University of Nottingham Commercial Law Centre

No new copyright exceptions to safeguard other fundamental rights and a balance that needs to be internalized inside the existing copyright exceptions

Professor Paul Torremans


Copyright and freedom of expression have always had a somewhat troublesome relationship. The main culprit is the exclusive right of reproduction that is at the hearth of copyright. The author or the owner of the copyright in a literary work has the exclusive right to reproduce the work or to authorize someone else to reproduce the work. That involves mainly the negative right to stop anyone from making unauthorized reproductions of the work. Any such unauthorized reproduction of the work will amount to copyright infringement.

Freedom of Expression

Freedom of expression on the other hand ideally also included the freedom to use the spoken or written words of someone else to express one’s own ideas. In other words, one may wish to copy the work of another person, but that would almost inevitably bring one into conflict with copyright and its exclusive reproduction right. There is however no reason to restrict freedom of expression to non-copied expression. That is even more so for the freedom of the press. The press has the task to comment on what takes place in society and that includes the written and spoken expressions of various actors in society. Reproducing some of that expression in the process is almost inevitable, but again risks entering into conflict with the right of reproduction at the hearth of copyright.

Internal controls

Copyright has traditionally argued that is has internalized that conflict with freedom of expression and the freedom of the press. It is indeed fair to say that the right of reproduction is not an absolute right. First of all, the exclusive right of reproduction will only be infringed if the alleged infringer has copies a substantial part of the copyright work. One remains therefore free to copy non-substantial parts of the work. But that is only a small step towards a solution that takes the sting out of the conflict between copyright and freedom of expression. There is therefore more to it. Copyright law contains a number of limitations and exceptions. When these apply a substantial part of the copyright work will have been copied, but in certain circumstances that will nevertheless not amount to copyright infringement. It would lead too far to discuss all these exceptions and limitations here, but one thinks of the right of quotation, fair use for the purposes of private study or the reporting of current events.

External controls (as well)

Many academics and others nevertheless argued over the years that all this was still insufficient to take the sting out of the conflict. Their argument also saw external restrictions and balancing acts imposed on copyright. They relied heavily on the strong status as a primary fundamental right of the right of freedom of expression. That right to freedom of expression should be respected and if need be that meant in the appropriate circumstances that copyright had to give way, even beyond the existing limitations and exceptions.

Balancing Fundamental Rights

All of this needs also to be placed against the backdrop of the Charter of Fundamental Right of the European Union.  Not only the right of freedom of expression is given the status of a fundamental right, intellectual property is included in the property right with status as a fundamental right through the means of article 17(2) of the Charter. And evidently copyright is one of the intellectual property rights and therefore enjoys the status of a fundamental right. The Charter does accept that there can be a clash between different fundamental rights and it addresses that problem by setting out the concept of a balancing act. Each fundamental right will be respected to the fullest possible extent, but nothing is absolute and each right might potentially have to give some way.

The CJEU goes for copyright internalization

Where does this leave the relationship between copyright and freedom of expression? The question arose recently in two cases that went all the way up to the Court of Justice of the European Union and that were decided by the Grand Chamber on 29th July 2019. Case C-469/17 Funke Medien NRW GmbH v Bundesrepublik Deutschland ECLI:EU:C:2019:623 and case c-516/17 Spiegel Online Gmbh v Volker Beck ECLI:EU:C:2019:625 are clearly cases whose impact will be debated for some time to come.

The question that arose in these case was exactly whether the external restrictions have a place in relation to the balancing act between copyright on the one hand and other fundamental rights on the other hand. The Court addressed the question whether the interests of the protection of other fundamental rights can justify exceptions or limitations to the exclusive rights that make up copyright beyond the exceptions and limitations that are explicitly contained in EU copyright law. A positive answer would have left room for the external aspect of the balancing act. The Court did however rule out such an answer. According to the court the answer is negative and there is no room for additional exceptions and limitations to protect the interests of other fundamental rights. That is not to say that the court does not attach the highest importance to the balancing act between the various fundamental rights that was set  up in the Charter of Fundamental Rights. But that has to be handled within the framework of the existing copyright exceptions and limitations. These exceptions and limitations have to be interpreted in a way that guarantees the interests of the other fundamental rights and strikes a balance between copyright on the one hand and the other fundamental right on the other hand. Everything is internalized inside copyright law.

The way ahead

External checks and balances are therefore a thing of the past and one will have to work with the existing copyright exceptions and limitations. But the balance will still have to be struck and it remains to be seen how flexible national courts will be when they interpret these exceptions and limitations in order to strike the balance. Working all that out in a harmonious way will no doubt be a challenge. The direction has been set, but the debate has only just started. The policy decision to internalize matters inside copyright has been made by the Grand Chamber, no doubt also in an attempt to streamline matters and to keep control, but its implementation in the day to day practice of copyright has only just started.

October 2019

University of Nottingham Commercial Law Centre

University of Nottingham
University Park
Nottingham, NG7 2RD