Increasing importance of the fundamental freedoms’ framework, broad discretion for Member States and problems ahead

Assuming that the preceding arguments have been accepted — i.e., that the developing EU legal framework and CJEU jurisprudence have made it increasingly necessary to undertake human rights considerations whenever EU copyright exceptions are applied — it will be apparent that national courts retain significant discretion. When an EU Member State implements an InfoSoc exception into national copyright law, this must be done in such a way as to reach a fair balance between fundamental freedoms of relevant stakeholders. Equally, when a national authority is tasked with resolving a copyright dispute, the objectives ot both the InfoSoc Directive and the fundamental rights framework must be respected when deciding whether the defendant’s use is covered by an exception.

Yet, the InfoSoc Directive does not harmonize all copyright exceptions, so the national margin of discretion remains impervious in respect of unharmonized exceptions.[1] For example, while the CJEU acted keenly to provide a harmonized definition of parody, it did not fully harmonize concepts of quotation or news reporting exceptions.[2] Additionally, national courts enjoy discretion in specific cases when deciding where the fair balance lies between property rights and the competing fundamental rights. One might wonder, then, how the harmonization goal could be achieved in practice. Even though national courts might recognize the CJEU’s clear instruction to scrutinize fundamental rights, some judges may be reticent to do so, for fear of venturing into the legislator’s domain. Not only may courts remain timid in their balancing of fundamental rights, but they might also lack the experience required to do so.

A recent parody case before the Belgian courts exemplify the issues which can arise from the proportionality test. The case involved the unauthorized use ot a popular children’s cartoon character Maya the Bee. Activist organization Greenpeace had produced a campaign ad featuring Maya promoting cigarette smoking to children. The campaign was intended to draw attention to the licensing of the Maya character to promote processed meat products to children: products which allegedly have similarly serious health risks (colorectal carcinoma, heart diseases, Type-2 diabetes)'17 as tobacco smoking. Studio 100, the rightholders, commenced proceedings for copyright infringement, arguing ‘the comparison between smoking and eating meat is bizarre and especially, disproportionate’,48 while Greenpeace argued that the parody exception provided them with a defense.'” Relying upon Deckmyn, the Belgian tribunal found that Greenpeace’s use of Maya was humorous and there would be no contusion between its use and the original: the twofold criterion for ‘parody’ was satisfied. Nevertheless, the Belgian judge concluded that the defense did not apply because the harm to the claimant’s (property) rights was disproportionately high. Here, the tribunal noted that, while advertising of tobacco-related products was banned, it was perfect legal to advertise processed meat products. While both carry carcinogenic risks, the risk from processed meat was lower. Greenpeace had also disseminated its campaign using mass media and internet, meaning that it could be seen by adults and children alike. The latter were unlikely to understand the intended message but would find the video shocking. In sum, the balance was tipped in the copyright owner’s favor.

There is a number of aspects of the tribunal’s reasoning which are deeply troubling. First, Greenpeace’s use in the campaign was not a commercial expression (e.g., an advert for a competing product) but rather a public interest one. The ECtHR has confirmed that national courts enjoy a broader margin of appreciation in respect ot an expression in the public interest (i.e., public health, environment, etc.)."’" Second, the right ot freedom of expression extends to those expressions which may ‘shock, disturb or offend’,101 whereas the Belgian tribunal seems to have placed some reliance upon this aspect to restrict Greenpeace’s exercise of free expression, even though it did acknowledge that a humorous parody was involved. This raises eyebrows, considering that it is the subject of settled ECtHR case law."12 Rather, it is evident from Deckmyn that, when copyright is in conflict with freedom of expression (or another protected right), the national court must consider all the relevant facts in order to reach a fair balance between the two. Here, in is doubtful that curbing debate of the issues which Greenpeace had sought to raise was necessary. Finally, the tribunal placed weight on the fact that Greenpeace had reproduced the Maya character without any attempt at a [3] [4] [5] [6] [7] [8]

transformation. As it had already determined that the use would be recognized as a parody (when audience confusion might be pertinent), it is arguably that the degree of reproduction should not then be taken into consideration at the balancing stage. This raises serious doubts that a fair balance was struck between respective rights and interests in this scenario.

Despite being undeniably tricky, case law can already provide some guidance concerning how competing rights should be balanced. In Deckniyn, the CJEU identified the content of the defendant’s expression as an important factor.1113 It is likely to be fair to restrict freedom of expression and favor the copyright holder it the protected work is used in an expression, which seeks to incite discrimination or another message contrary to human rights principles. Funke Medien, Pellmnt and Spiegel Online clarify that the nature of the expression is relevant, since national courts have less margin to curtail political or artistic expressions, which generally promote the public interest, than in the case of a purely commercial expression.[9] [10] While these are all factors which match ECtHR jurisprudence, the CJEU is also developing its own factors. In Pelham, the Court considered the extent to which the defendant’s use encroached upon the exclusive rights which stem from copyright.[11] [12] This is a factor which the ECtHR has considered in cases balancing tangible property and freedom of expression, but not (yet) in copyright-related cases.

In Appleby v. the UK,'0b the ECtHR had to review whether a state could restrict freedom of expression of individuals distributing, amongst others, leaflets against the future development of a commercial complex on private property. The court recalled that freedom of expression does not automatically bestow the right to invade someone’s own private property. However, there might be a positive obligation on States to protect the exercise of Convention rights by regulating property rights.[13] In this case, the ECtHR noted that the defendant had alternative ways to share their views, indicating that they could have sought permission from property owners rather than impinging upon others’ property.[14]"* Whilst this might be helpful for some copyright cases, it is necessary to be cautious before applying it wholesale, not least because enactment of the parody exception recognizes that copyright licenses are not generally available tor such uses.[15]

A further problem which should be flagged is the difficulty to preserve uses covered by copyright exceptions in the online environment. The InfoSoc Directive and CDSMD both identify the requirement of a fair balance between freedom of expression and copyright online.[16]" In the CDSMD, the EU legislator has acknowledged the need to balance the rights of copyright owners and freedom of expression, and indicates that the exceptions for ‘quotation, criticism, review’, and tor the purpose of‘caricature, parody or pastiche’ must be safeguarded within the EU.[17] This step is to be applauded. While all these exceptions were optional under the InfoSoc Directive, the CDSMD now makes them mandatory.

Yet there is a real risk that, if provisions are badly transposed, the implementation of this legislation into national copyright law could actually be detrimental to the protection of the rights underpinning these important exceptions. Article 17 CDSMD raises particular concern. This provision requires online sharing platforms to use best efforts to use only licensed content.112 Otherwise, platforms must adopt a mechanism to filter all uploaded content, so that unlicensed content is made unavailable to users, and/or disable or remove specific works if notified by the copyright owner." ’ It seems self-evident that any automated filtering, especially if this occurs before material can be uploaded, would jeopardize legitimate reliance upon these now-mandatory copyright exceptions. Consequently, it is evitable that filtering will constrain users’ legitimate exercise of freedom of expression given that current technology focuses on similarities rather than being able to understand a use made in a specific context."4

In sum, implementation of Article 17 CDSMD presents very real practical difficulties. This is exacerbated by remaining issues concerning the interpretation of exceptions themselves. Despite the CJEU’s existing guidance on the meaning of terms, including ‘quotation’ and ‘parody’, disagreements at the margins still persist."’ Further guidance from the CJEU is warranted to ensure that national courts are able to strike a fair balance between all fundamental rights at stake in the copyright disputes which they are required to resolve, in both the on- and off-line worlds.

  • [1] CJEU, judgments in Funke Medien, n. 13, 42-43; Spiegel Online, n. 13, 27-28.
  • [2] Deckmyn, n. 42, 15-17; contra Funke Medien, n. 13, 42-43; Spiegel Online, n. 13, 27—28.
  • [3] See the statements of the World Health Organization in 2015: (last accessed 14 August2020).
  • [4] Author’s own translation.
  • [5] Unpublished. D. Voorhoof, ‘Studio 100 vs Greenpeace: wordt het auteursrecht misbruikt?’ (14/09/2019)available at accessed 14 August 2020).
  • [6] E.g., ECtHR (Plenary), 26/04/1979, Sunday Times v the UK, Appl. nr. 6538/74, 65: ECtHR, 22/2/1989, Barfed v. Denmark, Appl. nr. 11508/85, 29-32; ECtHR (Grand Chamber), 27/06/2017, Satakiuman MarkkinaporssiOy and Satamcdia Oy v. Finland, Appl. nr. 931/13,167.
  • [7] E.g., Sunday Times, n. 99 repeated in Ashby, [31); ECtHR (Fifth Section), 8/11/2012, Peta Deutschland v. Germany, Appl. nr. 43481/09, 46; ECtHR (First Section), 25/01/2007, Vereinigung Bildender Kiinstler v. Austria,Appl. nr. 68354/01, 26; ECtHR, 16/3/2000, Ozgiir Giindcm n. Turkey, Appl. nr. 23144/93, 43; ECtHR,23/4/1992, Castells v. Spain, Appl. nr. 11798/85, 42; ECtHR, 23/5/1991, Oberschlick v. Austria, Appl. nr.11662/85, 57; ECtHR, 7/12/1976, Handyside v. the UK, Appl. nr. 5493/72, 49.
  • [8] E.g., ECtHR (Fifth Section), 2/10/2008, Leroy v France, Appl. nr. 36109/03; Vereinigung, n. 100.
  • [9] Deckmyn, n. 42, 30-31.
  • [10] Funke Medien, n. 13, 74; Spiegel Online, n. 13, 58, citing Ashhy Donald, n. 31, 39; Pelham, n. 42, 35.
  • [11] Pelham, n. 42, 38. Although some argue this factor is also to be found in the jurisprudence of the ECtHR. C.Geiger and E. Izyumenko, ‘Towards a European “Fair Use” Grounded in Freedom of Expression’ (2019) 35(1)American University International Law Review, 45.
  • [12] ECtHR, Appleby and Others v. The United Kingdom (6/5/2003), App. nr.44306/98, 47.
  • [13] Ibid.
  • [14] Ibid., 48.
  • [15] Jacques, n.19, 125. However, the ECtHR case law is particularly rich and other factors can be extrapolatedsuch as the form of the expression, the standing of the speaker, the context of the expression. Jacques, n. 19,142-151 as well as 211-224.
  • [16] Recitals 3 and 31 InfoSoc Directive; Recitals 2 & 3 CDSMD; Spiegel Online, n. 13, 42.
  • [17] Article 17.7 CDSMD.
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