From Internal to External Balancing, and Back? Copyright Limitations and Fundamental Rights in the Digital Environment

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 discussion 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 (including 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 presents 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 expression 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 liberal 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. 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 informed 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-ended copyright exceptions. Nevertheless, the Luxemburg Court indicates in Funke Medien, Pelham and Spiegel Online that an externally-introduced flexibility (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 position 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 constitutionalism”) might be of help in this process.