From internal to external balancing, and back? Copyright limitations and fundamental rights in the digital environment
| Autor | Christophe Geiger/Elena Izyumenko |
| Cargo del Autor | Professor of Law Luiss Guido Carli University (Rome)/Case-processing Lawyer European Court of Human Rights |
| Páginas | 103-135 |
FROM INTERNAL TO EXTERNAL BALANCING,
AND BACK? COPYRIGHT LIMITATIONS AND
FUNDAMENTAL RIGHTS IN THE DIGITAL
ENVIRONMENT 1
C G
Professor of Law
Luiss Guido Carli University (Rome)
E I 2
Case-processing Lawyer
European Court of Human Rights
Sumary: I. INTRODUCTION. II. THE CONSTITUTIONALIZATION OF IP LAW
THROUGH THE INTERNALIZATION OF THE FUNDAMENTAL RIGHTS
BALANCING. 1. Copyright’s own (internal) mechanisms as sufficient safe-
ty valves for balancing with freedom of expression? 2. A liberal interpreta-
tion of copyright’s internal safety valves in the light of freedom of expres-
1 This chapter is an updated version of the article «The Constitutionalization of
Intellectual Property law in the EU and the Funke Medien, Pelham and Spiegel Online decisions of
the CJEU: Progress, but still some way to go!», previously published in the International Review
of Intellectual Property and Competition Law (IIC) 2020, Vol. 51, No. 3, 282.
2 Christophe Geiger is a Professor of Law at the Luiss Guido Carli University, Rome and
Spangenberg Fellow in Law & Technology at the Spangenberg Center for Law, Technology &
the Arts, Case Western Reserve University School of Law (Cleveland, US); Dr. Elena Izyumenko
is a Case-processing Lawyer at the European Court of Human Rights, Council of Europe,
Strasbourg. The views, thoughts, and opinions expressed in this text belong solely to the au-
thors, and not necessarily to the authors’ employer, organization, committee or other group or
individual.
104 Christophe Geiger / Elena Izyumenko
sion. 3. A considerable room for manoeuvre left to the national courts. III.
THE VEHICLE OF CONSTITUTIONALIZATION: RELIANCE ON THE
FREEDOM OF EXPRESSION BALANCING CRITERIA, THE IMPORTANT
ROLE OF THE ECTHR AND THE RECOGNITION OF USER RIGHTS.
1. The growing role of the freedom of expression balancing factors. 2.
Unequivocal recognition of user rights and the rise of “digital constitutiona-
lism”. IV. AN INCOMPLETE CONSTITUTIONALIZATION: REFUSAL OF
THE CJEU TO ALLOW EXTERNAL FUNDAMENTAL RIGHTS REVIEW
OF COPYRIGHT NORMS. 1. Does it make a difference whether freedom
of expression is allowed for an external application to EU copyright? 2. On
the CJEU outlawing German “free use” (in Pelham) and on the utility of the
open-ended copyright exception on the EU level. V. CONCLUSION.
ABSTRACT
In the first part of the new millennium, the rise of the use of fundamental
rights in shaping intellectual property norms has led one of the authors of this
article to predict that this movement will be “constitutionalizing” intellectual
property law. The digital environment has brought a new relevance to the dis-
cussion under the heading of “digital constitutionalism”, as the activities of
powerful private entities can – now even more – have strong consequences on
the exercise of the constitutional rights of individuals. More than a decade and
a half later, the influence of fundamental rights in particular on the scope and
limitations of intellectual property in the digital environment has never been
more important. This is illustrated by three seminal copyright decisions that
deal with the relationship between copyright and freedom of expression (in-
cluding freedom of the media, information, and freedom of artistic creativity)
in the Funke Medien, Pelham and Spiegel Online cases that were delivered in July
2019 by the Court of Justice of the European Union. This chapter – which pre-
sents an updated and modified version of an article published by the authors
in 2020 – puts these decisions into perspective by discussing several points that
make these decisions to stand out in the European judicial practice on copyright
and fundamental rights. First, these decisions demonstrate that freedom of ex-
pression and its balancing factors play a crucial role in shaping the contours of
exclusive rights, starting from the definition of copyright law’s subject-matter
and extending to the right of reproduction, as well as, most importantly – to
copyright limitations and exceptions. In essence, the CJEU takes a quite libe-
ral position towards the national courts’ interpretation of existing copyright
norms in the light of the freedom of expression requirements. The CJEU goes
even as far as to term the Article 5 InfoSoc exceptions not as “exceptions” as
such but as self-sufficient rights of users of copyright-protected subject-matter.
From internal to external balancing, and back? 105
It is also notable that, in applying freedom of expression to EU copyright, the
CJEU relies on the case law of yet another supranational European court – the
European Court of Human Rights. By so doing, the Court of Justice manifests
eagerness to engage in a “dialogue” with the principal human rights tribunal
in Europe in order to establish guiding principles for EU copyright law infor-
med by freedom of expression. Such a liberal, “freedom of expression-driven”
approach of the CJEU to the interpretation of EU copyright aims at the same
results as those that could be achieved by applying external and/or open-en-
ded copyright exceptions. Nevertheless, the Luxemburg Court indicates in
Funke Medien, Pelham and Spiegel Online that an externally-introduced flexibi-
lity (by means of complementing an already existing in EU list of exceptions)
could be harmful to copyright harmonisation and legal certainty. Therefore,
despite being more favourable towards shaping EU copyright by fundamental
rights, the CJEU does not go all the way, since it considers in quite categorical
terms that an external freedom of expression exception beyond an exhaustive
list of limitations of Article 5 InfoSoc is clearly inacceptable. According to the
Court, copyright’s own internal mechanisms present sufficient safety valves for
balancing with freedom of expression. Such position of the CJEU relies on
the fact that the legislator has anticipated all the potential conflicts between
copyright and higher ranking norms such as fundamental rights. This posi-
tion might, however, be incompatible with the EU legal order. Thus, despite
a visible progress in flexibilizing copyright norms via their interpretation “in
the light of” fundamental rights, some further steps will still need to be taken
in the future to make the “constitutionalization” of IP law a complete reality in
the EU. The current uprising of a new theoretical framework for fundamental
rights adapted to the digital environment (the so-called “digital constitutiona-
lism”) might be of help in this process.
I. INTRODUCTION
In the first part of the new millennium, the rise of the use of fundamental
rights in shaping intellectual property norms has led one of the authors of
this article to predict that this movement will be “constitutionalizing” IP law 3.
3 C. G, «“Constitutionalizing” Intellectual Property Law? The Influence of
Fundamental Rights on Intellectual Property in Europe», 37(4) IIC 371 (2006); «The
Constitutional Dimension of Intellectual Property», in: P. Torremans (ed.), Intellectual Property
and Human Rights (Austin/ Boston/ Chicago/ New York, The Netherlands, Kluwer Law
International, 2008), p. 101; «Fundamental Rights as Common Principles of European (and
International) Intellectual Property Law», in: A. Ohly (ed.), Common Principles of European
Intellectual Property Law (Mohr Siebeck, Tübingen, 2012), p. 223.
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