The Balance between Exclusive and Fundamental Rights in EU Copyright Law

In this essay. I will look at the approach adopted by the Court of Justice of The European Union (CJEU) that Advocat General (AG) Szpunar has identified. in respect to the limits and exceptions to the exclusive rights of the right holder and fundamental rights as set down in the European Charter of Human Rights (ECHR). I will discuss firstly. why it is the EU legislature’s prerogative to balance these two sets of rights Secondly. I will discuss the courts role with respect of infringements of fundamental rights.

in particular freedom of expression. Then I will conclude with a summary of the critical discussion EU Legislature’s Prerogative In recent cases it has been clarified that the legislatures has already accounted for certain limits and exceptions that can apply to the exclusive rights of a rightsholder with Directive 2001/29/EC ‘, Furthermore, the CJEU have on several occasions shown its reluctance to trod on the legislature’s toes as it were.

In adding to such a list.

Firstly. AG Szpunar put fomard the accepted idea that the law is synonymous with the general will of the public” and as such it is the for the Legislature — the voice of the people — to define the law In this case, the CJEU was clear that although there is a degree of flexibility to how Member States incorporated the directive. the obligations in the Directive are binding. That is, States cannot deviate from the closed list of limits and exceptions set out by the directive‘, Not only from the harmonization goal of the Directive.

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but from a legal clarity point of view‘. this distinction is necessary and welcomed: if the Directive could be undemtined by Member States differing application. the ability of copyright law to function across the EU would be in jeopardy. as there would be differing sets of rules for each state in which an Author’s work was published, AG Szpunar’s pragmatic approach to respecting the legislature’s choices originates in an earlier cases.

Here the question of freedom of expression , in the context of phonogram sampling , being used as a limit upon the exclusive right of reproduction was posed‘h This case is indicating a quite firm approach from the CJEU, who suggested that addition to the exhaustive list. may be possible, But it is entirely at the discretion of the legislator to make such an addition“. It’s necessary that this be the way of things. EU copyright law has taken into account the various rights attd interests which can conflict with one another i.e. Freedom of the Arts and Creative Expression“.Limils and exceptions have been crafted with the purpose of striking a fair balance between these various rights. As such this balance should be maintained if a new exception is to be introduced. which would not have been the case here if the CJEU had created a purported freedom of the arts’ exception”.

Furthermore. this balancing issue, is one of a general public interest. As such it falls within the scope of the legislature. It is crucial for the harmonization and effectiveness of European Union Law that the introduction of the fundamental rights as a supplemental exception to EU copyright law be left to the legislator”. If tlte CJEU were to overstep, in the sense that it would introduce the freedom of expression as a further limit on copyright, Courts role in the balancing act — Freedom of Expression Court is required to intervene only whete there is a gross infringement of a fundamental right. In such instances, the Courts look to reassert the fragile balance between the two” and ensure that there is no undue expansion of limits and exceptions which may cause disrepair to the hamionization and efficacy of EU law as a whole”. In Spiegel” .Whete the fundamental right of freedom of expression was limited within the context of the author’s fundamental right to property“. The role of Coun generally is clear here.

As I said, to maintain the delicate balance. in instances where there is an overstep by a party Freedom of expression is such an integral party of society that it may only be limited in such a way that does not quantify an abuse or injustice, when it is within the limits of the law as defined by the Directive”. The Courts role can be further clarified with the discussion in Cory Germany”. Here the CJEU echoed what AG Szpunar said in Spit-gel”. where there is a serious infringement of a fundamental right of the Chaner”‘, the Court is required to act such that the fair balance between fundamental rights be reassertedl“. As a counterpoint. we see in Deckmyn“ .that the fair balance of rights was said to take place in light of all circumstances present in a case‘”. This directly concerned the parody defence to infringement, but it also points to a more flexible approach than we have previously seen from the Court, Yet in Pelham and Haas. it was insisted that the prescribed limits and exceptions already strike this fair balance.

As such what need is there to assess the circumstances with which they arise in? Is it not clear cut that if a limit or exception is not imposed in line with the Directive“ then it is an infringement of the copyright?“ In Funke Medien“, we saw a more reserved stance, which pointed to the possibility that copyright may have to yield to the overriding interesting of a fundamental right or freedom of the ECHR.“’. This mirrors the sentiments in an ECtHR ruling, where the closed system of article 5″ was brought under scrutiny“. However. it has been reiterated by the CJEU that it does not subscribe to such a theory of external limits and exceptions. Showing a clear preference for the court to keep their role to one of dealing with infringement of essential content of fundamental rights and not to administer the balancing act of the legislature. Conclusion AG Szpunar set out a pragmatic approach in Spiegel on how the CJEU should interact with the lnfosoc Directive Upon discussion and examination of the case law of the CJEU. it is clear that the respect for the legislature is a ubiquitous present attd that the Couns have limited themselves to overstepping and have as such ensured the integrity of copyright law, while simultaneously ensuring any serious infringement is made right. through rebalancing of the rights in question