EU:C:1969:57
Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle
für Getreide und Futtermittel ECLI:EU:C:1970:114
Case 78/70 Deutsche Grammophon v Metro ECLI:EU:C:1971:59
Case 4/73 Nold KG v Commission ECLI:EU:C:1974:51
Case 44/79 Hauer v Land Rheinland-Pfalz ECLI:EU:C:1979:290
Case 62/79 Coditel v Ciné Vog ECLI:EU:C:1980:84
Case 5/80 Wachauf ECLI:EU:C:1989:321
Joined Cases 55 and 57/80 Musik-Vertrieb Membran v GEMA ECLI:EU:C:1981:10
Case 187/80 Merck v Stephar and Exler ECLI:EU:C:1981:180
Case 270/80 Polydor v Harlequin ECLI:EU:C:1982:43
Case 40/82 Commission v the United Kingdom ECLI:EU:C:1984:33
Case 402/85 Basset v SACEM ECLI:EU:C:1987:197
Case 158/86 Warner Brothers v Christiansen ECLI:EU:C:1988:242
Case 238/87 Volvo v Veng ECLI:EU:C:1988:477
Case 265/87 Schräder HS Kraftfutter ECLI:EU:C:1989:303
Case 341/87 EMI Electrola v Patricia ECLI:EU:C:1989:30
Case 395/87 Tournier ECLI:EU:C:1989:319
Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen
ECLI:EU:C:1991:65
Case C-177/90 Kühn ECLI:EU:C:1992:2
Case C-169/91 Council of the City of Stoke-on-Trent and Norwich City Council v. B
& Q Plc ECLI:EU:C:1992:519
Joined Cases C-241/91P and C-242/91P RTE and ITP v Commission (Magill)
ECLI:EU:C:1995:98
Joined Cases C-92/92 and C-326/92 Phil Collins and Others ECLI:EU:C:1993:847
Case C-280/93 Federal Republic of Germany v Council of the European Union
ECLI:EU:C:1994:367
Case C-306/93 SMW Winzersekt ECLI:EU:C:1994:407
Case C-22/94 Irish Farmers Association and Others ECLI:EU:C:1997:187
Case C-44/94 Fishermen’s Organizations ECLI:EU:C:1995:325
Case C-267/95 Merck v Primecrown ECLI:EU:C:1996:468
Case C-368/95 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v
Bauer Verlag ECLI:EU:C:1997:325
Case C-200/96 Metronome Musik v Music Point Hokamp ECLI:EU:C:1998:172
Case C-61/97 FDV v Laserdisken ECLI:EU:C:1998:422
Case C-60/98 Butterfly Music ECLI:EU:C:1999:333
Case C-293/98 Egeda ECLI:EU:C:2000:66
285
Case C-275/99 P Connolly v Commission ECLI:EU:C:2001:127
Case C-112/00 Schmidberger ECLI:EU:C:2003:333
Case C-245/00 SENA ECLI:EU:C:2003:68
Case C-418/01 IMS Health ECLI:EU:C:2004:257
Case C-476/01 Kapper ECLI:EU:C:2004:261
Case C-36/02 Omega ECLI:EU:C:2004:614
Case C-203/02 The British Horseracing Board and Others v William Hill
ECLI:EU:C:2004:695
Case C-444/02 Fixtures Marketing ECLI:EU:C:2004:697
Case C-220/03 ECB v Germany ECLI:EU:C:2005:748
Case C-89/04 Mediakabel ECLI:EU:C:2005:348
Case C-144/04 Mangold ECLI:EU:C:2005:709
Case C-479/04 Laserdisken ECLI:EU:C:2006:549
Case C-36/05 Commission v Spain ECLI:EU:C:2006:672
Case C-53/05 Commission v Portugal ECLI:EU:C:2006:448
Case C-306/05 SGAE v Rafael Hoteles ECLI:EU:C:2006:764
Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International
Foundation v Council and Commission ECLI:EU:C:2008:461
Case C-268/06 Impact ECLI:EU:C:2008:223
Case C-275/06 Promusicae ECLI:EU:C:2008:54
Case C-456/06 Peek & Cloppenburg ECLI:EU:C:2008:232
Case C-304/07 Directmedia Publishing ECLI:EU:C:2008:552
Case C- 545/07 Apis-Hristovich ECLI:EU:C:2009:132
Case C-555/07 Kücükdeveci ECLI:EU:C:2010:21
Case C-557/07 LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten
ECLI:EU:C:2009:107
Case C-5/08 Infopaq International ECLI:EU:C:2009:465
Case C-58/08 Vodafone and Others ECLI:EU:C:2010:321
Case C-73/08 Bressol and Others ECLI:EU:C:2010:181
Joined Cases C-403/08 and C-429/08 Football Association Premier League and
Others ECLI:EU:C:2011:631
Case C-467/08 Padawan ECLI:EU:C:2010:620
Case C-528/08 Commission v United Kingdom ECLI:EU:C:2010:429
Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert
ECLI:EU:C:2010:662
Case C-136/09 Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai
Optikoakoustikon Ergon ECLI:EU:C:2010:151
Case C-168/09 Flos ECLI:EU:C:2011:29
Case C-393/09 BSA ECLI:EU:C:2010:816
Case C-462/09 Stichting de Thuiskopie ECLI:EU:C:2011:397
Case C-70/10 Scarlet Extended v SABAM ECLI:EU:C:2011:771
Case C-135/10 SCF v Marco Del Corso ECLI:EU:C:2012:140
Case C-145/10 Painer ECLI:EU:C:2011:798
Case C-162/10 Phonographic Performance (Ireland) ECLI:EU:C:2012:141
286
Case C-277/10 Luksan ECLI:EU:C:2012:65
Case C-282/10 Dominguez ECLI:EU:C:2012:33
Case C-283/10 Circul Globus București ECLI:EU:C:2011:772
Case C-302/10 Infopaq II ECLI:EU:C:2012:16
Case C-360/10 SABAM v Netlog ECLI:EU:C:2012:85
Case C-406/10 SAS ECLI:EU:C:2012:259
Case C-461/10 Bonnier Audio and Others ECLI:EU:C:2012:219
Case C-510/10 DR and TV2 Danmark ECLI:EU:C:2012:244
Case C-544/10 Deutsches Weintor ECLI:EU:C:2012:526
Case C-604/10 Football Dataco and Others ECLI:EU:C:2012:115
Case C-5/11 Donner ECLI:EU:C:2012:370
Case C-128/11 Usedsoft ECLI:EU:C:2012:407
Case C-283/11 Sky Österreich ECLI:EU:C:2013:28
Case C-399/11 Melloni ECLI:EU:C:2013:107
Joined Cases C-457/11 & C-460/11 VG Wort and Others ECLI:EU:C:2013:426
Case C-426/11 Alemo-Herron and Others ECLI:EU:C:2013:521
Case C-521/11 Amazon.com International Sales and Others ECLI:EU:C:2013:515
Case C-607/11 ITV Broadcasting and Others v TVCatchup ECLI:EU:C:2013:147
Case C-101/12 Schaible ECLI:EU:C:2013:661
Case C-131/12 Google Spain and Google ECLI:EU:C:2014:317
Case C-176/12 Association de médiation sociale EU:C:2014:2
Case C-202/12 Innoweb ECLI:EU:C:2013:850
Joined Cases C-293/12 and C-594/12 Digital Rights Ireland ECLI:EU:C:2014:238
Case C-314/12 UPC Telekabel Wien ECLI:EU:C:2014:192
Case C-351/12 OSA ECLI:EU:C:2014:110
Case C-435/12 ACI Adam and Others ECLI:EU:C:2014:254
Case C-463/12 Copydan Båndkopi ECLI:EU:C:2015:144
Case C-466/12 Svensson and Others ECLI:EU:C:2014:76
Case C-98/13 Blomqvist ECLI:EU:C:2014:55
Case C-117/13 TU Darmstadt v Eugen Ulmer ECLI:EU:C:2014:2196
Case C-170/13 Huawei Technologies ECLI:EU:C:2015:477
Case C-201/13 Deckmyn and Vrijheidsfonds ECLI:EU:C:2014:2132
Case C-279/13 C More Entertainment ECLI:EU:C:2015:199
Case C-348/13 BestWater International ECLI:EU:C:2014:2315
Case C-360/13 Public Relations Consultants Association (PRCA)
ECLI:EU:C:2014:1195
Case C-419/13 Art & Allposters International v Pictoright ECLI:EU:C:2015:27
Case C-516/13 Dimensione Direct Sales and Labianca ECLI:EU:C:2015:315
Case C-572/13 Hewlett-Packard Belgium v Reprobel ECLI:EU:C:2015:750
Case C-580/13 Coty Germany ECLI:EU:C:2015:485
Case C-30/14 Ryanair ECLI:EU:C:2015:10
Case C-41/14 Christie’s France ECLI:EU:C:2015:119
Case C-157/14 Neptune Distribution ECLI:EU:C:2015:823
287
Case C-325/14 SBS Belgium ECLI:EU:C:2015:764
Case C-362/14 Maximillian Schrems v Data Protection Commissioner
ECLI:EU:C:2015:650
Case C-470/14 EGEDA and Others ECLI:EU:C:2016:418
Case C-484/14 McFadden ECLI:EU:C:2016:689
Case C-490/14 Verlag Esterbauer ECLI:EU:C:2015:735
Case C-547/14 Philip Morris Brands and Others ECLI:EU:C:2016:325
Opinion 3/15 Opinion pursuant to Article 218(11) TFEU (Marrakesh Treaty to
Facilitate Access to Published Works) ECLI:EU:C:2017:114
Case C-110/15 Microsoft Mobile Sales (formerly Nokia Italia) and Others
ECLI:EU:C:2016:717
Case C-117/15 Reha Training v GEMA ECLI:EU:C:2016:379
Case C-160/15 GS Media ECLI:EU:C:2016:644
Case C-166/15 Ranks and Vasilevičs ECLI:EU:C:2016:762
Case C-174/15 Vereniging Openbare Bibliotheken (VOB) ECLI:EU:C:2016:856
Case C-201/15 AGET Iraklis ECLI:EU:C:2016:972
Case C-203/15 Tele 2 Sverige ECLI:EU:C:2016:970
Case C-301/15 Soulier and Doke ECLI:EU:C:2016:878
Case C-527/15 Stichting Brein v Wullems (Filmspeler) ECLI:EU:C:2017:300
Case C-610/15 Stichting Brein v Ziggo and XS4ALL ECLI:EU:C:2017:456
Case C-641/15 Verwertungsgesellschaft Rundfunk ECLI:EU:C:2017:131
Case C-138/16 AKM v Zürs.net ECLI:EU:C:2017:218
Case C-265/16 VCAST v RTI ECLI:EU:C:2017:913
Case C-414/16 Egenberger ECLI:EU:C:2018:257
Joined Cases C-569/16 and C-570/16 Bauer ECLI:EU:C:2018:871
Case C-147/17 Bastei Lübbe ECLI:EU:C:2018:841
Case C-161/17 Renckhoff ECLI:EU:C:2018:634
Case C-310/17 Levola Hengelo ECLI:EU:C:2018:899
Case C-469/17 Funke Medien NRW (Afghanistan Papers) ECLI:EU:C:2019:623
Case C-476/17 Pelham and Others (Metall auf Metall) ECLI:EU:C:2019:624
Case C-516/17 Spiegel Online ECLI:EU:C:2019:625
Case C-683/17 Cofemel ECLI:EU:C:2019:721
Court of First Instance/General Court
Case T-69/89 RTE v Commission ECLI:EU:T:1991:39
Case T-76/89 ITP v Commission ECLI:EU:T:1991:41
Opinions of Advocates-General
Opinion of AG Mancini in Case 158/86 Warner Brothers v Christiansen
ECLI:EU:C:1988:31
Opinion of AG Gulmann in Joined Cases C-241/91 P and C-242/91 P Magill
ECLI:EU:C:1994:210
288
Opinion of AG Fennelly in Case C-267/95 Merck v Primecrown
ECLI:EU:C:1996:228
Opinion of AG Tesauro in Case C-200/96 Metronome Musik v Music Point Hokamp
ECLI:EU:C:1998:18
Opinion of AG La Pergola in Case C-61/97 FDV v Laserdisken ECLI:EU:C:1998:254
Opinion of AG La Pergola in Case C-293/98 Egeda ECLI:EU:C:1999:403
Opinion of AG Sharpston in Case C-479/04 Laserdisken ECLI:EU:C:2006:292
Opinion of AG Sharpston in Case C-306/05 SGAE v Rafael Hoteles
ECLI:EU:C:2006:479
Opinion of AG Sharpston in Case C-73/08 Bressol and Others ECLI:EU:C:2009:396
Opinion of AG Trstenjak in Case C-467/08 Padawan ECLI:EU:C:2010:264
Opinion of AG Bot in Case C-393/09 BSA ECLI:EU:C:2010:611
Opinion of AG Trstenjak in Case C-277/10 Luksan ECLI:EU:C:2011:545
Opinion of AG Bot in Case C-406/10 SAS ECLI:EU:C:2011:787
Opinion of AG Bot in Case C-128/11 Usedsoft ECLI:EU:C:2012:234
Opinion of AG Jääskinen in Case C-131/12 Google Spain and Google
ECLI:EU:C:2013:424
Opinion of AG Cruz Villalón in Case C-314/12 UPC Telekabel Wien
ECLI:EU:C:2013:781
Opinion of AG Jääskinen in Case C-117/13 TU Darmstadt v Eugen Ulmer
ECLI:EU:C:2014:1795
Opinion of AG Szpunar in Case C-484/14 McFadden ECLI:EU:C:2016:170
Opinion of AG Kokott in Case Case C-547/14 Philip Morris Brands and Others
ECLI:EU:C:2015:853
Opinion of AG Wathelet in Case C-160/15 GS Media ECLI:EU:C:2016:221
Opinion of AG Saugmandsgaard Øe in Case C-166/15 Ranks and Vasilevičs
ECLI:EU:C:2016:384
Opinion of AG Tanchev in Case C-214/16 King ECLI:EU:C:2017:439
Opinion of AG Wathelet in Case C-266/16 Western Sahara Compaign UK
ECLI:EU:C:2018:1
Opinion of AG Bot in Joined Cases C-569/16 and C-570/16 Bauer
ECLI:EU:C:2018:337
Opinion of AG Campos Sánchez-Bordona in Case C-161/17 Renckhoff
ECLI:EU:C:2018:279
Opinion of AG Szpunar in Case C-469/17 Funke Medien NRW (Afghanistan Papers)
ECLI:EU:C:2018:870
Opinion of AG Szpunar in Case C-476/17 Pelham and Others (Metall auf Metall)
ECLI:EU:C:2018:1002
Opinion of AG Szpunar in Case C-516/17 Spiegel Online ECLI:EU:C:2019:16
European Court of Human Rights
Decision of the European Court of Human Rights (Plenary), in the case "Relating to
certain aspects of the laws on the use of languages in education in Belgium"
v. Belgium (Merits), Appl. No. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63
and 2126/64, of 23 July 1968
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Decision of the European Court of Human Rights (Plenary), in the case of
Handyside v. United Kingdom, Appl. No. 5493/72, of 7 December 1976
Decision of the European Court of Human Rights (Plenary), in the case of Dudgeon
v. United Kingdom, Appl. No. 7525/76, of 22 October 1981
Decision of the European Court of Human Rights (Plenary), in the case of Sporrong
and Lönnroth v. Sweden, Appl. No. 7151/75 and 7152/75, of 23 September
1982
Decision of the European Court of Human Rights (Plenary), in the case of James
and Others v. The United Kingdom, Appl. No. 8793/79, of 21 February 1986
Decision of the European Court of Human Rights (Plenary), in the case of Rees v.
The United Kingdom, Appl. No. 9532/81, of 17 October 1986
Decision of the European Court of Human Rights (Chamber), in the case of Tre
Traktörer Aktiebolag v. Sweden, Appl. No. 10873/84, of 7 July 1989
Decision of the European Court of Human Rights (Chamber), in the case of Stran
Greek Refineries and Stratis Andreadis v. Greece, Appl. No. 13427/87, of 9
December 1994
Decision of the European Court of Human Rights, in the case of Hertel v.
Switzerland, Appl. no. 25181/94, of 25 Augustus 1998
Decision of the European Court of Human Rights (Grand Chamber), in the case of
Iatridis v. Greece, Appl. No. 31107/96, of 25 March 1999
Decision of the European Court of Human Rights (Grand Chamber), in the case of
Chassagnou and Others v. France, Appl. No. 25088/94, 28331/95 and
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Decision of the European Court of Human Rights (Second Section), in the case of
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Greece, Appl. No. 48679/99, of 3 May 2001
Decision of the European Court of Human Rights (Third Section), in the case of
Hatton and Others v. The United Kingdom, Appl. no. 36022/97, of 2 October
2001
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v. Italy, Appl. No. 32542/96, of 15 November 2002
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Hatton and Others v. The United Kingdom, Appl. no. 36022/97, of 8 July
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Melnychuk v. Ukraine, Appl. No. 28743/03, of 5 July 2005
Decision of the European Court of Human Rights (Grand Chamber), in the case of
Anheuser-Busch Inc. v. Portugal, Appl. No. 73049/01, of 11 January 2007
Decision of the European Court of Human Rights (Grand Chamber), in the case of
Evans v. The United Kingdom, Appl. No. 6339/05, of 10 April 2007
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Bălan v. Moldova, Appl. No. 19247/03, of 29 January 2008
Decision of the European Court of Human Rights (Third Section), in the case of SC
EDITURA ORIZONTURI SRL v. Romania, Appl. No. 15872/03, of 13 May
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Giuran v. Romania, Appl. No. 24360/04, of 21 June 2011
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S.H. and Others v. Austria, Appl. No. 57813/00, of 3 November 2011
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Mouvement Raëlien Suisse v. Switzerland, Appl. No. 16354/06, of 13 July
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Nada v. Switzerland, Appl. No. 10593/09, of 12 September 2012
Decision of the European Court of Human Rights (Fifth Section), in the case of
Ashby Donald and Others v. France, Appl. No. 36769/08, of 10 January
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Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland, Appl. No.
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European Commission of Human Rights
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WTO Dispute Settlement Body
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Austria
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Austrian Supreme Court, 13 July 2010, case 4 Ob 66/10z
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Belgium
Belgian Supreme Court, 3 September 1981, Coditel v Cine Vog Films, published in
GRUR Int. 1982, p. 448
Belgian Supreme Court (First Chamber), 25 September 2003, Index v Biblo,
published in Auteurs & Media 2004, p. 29
Canada
CCH Canadian Ltd. v. Law Soc'y of Upper Can., [2004] 1 S.C.R. 339
France
French Supreme Court (First Civil Chamber), 13 November 2003, Utrillo, published
in RIDA 200 (2004), p. 290
French Supreme Court (First Civil Chamber), 28 February 2006, Studio canal,
Universal Pictures vidéo France v. UFC Que Choisir, Stéphane X
French Supreme Court (First Civil Chamber), 15 May 2015, Klasen, English
translation in IIC 2016, p. 856
Paris Court of Appeal (First Chamber), 31 January 2012, No. 10/02898
Paris Court of Appeal (First Chamber), 18 September 2013, No. 12/02480
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Germany
German Federal Constitutional Court (First Senate), 7 July 1971, 1 BvR 765/66 –
Schulbuchprivileg, published in IIC 1972, p. 394
German Federal Constitutional Court (First Senate), 8 July 1971, 1 BvR 766/66 –
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German Federal Constitutional Court (First Senate), 25 October 1978, 1 BvR 352/71
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Le Corbusier-Möbel
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1145/11 – Kunstaustellung im Online-Archiv
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The Netherlands
Dutch Supreme Court, 30 October 1981, No. 11.739, Amstelveense Kabel I,
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al. v Thuiskopie & SONT
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Switzerland
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United States Supreme Court
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