Finding Comfort between a Rock and a Hard Place Advocate General Szpunar on striking the balance in copyright law
By Justin Jütte
In three Opinions that address the balance between copyright as a fundamental right and the right to freedom of expression, Advocate General Maciej Szpunar suggests that external challenges to exclusive rights under copyright law should be limited to extreme cases. In his view, the balance between different fundamental rights in copyright must be struck by the legislature in order to avoid undermining the efforts of EU harmonization.
At a time where European copyright reform is hotly debated and the policy process is at a breaking point that might result in highly unsatisfactory rules or a persistent standstill in the development of EU copyright law (a brief summary of the current status can be found here., Advocate General (AG) Szpunar has been asked to deliver opinions in three preliminary references. All cases have been referred to the Court of Justice of the European Union (CJEU) by the German Bundesgerichtshof (BGH), the Federal Supreme Court. All three references contain similar and even partly identical questions. The essence of the preliminary references lies in the question how copyright rules should strike the balance between the interests of the right holders and users of works that are protected by copyright.
Copyright grants the author of a work the exclusive right to authorise or prohibit a number of protected acts. Such acts include, most importantly, to make reproductions of the work and to make the work available to the public (in physical and intangible form). An overly broad application of these rights could be used to completely control the use of the work, which is why copyright law foresees exceptions and limitations to the exclusive rights for certain purposes. For example, works protected by copyright, or at least parts thereof, can be used for the purposes of quotation and news reporting. At EU level, these rights and exceptions are mainly harmonized by the Information Society Directive (Directive 2001/29/EC, also ‘InfoSoc Directive’). Article 5 of the InfoSoc Directive contains one exception which Member States (MS) are obliged to implement into their national laws and 20 optional exceptions which MS are at liberty to implement. As a general rule, MS are not allowed to maintain in their copyright laws exceptions or limitations that are not contained in Article 5 (special exceptions exists for certain types of works, such as computer programs in Article 5 of Directive 2009/24/EC and original databases in Article 6 of Directive 96/9/EC); recital 32 of the Directive states that the list in Article 5 is exhaustive. There also exist so-called related rights, or neighbouring rights, which do not protect the author, but rather individuals who create, for example, sound recordings. For instance, the InfoSoc Directive and the Directive on rental and lending rights and on certain rights related to copyright in the field of intellectual property (Directive 2006/115/EC) grant producers of sound recordings similar rights to those enjoyed by authors.
This year the InfoSoc Directive turns 18, and although technology and society and the way we interact with works protected by copyright have changed, the elementary rules of copyright have remained unchanged. The longer Article 5 matured the less palatable it became for those who longed for more flexibility in the EU copyright rules. Technological developments, the Internet, social media and other modern phenomena made the list seem outdated. Exceptions and limitations struggled to accommodate new business models and the application of new technologies that implied the reproduction, even if only for purely functional purposes, of works protected by copyright. European scholars looked with moderate envy to the US where the US fair use doctrine constitutes a flexible moderating norm that can balance the interests of right holders and users on a case-by-case basis.
Many also turned to fundamental rights as a last resort to force open the exhaustive list of Article 5. The right to freedom of expression, in particular, was used as an argument to suggest that exceptions to the exclusive rights must exist beyond the limited list of copyright exceptions of the InfoSoc Directive.
This post does not discuss in detail the analyses of AG Szpunar that pertain exclusively to the interpretation of exclusive rights and exceptions and limitations. They have already been discussed here for Pelham and here for Funke Medien and here and here for Spiegel Online. Instead, this contribution focuses on the balance the Advocate Generals strikes between the right to freedom of expression and the right to property within copyright law.
Facts and Findings
Pelham – Music Sampling
The Pelham litigation (or “Metall auf Metall”, as it is commonly known in Germany, spans over a decade. The HipHop producer Moses P. had used a 2-second sample from the song “Metall auf Metall” by the German pioneers of electronic music, the band Kraftwerk, in the song “Nur Mir”. The taking of a sample, the identical reproduction of a sound recording, requires authorization from the owner of the phonogram right, and Moses P. had not acquired authorization for his use of the sample. His attempt to rely on an exception failed and, ultimately, he argued in front of the German Constitutional Court (BVerfG) that the application of the German copyright rules would restrict him in the exercise of his right to artistic freedom. The BVerfG agreed in principle and handed the case back to the BGH, which made a preliminary reference to the CJEU
Funke Medien – Leaking of secret military reports
In Funke Medien, the German government tried to suppress the publication of confidential military reports, which were distributed to selected members of the German Parliament and certain federal ministries. The leaked reports were published on the website of a newspaper in full, unredacted and without further commentary. Because exceptions to copyright are, as a general rule, interpreted strictly, the newspaper could not rely on the exception for the purposes of news reporting and quotation. The newspaper argued that a prohibition to publish the reports by invoking copyright would infringe their right of information and the freedom of the media.
Spiegel Online – Decontextualized publication
Volker Beck, a member of the German Parliament, sought to prohibit that a manuscript was made available, which he had written in the late 1980s. Beck claims that the publisher had altered his manuscript prior to publication and thereby changed the message of the piece. He himself had published the manuscript as well as the published version on his own website. Over every page of each document ran a text that stated that he distances himself from the text (an reproduction is available on p. 6 of the BGH decision to refer the case to the CJEU) ; the pages of the published version further included a statement that the text had been changed without his authorization. The German news magazine Spiegel Online published an article on its website arguing that both versions of the text were very similar and that the tenor of both versions was the same. The manuscript as well as the published version were made available via hyperlink. Volker Beck argued that his copyright had been infringed, Spiegel Online relied on the same rights as Funke Medien.
At the heart of the preliminary references were three questions. First, the BGH asked how fundamental rights have to be taken into consideration when interpreting the exclusive rights and exceptions and limitations in copyright law. Second, how much flexibility do MS enjoy when implementing the provisions of the InfoSoc Directive. And, third, do fundamental rights justify exceptions or limitations beyond Article 5 of the Directive.
In all cases the conflict that will determine the balance is between the fundamental right to property under Article 17(2) of the Charter of the copyright holder and the right to freedom of expression under Article 11 in its respective emanation (media, information, art). The purposes for which copyright is invoked are very different. In Pelham, the producers of the song “Metall auf Metall” seek to be remunerated for the use of parts of their phonogram, in Funke Medien, the Federal Republic of Germany seeks to employ copyright to keep information secret, and in Spiegel Online Volker Beck wants to ensure that he can tell his own story.
These preliminary references, all made on the same day by the BGH, are symptomatic of the paralysed state of copyright in the EU. While current proposals for reform suggest the introduction of a new exclusive right for press publishers and strengthened enforcement measures, the interest of users are only addressed with a few relatively narrow exceptions for text-and-data mining, online cross-border educational uses and for the preservation of works by cultural heritage institutions.
Other ‘free’ uses are currently not foreseen, in particular an exception for user-generated content or a flexible open norm, that would enable copyright law to adapt to developments in the use of protected works are not discussed by the legislature. This is why the Opinions of Advocate General Szpunar were eagerly awaited, many hoping for a bit more liberty and freedom in the use of copyright-protected works. But the Advocate General disappointed those who had hoped for flexibility induced by fundamental rights.
The first surprise came when the Advocate General did not join the cases, which all featured questions that were largely identical, aside from some technical aspects on the interpretation of the rights of producers of phonograms and the scope of certain exceptions. Instead, the opinions trickled in from late October (Funke Medien), through mid-December (Pelham), to early January (Spiegel Online).
Funke Medien is the overture to these three landmark cases. In his Opinion AG Szpunar explains what copyright protects and who enjoys this protection for which purposes. He commences his argument by recalling that copyright is an economic exploitation right that protects the particular expression in which an idea takes shape, but does not protect the idea itself (para. 15). And, of course, copyright can create obstacles to the exercise of the right to freedom of expression, but copyright itself foresees mechanisms that enable free expression. These mechanisms are the idea/expression dichotomy and exceptions to the exclusive rights protected by copyright and related rights. First, the idea, or the information that finds expression in the work, is not protected by copyright, but only the particular expression. Second, in certain cases that are covered by an exception, an individual is permitted to use protected works without authorisation from the right holder. Both mechanisms ensure balance between the two fundamental rights (paras. 37-8). Only in exceptional circumstances would it be necessary to subject the copyright rules to an external review under Article 11 EU Charter. Here, the AG refers to two cases decided by the European Court of Human Rights (Ashby Donald v France and Neij and Sunde Kolmisoppi v Sweden), in which the Strasbourg Court had left room for such an external limitation, but did not find it justified to apply it based on the facts of the cases (paras. 40-2)
This case is, however, different, in that there is a strong public interest involved in the publication of military reports, as opposed to fashion photography (Ashby Donald) and illegal downloads of music and films (Sunde/Kolmisoppi). Opposing this public interest is the interest of the state to keep the information confidential, as the publication of the reports could endanger the lives of military personnel. With reference to the EU Charter and the European Convention of Human Rights the AG emphasizes that a limitation to freedom of expression can only be justified, amongst other grounds, to protect the rights of others. And because fundamental rights are rights against the state, a MS cannot invoke copyright in order to protect the interest of the state. This would only be possible on grounds of public interest. As a result, the Federal Republic of Germany could not invoke a property right to safeguard the confidentiality of military reports. (paras. 51-7)
Even if this were different, AG Szpunar would still not permit the use of copyright to hinder the publication of the reports. He draws upon the rationale why copyright protects expression. One reason is to create a bond between a work and the author, to protect him or her against the abuse and any type of derogatory treatment of his or her work. And although this area of copyright is not harmonised at EU level, the AG argues that the German State is not the author here, but merely the right holder, and therefore does not deserve protection (para. 59). The second reason is to enable the right holder to exploit a work economically and prevent others from exploiting a work without authorisation. Funke Medien Germany is not concerned about the economic value of the reports, but rather wants to control the information contained therein. As this is not the purpose of copyright protection, Germany could not invoke its fundamental right to property to justify a limitation to the Article 10 rights of Funke Medien (para. 61).
In Pelham the situation is fundamentally different: here there are two parties struggling for their right to economic exploitation of a phonogram and the right to create music by using samples. AG Szpunar, contrary to his Opinion in Funke Medien, actually addresses all questions in detail. For the copyright questions, he answers in a quite straightforward manner that MS are barred from introducing exceptions or limitations to copyright that go beyond the list in Article 5 InfoSoc Directive and that their degree of latitude when implementing the exclusive rights and exceptions and limitations is limited. MS must ensure the protection of the harmonised exclusive rights and can permit exceptions to the right only as far as Article 5 permits. Merely in the way they implement the rights and exceptions MS are free as long as they comply with their obligation to achieve the result foreseen by the Directive. (paras 71-9)
The fundamental (rights) question, namely whether freedom of expression allows for exceptions besides those contained in the EU copyright rules, turned out to more complicated. First, AG Szpunar engaged with the arguments of the German Constitutional Court, to which Moses P. had filed a constitutional complaint after having lost in last instance before the BGH, before the case was referred back to the latter. The German Constitutional Court had suggested that an interpretation of German copyright law that would prohibit the use of a short sample without the authorisation of the right holder would not take the right to artistic freedom, as protected by the German constitution, sufficiently into account. It asked the BGH to reconsider its jurisprudence to enable unauthorised sampling in certain circumstances. The BGH, slightly clueless as to how to achieve this aim, sought guidance from the CJEU. (paras. 86-8)
AG Szpunar first draws attention to a seemingly paradoxical situation. Copyright is supposed to foster creativity, yet in this case creativity is prevented by phonogram producers, who are artists themselves, by relying on their exclusive right. The alleged infringer is also an artist, the author of a musical works and producer of a phonogram, who uses parts of other phonograms to exercise artistic creativity, an activity protected under Article 13 EU Charter. When assessing the situation, all the interests in this complex situation must be balanced against each other. Whereas the AG recognises the interest of the artist to create, he is also mindful of the fact that artists are limited by the realities of life, amongst other by scarcity of material, physical or intellectual. He acknowledges that an absolute freedom to create would imply a significant limitation of the property rights of others. He encapsulates this conundrum in the sentence: “Is it conceivable for a painter to rely on his freedom of creation so as not to pay for his paint and paintbrushes?” (para. 92) Therefore, a producer of music can very well be required to acquire a license to use a sample from a sound recording. The BGH had, in its jurisprudence, which had been overturned by the BVerfG, suggested that an artist may not be allowed to use a sample by copying from a sound recording, but would not be barred from re-creating the sounds. AG Szpunar concludes that an exception to the exclusive rights of phonogram producers that allows others to use samples without authorisation would not be necessary to give effect to the right to artistic freedom under Article 13 of the Charter. (paras 89-99)
In Spiegel Online AG Szpunar reiterates what he has already stated in the two earlier cases: to strike the balance between freedom of expression and the right to property falls within the margin of manoeuvre of the legislature, and only in exceptional circumstances can the judiciary intervene when the essential content of a fundamental right is at stake (para. 62) The introduction of an ad hoc balancing mechanism (similar to the US fair use defense in copyright law) would jeopardize the purpose of harmonization at EU level, to the effect that the balance between the different interest would be subjected to the sensibilities of the national courts (para. 63). In this particular case the interest of the public would not justify the unauthorized publication of Mr Beck’s article on the website of Spiegel Online, as it was not necessary to make the informational content accessible to the public. Mr Beck had already made the texts available on his own website (para. 72). AG Szpunar adds that Mr Beck was also entitled to use copyright to protect his right under Article 10 EU Charter (freedom of thought). For this purpose, copyright has to be interpreted in the light of not only the Charter, but also in the national context in the light of unharmonized areas of copyright law, moral rights in particular. This enables Mr. Beck to control not only whether information is accessible, but also ‘how’ others perceive his work; in this case with the statement that he distances himself from his earlier work (paras. 77-9)
The three Opinions demonstrate that striking the balance is not easy, but that a principled approach to the mechanisms of balancing is of utmost importance. As much as the Opinions disappoint in some of their practical implications (the Opinion in Pelham had been eagerly awaited by musicians and artists), their systematic outcome is sound. AG Szpunar does not yield to the popular demand that copyright should be more flexible in the absence of a normative foundation for such flexibility. Instead he argues soundly that the balance between different fundamental rights has to be struck first and foremost by the legislature, that is the EU legislature. Flexibility introduced through the judiciary would destabilize the normative structure of copyright law, as dissatisfactory as the rules might currently be. This approach reveals a sensible understanding of the potentially destructive results that a more liberal (viz. populistic) ruling might have.
Maciej Spzunar’s Opinions therefore strengthen the legislature and makes it the supreme rulemaker in copyright. He also implicitly burdens it with the responsibility to create balanced copyright rules. Whereas some may understand the Opinions as a restrictive position on copyright law, the three thoroughly argued submissions can also be considered as a contribution to the current reform debate which bestow the European legislature with the responsibility to (finally) make good copyright laws for the European Single Market.