Fundamental rights as external constraints on copyright law: horizontal effect of the EU Charter after Funke Medien and Spiegel Online

Abstract

The judgements by the CJEU in Funke Medien and Spiegel Online have been widely construed as rejecting the idea of fundamental rights as external limits to copyright law. At first glance, this appears to imply that the proper balance between the affected (fundamental) rights and interests is exclusively struck by copyright law itself, where possible interpreted in light of those rights and interests. To the extent that an accommodating interpretation is not possible, one might fear a conflict with the fundamental rights commitments of the Member States, notably under the ECHR. I suggest that the rulings in Funke Medien and Spiegel Online must be understood narrowly. Firstly, they do not necessarily imply an outright rejection of horizontal direct effect. Secondly and arguably more importantly, those decisions did not concern the question of remedies. The acquis communautaire has established a flexible approach to remedies which allows remedies to be refused. Consequently, disproportionate interferences with fundamental rights can be largely avoided. Although Member States likely possess a wide margin of appreciation in tailoring remedies to the circumstances of the case, compliance with the EU Charter of Fundamental Rights demands that national courts in some cases refuse to enforce copyright. This article includes some suggestions as to the boundaries the Charter might set. Finally, it is argued that In Member States where national law does not provide courts with any discretion in terms of remedies, for instance by making the grant of a (final) injunction automatic, the offending provision of national law must be disapplied in order to ensure that national courts can strike a fair balance.