Designing a Freedom of Expression-Compliant Framework for Moral Rights in the EU: Challenges and Proposals

In the discussions on copyright and freedom of expression, it is common to focus on copyright’s economic rights and their potential to restrict the users’ freedom of artistic creativity, freedom to express criticism or freedom to receive and impart information. By contrast, moral rights of the authors (such as the right of divulgation, the right of attribution and the right of integrity) have been much less explored with regard to their potential conflict with creators’ and users’ freedom of expression. Without doubts, moral rights are at the core of copyright protection, in particular in systems following the so-called “civil law” tradition. Their protection represents an important interest that can claim fundamental rights foundations. On a more general level, moral rights can emanate from the need to protect the authors’ dignity and personality – the values underlying a number of fundamental rights in the human rights treaties. More specifically, certain scholars allocate the interest in the protection of the authors’ moral rights in the right to privacy and personal integrity, others – in the so-called “negative” aspect of the right to freedom of expression – the right not to speak and to be free from unwanted associations. Either one way or another, however, the interest of the author in the protection of her personality via moral rights should not be accorded absolute and hence unqualified protection. In particular, competing freedom of expression interests of users (including derivative creators) must not be neglected as a result of such protection. The argument of this chapter is that, despite a relative lack of attention towards the effects of moral rights on the freedom of expression of others, moral rights, if applied in an unlimited way, might impede users’ freedoms even to a greater extent than economic rights of copyright holders. The problem thus deserves further scrutiny and solutions need to be advanced to guarantee that uses of copyright-protected works that are essential for a democratic society are not unduly hindered by moral rights. The discussion proceeds in four parts. The first part outlines the unharmonized status of the moral rights protection in the EU and ambiguities as to the availability in their context of the so-called “exceptions” to the exclusive rights of copyright holders. The chapter then turns to the discussion of the recent dynamics in the case law of the CJEU that are argued to have significantly reduced users’ freedoms against the claims of the moral rights holders. Part two discusses the Deckmyn judgment rendered by the Court of Justice in 2014 in which the Court pronounced on inapplicability of copyright exceptions when authors claim violation of their quasi-integrity right. Part three proceeds towards analyzing the implications of the 2019 triad of Funke Medien, Pelham and Spiegel Online judgments by the CJEU where the Court of Justice expressly excluded applicability of any external freedom of expression limitation on top of the enumerated exceptions already available to copyright users in the EU. It is argued that a combined reading of Deckmyn on the one hand and Funke Medien, Pelham and Spiegel Online on the other might result in a quite restrictive approach to freedom of expression of copyright users in the EU wherein users can rely on neither copyright exceptions nor freedom of expression as an external argument to justify the free speech use of the works protected by moral rights. Part four, hence, advances a number of alternative proposals (capable of functioning cumulatively) aimed at providing a more proportionate approach towards the protection of both the right of original creators and those of secondary users in the moral rights context, helping to design a freedom of expression-compliant legal framework for moral rights in the EU.