IIC - International Review of Intellectual Property and Competition Law

The criterion of “a fairly large number of persons” relevant for examining whether a work has been made available to the public is not fulfilled when a product photo that was initially made available by a seller in violation of copyright on an internet trading platform in the context of that seller’s sales post was, after the seller’s submission of a cease-and-desist declaration, only accessible by entering in the internet a URL approximately 70 characters in length and, based on experience, it is to be assumed that the URL will only be entered by persons who had previously saved or otherwise copied or made note of this address – when the photo was still freely accessible in the context of the ad, before the cease-and-desist declaration – or who had been given the address by such persons.

In accordance with Article 112(1)(a) EPC, Technical Board of Appeal 3.3.04 referred the following points of law to the Enlarged Board of Appeal with interlocutory decision of 31 May 2012 in case T 1242/06:

Article 2(b) and Article 3(2)(a) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as not precluding national legislation which establishes, as regards the exploitation of audiovisual archives by a body set up for that purpose, a rebuttable presumption that the performer has authorised the fixation and exploitation of his performances, where that performer is involved in the recording of an audiovisual work so that it may be broadcast.

In the first part of the new millennium, the rise of the use of fundamental rights in shaping and using intellectual property norms has led one of the authors of this article to predict that this movement will be “constitutionalizing” intellectual property law. More than a decade and a half later, the influence of fundamental rights on the scope and limitations of intellectual property has never been more important, as illustrated by three seminal copyright decisions (in the Funke Medien, Pelham and Spiegel Online cases) delivered in July 2019 by the Court of Justice of the European Union. These decisions, dealing with the relationship between copyright and freedom of expression (including freedom of the media, information, and freedom of artistic creativity), stand out in the European judicial practice on copyright and fundamental rights for a number of reasons. First, freedom of expression and its balancing factors play a crucial role in shaping the contours of the exclusive rights, starting from the definition of copyright law’s subject-matter and extending to the right of reproduction, as well as – most importantly – to copyright limitations and exceptions. In essence, the CJEU takes a quite liberal position towards the national courts’ interpretation of existing copyright norms in the light of the freedom of expression requirements. The CJEU goes even as far as to term the Art. 5 InfoSoc exceptions not as “exceptions” as such but as self-sufficient rights of users of copyright-protected subject-matter. It is also notable that, in applying freedom of expression to EU copyright, the CJEU has largely relied on the case law of yet another supranational European court – the European Court of Human Rights – manifesting eagerness to engage in a “dialogue” with the principal human rights tribunal in Europe in order to establish guiding principles for EU copyright law informed by freedom of expression. Such a liberal, “freedom-of-expression-driven” approach of the CJEU to the interpretation of EU copyright appears quite analogue in results that could be reached by applying an external and/or open-ended copyright exception. Nevertheless, the Luxembourg Court indicates in Funke Medien, Pelham and Spiegel Online that an externally introduced flexibility (by means of complementing that already existing in the EU list of exceptions) could be harmful to copyright harmonization and legal certainty. Therefore, despite having taken a more favourable position on the possibility of shaping EU copyright by fundamental rights norms, the CJEU does not go all the way, since it considers in quite categorical terms that an external freedom of expression exception beyond the exhaustive list of limitations of Art. 5 InfoSoc is clearly inacceptable. According to the Court, copyright’s own internal mechanisms present sufficient safety valves for balancing with freedom of expression. Such a position of the CJEU that relies on the fact that the legislature has anticipated all the potential conflicts between copyright and higher ranking norms such as fundamental rights might be incompatible with the EU legal order. Thus, despite visible progress in flexibilizing copyright norms via their interpretation “in the light of” fundamental rights, some further steps will still need to be taken in the future to make the “constitutionalization” of IP law a complete reality in the EU.