The CJEU, EU Fundamental Rights and the Limitations of Copyright

Abstract

It is now almost 20 years since the Charter of Fundamental Rights of the European Union was signed (hereinafter the ‘Charter’). Its importance as a further primary text has meanwhile regularly come into the focus of the CJEU. In the three recent cases Funke Medien NRW, Spiegel Online and Pelham, the CJEU had the opportunity to clarify the importance of the Charter’s fundamental rights regarding the limitations and exceptions to the exclusive rights of copyright. While clarifying certain issues, the CJEU, however, also raised some intricate issues with potentially far-reaching consequences. The three questions raised by the German Federal Supreme Court in this regard were: (1) do the provisions of EU law on copyright exceptions or limitations allow any discretion in terms of implementation in national law; (2) in what manner are the fundamental rights of the Charter to be taken into account when determining the scope of the exceptions or limitations provided for in the InfoSoc Directive; and (3) can the fundamental rights justify exceptions or limitations to the exclusive rights, beyond the exceptions or limitations provided for in Art. 5(3) of the InfoSoc Directive? The CJEU answered the first question with a general ‘yes’, and the third one with a clear ‘no’ and explained how fundamental rights should be taken into account regarding the second question. At the same time, this raises the question of the scope left to the Member States to apply their own fundamental constitutional rights. In short, the question is about locating and adjusting the protection of fundamental rights in the European multi-level system.