The Balance between Exclusive and Fundamental Rights in EU Copyright Law

Topics: Copyright Law

Introduction In this essay, I will look at the approach adopted by the Court of Justice of The European Union (CJEU) that Advocate General (AG) Szpunar has identified, concerning 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 court’s role concerning 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 have 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 has 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 forward the accepted idea that the law is synonymous with the general will of the public and as such, it is 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 in how the 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 but a legal clarity point of view, this distinction is necessary and welcomed: if the Directive could be undermined by the MemStates’ates differing application, the ability of copyright law to function across the EU would be in jeopardy, as there would be different sets of rules for each state in which an Author’s work was published.

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AG Szpunar’s pragmatic approach to respecting the legislature’s choices originates in an earlier case 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. 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”.

This must be the way of things. EU copyright law has taken into account the various rights and interests which can conflict with one another i.e. Freedom of the Arts and Creative Expression. Limits and exceptions have been crafted to strike 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 purported freedom of the exception of the art.

Furthermore, this balancing issue is one of the 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 legislators. If the 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 – The freedom of Expression Court is required to intervene only where there is a gross infringement of a fundamental right. In such instances, the Courts look to reassert the fragile balance between the two12 and ensure that there is no undue expansion of limits and exceptions which may cause disrepair to the harmonization and efficacy of EU law as a whole”.

In Spiegel”, Where the fundamental right of freedom of expression was limited within the context of the author’s fundamental right to property. The role of the Court 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 part 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 Court’s role can be further clarified with the discussion in Coty Germany. Here the CJEU echoed what AG Szpunar said in Spiegel”, where there is a serious infringement of a fundamental right of the Charter, the Court is required to act such that the fair balance between fundamental rights be reasserted20.

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 parodydefensee 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 interest of a fundamental right or freedom of the ECHR.2. This mirrors the sentiments in an ECtHR ruling, where the closed system of article 5 was brought under scrutiny28. 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 Infosec Directive. Upon discussion and examination of the case law of the CJEU, it is clear that the respect for the legislature is a ubiquitous presence and that the Courts 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.

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The Balance between Exclusive and Fundamental Rights in EU Copyright Law. (2022, Jun 14). Retrieved from

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