The Road Not Taken – the CJEU Sheds Light on the Role of Fundamental Rights in the European Copyright Framework – a Case Note on the Pelham, Spiegel Online and Funke Medien Decisions

Abstract

On 29 July 2019, the Court of Justice of the European Union delivered its judgments in three eagerly awaited cases, Pelham, Spiegel Online and Funke Medien, which all relate to the relationship between copyright and (other) fundamental rights. Specifically, an issue arising in these cases is whether the EU copyright acquis allows for fundamental rights to be invoked as an autonomous ground for limiting a copyright, outside of the mechanisms incorporated in the Copyright Directive for that purpose. In its judgments, the Court rejects this possibility and instead locates the role for fundamental rights in the interpretation and implementation of the exceptions and limitations of the Directive. We argue that-while this may render satisfactory results in the great majority of casesin exceptional cases the CJEU's approach towards balancing copyrights and fundamental rights could be at odds with the approach of the European Court of Human Rights, which might reduce the legal certainty sought after by the CJEU. Lastly, we consider the implications of that potential tension for the judicial authorities and other actors within the domestic legal orders of the EU Member States.

Collateral Damage: Reuse in the Arts and the New Role of Quotation Provisions in Countries with Free Use Provisions After the ECJ’s Pelham, Funke Medien and Spiegel Online Judgments

“…Geiger and Izyumenko ( 2020 ), pp. 298–302; Quintais et al ( 2020 ); Snijders and van Deursen ( 2019 ), p. 1185; van Deursen and Snijders ( 2020 ), p. 1088; Senftleben ( 2020b ), pp. 764–765.…”

“… 169 Not going in the direction of a broadening of the InfoSoc quotation provision are, for example, European Copyright Society ( 2020 ); Quintais et al ( 2020 ); Snijders and van Deursen ( 2019 ). …”