A Decade of Fair Balance Doctrine, and How To Fix It

A Decade of Fair Balance Doctrine, and How to Fix It:
Copyright versus Fundamental Rights before the CJEU from Promusicae to

Funke Medien, Pelham and Spiegel Online
Caterina Sganga
ABSTRACT. From Promusicae to date, the fair balance test has evolved into an articulated, sector-specific
doctrine, but loopholes have still affected its reliability and consistency over time. This article sketches the
evolution of the fair balance case law, draws a conceptual map schematizing the key elements of the
doctrine, identifies its gaps, and illustrates how the CJEU can fix them, commenting on this basis on the
recent AG Opinions and decisions in Funke Medien, Pelham and Spiegel Online.
1. INTRODUCTION
Eleven years passed from the first debut of the horizontal application of fundamental rights (Drittwirkung)
in EU copyright law. With Promusicae (2008),1 which ruled that fundamental rights should be used not only
by national legislators when implementing EU law, but also by national authorities and courts when
applying related national measures, the Court of Justice of the European Union (CJEU) has opened a new
era of rampant harmonization, where fundamental rights have consistently been employed in a wide range
of matters to shape and often expand the acquis communautaire.2
Fundamental rights, as “an integral part of the general principles of law”,3 have been used twice by the
CJEU to assess the validity of new EU copyright law provisions from 1998 to 2008. Then, with the entry
into force of the Charter of Fundamental Rights of the EU (CFREU), and the reference to the “fair balance”
made by Directive 2001/29/EC (InfoSoc, Recital 31), the number of cases where they featured a prominent
role in the Court’s argumentation skyrocketed. Freedom of expression, freedom to conduct a business, the
right to private life and to the protection of personal data have been employed to interpret provisions in
the field of ISP injunctions, exceptions and limitations, exclusive rights and fair compensation, or to assess
the legitimacy of national measures. The growing number of precedents has triggered a flow of doctrinal
contributions, trying to envision content and structure of Article 17(2) CFREU, make order into the
constitutionalization of copyright, and propose solutions to employ at best the interpretative arsenal offered
by Promusicae and its progeny.4 The impact of these attempts on the CJEU’s case law, however, has

Associate Professor of Private Comparative Law, Scuola Superiore Sant’Anna (Pisa). Email:
c.sganga@santannapisa.it.
1 Case C-275/06 Promusicae v Telefonica de Espana [2008] ECR I-271 at [68].
2 As noted by Jonathan Griffiths, ‘Constitutionalising or harmonizing? The Court of Justice, the right of property and
European copyright law’ [2013] ELR 65. See also Christophe Geiger, ‘”Constitutionalising” intellectual property law?
The influence of fundamental rights on intellectual property in the European Union’ [2006] IIC 371; Martin Husovec,
‘Intellectual Property Rights and Integration by Conflict: the Past, Present and Future’ [2016] 18 Cambridge Yearbook
of European Legal Studies 239, 262; Tuomas Milly, ‘The constitutionalisation of the European legal order: impact of
human rights on intellectual property in the EU’, in Christophe Geiger (ed), Research Handbook on Intellectual Property
and Human Right (Edward Elgar 2015), 119.
3 Case C-200/96 Metronome Music GmbH v Music Point Hokamp GmbH [1998] ECR I-01953 at [21]; Case C-479/04
Laserdisken ApS v Kulturministeriet [2006] ECR I-08089 at [61].

4 See, eg, Griffiths (n 2); Jens Schovsbo, ‘Constitutional foundations and constitutionalization of IPR law’ [2015]
Zeitschrift fur Geistiges Eigentum 383; Milly (n 2); Jonathan Griffiths, ‘Taking Power Tools to the Acquis - The Court
of Justice, the Charter of Fundamental Rights and European Union Copyright Law’, in Christophe Geiger (ed),
Intellectual Property and the Judiciary (Edward Elgar 2018); Stijn van Deursen and Thom Snijders, ‘The Court of Justice at
the Crossroads: Clarifying the Role for Fundamental Rights in the EU Copyright Framework’ (2018) 49 IIC 1080;
Electronic copy available at: https://ssrn.com/abstract=3414642

unfortunately been minimal, with the result that the fair balance doctrine is still far from achieving the level
of consistency and predictability required to contemporarily ensure the legal certainty and flexibility needed
for EU copyright law to fulfill its goals.
Three referrals from the German Bundersgerichtshof (BGH) – Funke Medien,5 Pelham6 and Spiegel Online7 - have
recently asked the CJEU to define the boundaries of the Drittwirkung in EU copyright law and its role in
the construction of the discipline. Against this background, this article aims to (i) reorder, in a concise
overview, the evolution of the case law in the field, (ii) draw a conceptual map that schematizes the key
elements of the fair balance test(s), (iii) identify what is still missing to reach a greater consistency,
predictability and effectiveness in the doctrine, and briefly illustrate the instruments available for the CJEU
to fix these gaps, assessing on this basis the direction taken by AG Szpunar in his recent Opinions on the
three BGH’s referrals, and the responses offered by the Grand Chamber a few days before this article was
scheduled to go to press.
2. TWENTY YEARS, THREE PHASES (AND ONE AHEAD)
From their first mention in a CJEU’s copyright case in 1998 (Metronome Music),8 the Court has made
substantial use of fundamental rights in its reasoning 23 times. The decisions can be classified
chronologically in four phases, separated by landmark precedents marking momentous changes in the tests
and principles developed by the CJEU.9
2.1. Phase One: the prehistory (1998-2008)
In Metronome Music (1998) the Court was called to decide on the validity of Article 1(1) of the Rental
Directive,10 challenged by a CD rental company which alleged that the introduction of a new rental right in
favour of copyright owners disproportionately violated its freedom to pursue a trade. Eight years later, in
Laserdisken (2006), a Danish company, which had long relied on international exhaustion to run its cross-
border trading of copies of cinematographic works, claimed the invalidity of Article 4(2) InfoSoc and its
system of regional exhaustion for disproportionate violation of its freedom of expression. In both instances
the CJEU rejected the claims, proceeding with a “loose proportionality assessment”,11 made of two steps.
The first step entailed the identification of the rights and freedoms to be weighed against each other,
building on the indications provided by national courts. The protection of intellectual property rights was
qualified as a general principle of EU law (Metronome)12 and part of the right to property (Laserdisken).13 The
second step evaluated the validity of the measure, with a three-step assessment that verified its (i)
accordance with the law (Laserdisken), (ii) justification in light of the general interest (both), (iii-a)
proportionality to the legitimate aim pursued and necessity (Laserdisken), or (iii-b) proportionality and non-
intolerable interference impairing the very substance of the rights guaranteed (Metronome). This embryonal,
Peter Oliver and Christopher Stothers, ‘Intellectual Property under the Charter: Are the Court’s Scales Properly
Calibrated?’ (2017) 54 CMLR 517.
5 Case C-469/17 Funke Medien NRW GmbH v Bundesrepublik Deutschland [2019] EU:C:2019:623.
6 Case C-476/17 Pelham GmbH and Others v Ralf Hütter and Florian Schneider-Esleben [2019] EU:C:2019:624.
7 Case C-516/17 Spiegel Online GmbH v Volker Beck [2019] EU:C:2019:625.
8 (n 3).
9 Other contributions have used different classifications, eg, inter alia, the presence/absence of mentions to Article 17
CFREU (Oliver and Stothers, n 4) or the matter touched by the analysis (rights, exceptions, enforcement, as in
Deursen and Snijders, n 4).
10 Council Directive 92/100/EEC on rental right and lending right and on certain rights related to copyright in the
field of intellectual property (Rental Directive I) [1992] OJ L346/61.

11 Griffiths (n 2) 67.
12 Metronome (n 3) at [21].
13 Laserdisken (n 3) at [65].

very general proportionality test, already used by the CJEU in other matters,14 and derived from Member
States’ common constitutional traditions, the ECHR and the ECtHR’s case law,15 operated in the context
of the still very traditional vertical use of fundamental rights as benchmarks to assess the legitimacy of EU
law provisions. The real revolution arrived, instead, in 2008.
2.2. Phase Two: Promusicae and its progeny (2008-2013)
In Promusicae the Court was asked whether EU law obliged Member States to lay down an obligation for
ISPs to communicate personal data of their customers in the context of civil proceedings. The referral,
coming from the Juzgado de lo Mercantil de Madrid, originated from Telefonica’s appeal against the
injunction that requested the company to disclose to Promusicae, an association of producers, the identities
underlying IP addresses that were found exchanging infringing materials over KaZaA, in order to allow the
launch of civil proceedings for copyright infringement. The CJEU excluded the existence of such an
obligation, rejecting also Promusicae’s attempt to derive it from the need to respect Article 17 and 47
CFREU on the protection of intellectual property and the right to an effective remedy. To support its
conclusions, the Court introduced into EU copyright law two key interpretative prescriptions, already tested
by the CJEU in other sectors, and now representing one of the pillars of the Court’s copyright
jurisprudence.16 The first requires Member States to implement EU directives using a reading that allows a
fair balance to be struck between various fundamental rights protected by the Community legal order, as
demanded by Recital 31 InfoSoc. The second – a step forward compared to the InfoSoc preamble - asks
national authorities and courts to use fundamental rights as interpretative tools to ensure that national
measures transposing EU directives are read in line with fundamental rights and other general principles of
Community law.
The innovation was momentous, for it marked the debut of the Drittwirkung in EU copyright law, which
promised to increase the flexibility of the discipline, involving also national courts in the process. For the
new fair balance doctrine to properly operate, however, the Court would have needed to formulate clear
balancing criteria, and to apply them consistently in subsequent decisions. Instead, the decisions that
followed added only side clarifications, and provided assessments that were mostly factual and backed by a
dry and concise reasoning.
In Painer,17 concerning the unauthorized publication of photographs realized by Ms Painer, which portrayed
a girl abducted and later released, on a number of newspapers reporting on the event, the CJEU refused to
use freedom of expression to broaden the scope of the exception of Article 5(3)(e) InfoSoc in favor of the
defendant-newspapers, arguing that the provision’s goal was not to strike a balance between Article 10
CFREU and copyright, but between copyright and public security. In fact, the Court narrowed down
Promusicae by allowing the use as an interpretative tool of the sole fundamental right which the legislature
aimed at protecting through the provision at stake. Later, in Scarlet Extended18 and Netlog,19 the CJEU clarified
that the entry into force of Article 17(2) CFREU did not introduce an absolute protection and inviolability
for copyright,20 but exhausted the fair balance analysis with a very concise observation, which qualified and
banned the general filtering system imposed via injunction as a serious infringement of the ISP’s freedom
14 See, eg, Case C-44/94 R v Minister ofAgriculture, Fisheries and Food, ex parte Fishermen's Organisations and Others [1995]
ECR I-3115 at [55]; Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11453 at
[122]; with regard to freedom of expression, Case C-71/02 Karner [2004] ECR I-3025 at [50].
15 For a broader overview of the origin and development of the principle in the CJEU’s case law, see Grainne de
Burca, ‘The Principle of Proportionality and its Application in EC Law’ [1993] 13(1) Yearbook of European Law 105.
16 Case C-101/01 Lindqvist [2003] ECR I-12971 at [87]; Case C-305/05 Ordre des barreaux francophones et germanophone
and Others [2007] ECR I-0000 at [28].

17 Case C-145/10 Eva-Maria Painer v Standard VerlagsGmbH and Others [2011] ECR I-12533.
18 Case C-70/10 Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM) [2011] ECR I-11959.
19 Case C-360/10 Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV [2012]
EU:C:2012:85.
20 Scarlet Extended (n 19) at [43]; Netlog (n 20) at [41].

to conduct a business.21 A similarly dry statement featured in Luksan,22 where the Austrian non-recognition
of the copyright over a movie to its director was defined as a deprivation under Article 17(1) CFREU of a
“lawfully acquired IP right” granted by EU law.23 The argument, however, was only secondary to the finding
of a violation of secondary EU law caused by the illegitimate wrong implementation of an EU Directive,
and did not provide any additional guidance on content and implications of Article 17(2) CFREU.24
Confronted with a fact pattern similar to that of Promusicae, Bonnier Audio25 upheld a Swedish provision
introducing the possibility to issue injunctions obliging ISPs to disclose users’ data in civil proceedings on
copyright infringement. The assessment of the fair balance was again concise and mostly practical,26 with a
very cursory but still significant reference to the elements of a raw proportionality assessment taken from
the contested national provision (“the reasons for the measure outweigh the nuisance or other harm…”),27
suggesting a synonymity between the notion of “fair” and the notion of “proportionate”.28 Similarly, when
called to define the legitimacy of national private levy schemes financing the “fair compensation” provided
under Article 5(2)(b) InfoSoc in case of private copy exception, the CJEU announced the intention to
evaluate each solution on the basis of the principle of equal treatment under Article 20 CFREU,29 but then
proceeded with concise argumentations and very fact-specific criteria, of little use beyond the scope of
private levy schemes.
2.3. Phase Three: taking proportionality seriously (2013-2018)

It took five years for the Court to bring order in the fragmentation and clarify the steps to be followed
when performing the fair balance test. The occasion was the Grand Chamber’s decision in Sky Österreicht,30
ruling on the legitimacy of Article 15(6) of Directive 2010/13/UE, which allows Member States to
determine the conditions of the unauthorized and uncompensated use by broadcasters of short excerpts of
events of high interest to the public, which are transmitted on an exclusive basis by another broadcaster
under their jurisdictions.
Sky Österreich retrieved and confirmed the most important doctrines developed by the CJEU so far, from
the horizontal effects of fundamental rights31 to the social function of property and the freedom to conduct
a business.32 It added, however, two important points. On the one hand, it used the wording and contextual
placement of the fundamental freedom at stake to define its content and, particularly, its inner limitations.33
On the other hand, it proceeded with a direct and punctual application of Article 52(1) CFREU to evaluate
the legitimacy of the limitation of the right(s) or freedoms(s) that the challenged legislative measure had
allegedly caused.34 Building on the Charter’s provision, the Court introduced a two-step analysis. First, it
21 Scarlet Extended (n 19) at [48]; Netlog (n 20) at [46].

22 Case C-277/10 Martin Luksan v Petrus van der Let [2012] EU:C:2012:65.
23 Ibid at [70].
24 For a minimization of the importance of the decision in this respect see Henning Grosse Ruse-Khan, ‘Overlaps and
Conflict Norms in Human Rights Law: Approaches of European Courts to Address Intersections with Intellectual
Property Rights’, in Christophe Geiger (ed), Research Handbook on Intellectual Property and Human Rights (Cheltenham:
Edward Elgar, 2015) 78.
25 Case C-461/10 Bonnier Audio AB and Others v Perfect Communication Sweden AB [2012] EU:C:2012:219.
26 Ibid at [57-59].
27 Ibid at [58].
28 Ibid at [60].
29 Case C-457/11 to 460/11 Verwertungsgesellschaft Wort (VG Wort) v Kyocera and Others [2013] EU:C:2013:426 at [73];
Case C-463/12 Copydan Båndkopi v Nokia Danmark A/S [2015] EU:C:2015:144 at [31].
30 Case C-283/11 Sky Österreich GmbH v Österreichischer Rundfunk [2013] EU:C:2013:28.
31 Ibid at [60].
32 Ibid at [45].
33 Ibid at [46], noting that Article 16 CFREU differs from the wording of the other fundamental freedoms laid down
in Title II thereof, yet is similar to that of certain provisions of Title IV of the Charter”, and concluding on this basis
that “the freedom to conduct a business may be subject to a broad range of interventions on the part of public
authorities which may limit the exercise of economic activity in the public interest”.
34 Ibid at [48].

verified whether the contested provision affected the core content (or essence) of the freedom to conduct
a business. Once it answered to the negative, clarifying that the freedom could still be exercised otherwise,35
it moved to the second step - the evaluation of the proportionality of the interference. The test adapted the
standard proportionality assessment proposed by Article 52 CFREU to the fair balance analysis, articulating
it in four prongs, which are (i) the legitimate aim of the measure, that is if the measure was adopted in the
general interest or to protect the freedom or right of others; (ii) its appropriateness, framed as effectiveness
and adequacy to reach its purpose; (iii) its necessity, which consists in the unavailability of a less restrictive
solution to achieve the same goal, and (iv) its strict proportionality – the real fair balance test -, that is
whether the measure managed to strike a proportionate balance between the requirements of protection
resulting from the two fundamental freedoms or rights at stake.36 The Court concluded that the exception
had to be understood as proportionate and legitimate, since it was introduced in the public interest and to
protect the right to receive and impart information, it adequately ensured access to news related to events
of high interest, and it left to rightholders the possibility to still charge for the use of their programs through
other channels, while a full exclusivity would have excessively increased the cost of access to their
programs.37
The same criteria were used also in UPC Telekabel,38 which ruled on the compatibility with EU fundamental
rights of an injunction that ordered under coercive penalties to an ISP to ban access to an infringing website,
without specifying the measures to be taken, but allowing the ISP to avoid liability by proving to have
adopted all reasonable responses.39 The test implemented, however, was a step back compared to Sky
Österreicht, as it provided substantially less details, and used a particularly convoluted reasoning.40 First, the
Court looked at whether the injunction infringed the very substance of the ISP freedom to conduct a
business, and concluded that the possibility for the ISP to decide on the measures to undertake, and thus
to tailor them to its resources and abilities, preserved the essence of Article 16 CFREU. 41 Then, the CJEU
moved to the criteria to be used by national courts when assessing the legitimacy of the measures
implemented by the ISP. With a much more concise and implicit language, recalling Article 51(1) CFREU,
it requested to check whether the measure was appropriate (“effect of preventing unauthorized access”42),
necessary (“do not unnecessarily deprive internet users”43 of their freedom of information) and strictly
proportionate, id est striking a fair balance between all applicable fundamental rights,44 with a more detailed
evaluation devoted to the appropriateness prong.45
After Nintendo vs PC Box46 made an implied translation of the same principles in the field of DRM
protection, Coty Germany v Stadtsparkasse47 added another brick in the wall, specifying that a measure which
results in a serious infringement of a right protected by the Charter is to be regarded as not respecting the
fair balance requirement.48 The case concerned the validity of a German provision which allowed a banking
institution to oppose banking secrecy against any request of information on the name and address of an
account holder, and was used by Stadtsparkasse to refuse disclosing the identity underlying an account
35 Ibid at [49].
36 Ibid at [50].
37 Ibid at [51-66].
38 Case C-314/12 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH
[2014] EU:C:2014:192.
39 Ibid at [51].
40 For a broader critique of the case see Martin Husovec and Miquel Peguera, ‘Much Ado About Little – Privately
Litigated Disconnecting Injunctions’ (2015) 46(1) IIC 10.

41 Ibid at [52-53].
42 Ibid at [62].
43 Ibid at [63].
44 Ibid at [57].
45 Ibid at [58-62].
46 Case C-355/12 Nintendo Co. Ltd and Others v PC Box Srl and 9Net Srl [2014] EU:C:2014:25.
47 Case C-230/16 Coty Germany GmbH v Parfümerie Akzente GmbH [2017] EU:C:2017:941.
48 Ibid at [35].

linked to an online seller of perfumes carrying trademarks on which Coty Germany held an exclusive license.
The CJEU concluded that the provision, by excluding any possibility for rightholders to acquire information
on the infringers’ data, completely deprived rightholders of an effective remedy, thus frustrating the essence
of Articles 47 and 17(2) CFREU.49 This ruled out the presence of a fair balance and the need to proceed
further with the proportionality assessment. In fact, the approach was already implicitly present Sky
Österreicht, which checked the respect of the core of the freedom/right before proceeding with the balancing
test. Coty, however, crystallized the assumption in a cogent presumption of unfairness and illegitimacy of
the measure, seemingly in line with the absolute theory of essence, which excludes the proportionality
assessment in case of violation of the core of the fundamental right,50 and with a use of Article 17(2)
CFREU to expand the reach of the EU harmonization and compress Member States’ policy space.51
Mc Fadden,52 ruling on the legitimacy of three injunctions imposed on a shop owner in order to ensure the
prevention of copyright infringements through the wi-fi connection he offered free access to, followed
Coty, checking in the first place whether they violated the essence of any of the conflicting freedoms and
rights involved (freedom to conduct a business and freedom of information of users),53 by verifying whether
they could still be exercised otherwise.54 Only the injunction that passed this first stage - the obligation to
password-protect the wi-fi network - was then subject to the proportionality assessment dictated by Article
52 CFREU, where the CJEU factually evaluated whether the measure was appropriate, necessary and strictly
targeted/proportionate.55
The approach was confirmed in Bastei Lubbe,56 which concerned the compatibility with EU law of a German
provision that allowed the owner of an internet connection, used to infringe copyright, to escape liability
by proving that other people were able to have independent access to it at the time of the infringement,
without being obliged to provide additional details. Here the Court excluded that the right to private life,
and the higher protection it confers to family life, may allow a national measures that, making it possible to
refuse to testify against family members, offered a sort of immunity to the owners of family-shared internet
connections. The German provision was deemed to seriously impair the essence of the right to an effective
remedy (Article 47 CFREU) and to intellectual property (Article 17(2) CFREU), a circumstance that
radically denied the presence of a fair balance - id est of proportionality - without the need to perform the
second prong of Article 52(1) test.
Cases involving fundamental rights to draw the boundaries of exclusive rights present different features.
Two examples are GS Media57 and Renckhoff.58
In GS Media, the Court was asked to determine whether the posting of a link to protected works, freely
available to another website without the consent of the rightholder, constituted an illegitimate
communication to the public under Article 3 InfoSoc. Recalling the need for a fair balance between
copyright and other fundamental rights,59 the CJEU recognized that a positive answer would have had
chilling effects on internet users who, unable to ascertain with certainty whether the linked content had
been legitimately posted, would have avoided hyperlinking not to expose themselves to an incalculable risk
49 Ibid at [38].
50 See Steve Peers and Sacha Prechal, ‘Article 52 – Scope of guaranteed right’ in Jeff Kenner, Angela Ward, Steve
Peers and Tamara K Harvey (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford: OUP, 2014), §51.1.
51 Along the same lines see Milly (n 2) 119-120. See also Husovec (n 2) 262, theorizing the introduction of a positive
obligation for Member States to provide a specific remedy.

52 Case C-484/14 Tobias Mc Fadden v Sony Music Entertainment Germany GmbH [2016] EU:C:2016:689.
53 Ibid at [88-89, 91].
54 Ibid at [92].
55 Ibid at [93-97].
56 Case C-149/17 Bastei Lübbe GmbH & Co. KG v Michael Strotzer [2018] EU:C:2018:841
57 C-160/15 GS Media BV v Sanoma Media Netherlands BV and Others [2016] EU:C:2016:644
58 C-161/17 Land Nordrhein-Westfalen v Dirk Renckhoff [2018] EU:C:2018:634
59 Ibid at [31].

of infringement. However, instead of following AG Wathelet’s suggestion of excluding hyperlinks from the
scope of Article 3 InfoSoc,60 the Court decided to introduce an additional criterion to identify illegitimate
conducts - the knowledge or reasonable expectation to know about the illegitimate nature of the posted
material, which is presumed in case of for-profit activities.61 The solution struck a temporary, practical
balance between copyright and the role hyperlinks play in fostering freedom of expression and the right to
receive and impart information online,62 but did not provide any argument that could contribute to the
construction of the fair balance doctrine in the context of the interpretation of exclusive rights.
The output was different in Renckhoff, where the CJEU excluded that the unauthorized reposting on a school
website of a protected picture, used by a pupil in a class assignment and taken from another website, could
be subject to the GS Media criteria. The Court based its reasoning on two observations, both impacting on
the fair balance results. The first emphasized that while hyperlinks are necessary to preserve freedom of
expression on the Internet, the same cannot be said for the reuse of an image that can be lawfully obtained
through other channels.63 The second underlined that hyperlinks do not challenge the author’s preventive
right to control and eventually block the use of her work, insomuch as a direct reposting on another website
does.64 In this sense, the CJEU implicitly applied the first step of the test, identifying the fundamental right
at stake and evaluating its effective involvement in the case. Afterwards, rather than assessing whether the
essence of the right(s) and freedom(s) involved was violated, the CJEU focused on the preservation of the
effectiveness of Article 3 InfoSoc,65 limiting the evaluation of the necessity of the restriction to a cursory
statement,66 and omitting the strict proportionality check..67
Alongside these quite consistent precedents, Deckmyn68 stands out for its relatively different approach. The
case revolved around the possibility to qualify as a parody a drawing, appeared on a calendar edited by Mr.
Deckmyn, which mocked the cover of a 1961 comic book, using its main character – “The Compulsive
Benefactor” – to move a political critique against the Mayor of Ghent. The question was whether the
definition of the parody exception under Article 5(3)(k) InfoSoc should have been understood as fully
harmonized by the Directive and, if so, whether it was subject to specific conditions. By ruling that parody
is an autonomous notion of EU law69 and that the application of Article 5(3)(k) InfoSoc should preserve
the fair balance between copyright and freedom of expression (link provision-fundamental right),70 the
CJEU used fundamental rights to request an almost complete harmonization of the exception, banning all
restrictive criteria for its application save for those deriving from the commonly known main features of
the figure (necessity and strict proportionality). In addition, by linking parody to freedom of expression,
the Court had implicitly transformed it into a mandatory exception (essence check, absorbing legitimate
aim and appropriateness of the measure), which Member States should implement unless they can prove
that they could strike through other means the same fair balance between copyright and Article 11 CFREU
in similar circumstances (again necessity).71
60 Opinion of AG Wathelet C-160/15 GS Media BV v Sanoma Media Netherlands BV and Others [2016] EU:C:2016:221
at [60].
61 Ibid at [51].
62 GS Media (n 57) at [45].
63 Renckhoff (n 58) at [40].
64 Ibid at [28].
65 Ibid at [30].
66 Ibid
67 No attention was paid, instead, to the exception for teaching and scientific research and to the fairness of the balance
struck between copyright enforcement and the right to education protected by Article 14 CFREU, despite the ample
space devoted by AG Sanchez Bordona to the matter (Opinion of AG Sanchez-Bordona in Case C-161/17 Land
Nordrhein-Westfalen v Dirk Renckhoff [2018] EU:C:2018:279 at [109-113]).
68 Case C-201/13 Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others [2014] EU:C:2014:2132.
69 Ibid at [15].
70 Ibid at [25].
71 See European Copyright Society, ‘Opinion on the Judgment of the CJEU in Case C-201/13 Deckmyn’ [2015] 37(3)
EIPR 127, 130.

Despite its argumentation was extremely concise (36 paragraphs in total, 22 operative), and the fair balance
assessment was fully remitted, with little guidance, to national courts, Deckmyn suggested to many that the
gate was open for a much stronger impact of fundamental rights and their judicial implementation on the
development of EU copyright law.72 None of the decisions, in fact, offered an answer on the boundaries
of the Drittwirkung in the field, and national courts interpreted their role with quite ample variations across
the Union. The three referrals submitted in 2017 by the BGH did not come, in this sense, as a surprise,
marking the opening of a new, fourth phase – the one of “boundary setting”.
3. DRAWING A CONCEPTUAL MAP
In the three phases, the notion of fair balance and fundamental rights have come into play in different areas
– ISP injunctions, fair compensation, the definition of the scope of exceptions and exclusive rights. Despite
the different matters at stake, however, the case law of the Court has converged around the construction
of a fair balance doctrine that can be summarized in a conceptual map made of three steps.
In the first step, the CJEU identified the right or freedom conflicting with copyright, usually on the basis
of the suggestion of the referring court. Then, it linked it with the provision(s) or injunction(s) at stake,
based, to the extent possible, on the legislative intent. If there was no connection, the fundamental right or
freedom was not used in the assessment. If a connection was found, the Court often explained the details
of the interaction. Finally, the third and most important step consisted in the assessment of the presence
of a fair balance, on the basis of criteria ultimately drawn from Article 52(1) CFREU.
Preliminarily, the CJEU verified whether the measure negatively affects the essence of the freedom or right
involved. Should that be the case, the lack of fair balance was presumed. On the contrary, if the essence
was preserved, the Court moved to the real proportionality assessment, which was adapted to the type of
fair balance at stake.73 Generally, in the case of ISP injunctions, the test was constituted by the full array of
criteria suggested by Article 52 CFREU (legitimate aim, appropriateness, necessity, strict proportionality).
In the case of definition of the scope of rights and exceptions, instead, the analysis was more simplified.
The legitimate aim and appropriateness of the measure were absorbed within the preliminary essence check,
where the focus, however, was not directly the core content of copyright or of the conflicting right(s) or
freedom(s), but the preservation of the effectiveness of the exclusive right or the exception - the second
being a mediated concept, since the purpose of the exception is, usually, the protection of a fundamental
right. Then, the Court assessed the necessity of the measure (restriction of the right or expansion of the
exception) for the protection of the conflicting right or freedom, verifying whether there were other less
invasive measures available to pursue the same goal. Last, it evaluated the strict proportionality of the
intervention on the right or exception, looking at the fair balance between the requirements of protection
of copyright and the conflicting right/freedom or public interest.
4. WHAT WE MISS(ED)
This conceptual map is clearly far from complete. The fair balance doctrine has been spelled out and
followed step-by-step only in a handful of landmark cases, while most of the decisions, characterized by
shorter argumentations, have merely recalled it or applied it cursorily, opting for a concise, practical and
often syncretic analysis. Despite the Court’s recent effort to offer more guidance, several essential aspects
were still waiting to be clarified before the BGH’s referrals in Funke Medien, Pelham and Spiegel Online.
72 Ibid at 131; Eleonora Rosati, ‘Just a Laughing Matter? Why the Decision in Deckmyn is Broader than Parody’ [2015]
CMLR 511.
73 More generally, see Vasiliki Kosta, Fundamental Rights in EU Internal Market Legislation (London: Bloomsbury, 2015),
61 ff.

The reference goes, first of all, to the definition of the essence of copyright, particularly in light of its
protection under Article 17(2) CFREU.74 The Court suggested that a fair balance is excluded if such a core
is violated,75 but has never provided any clear direction on the matter. Precedents have not been univocal
either on the sources to be used in order to build content and structure of the conflicting rights at stake,
particularly with regard to Article 17 CFREU. While the CJEU has reiterated that the validity of EU
provisions should be assessed only against the Charter’s rights, since the ECHR has not been incorporated
yet in EU law76, in several decisions the interpretation of fundamental rights has been assisted by references
to the Convention and to the ECtHR’s case law, and the role of common constitutional traditions to define
the protection of property has featured important strains of the CJEU’s case law.77 No such clarity has
characterized, instead, the construction of Article 17 CFREU, nor the fair balance decisions. Also the
specific subject matter of copyright, that is the content of the economic and moral rights to be taken as
a benchmark in the balance against other fundamental rights, has long been left undefined. Precedents from
other fields have indicated the need to avoid taking as metrics the maximum potential remuneration
possible,78 but nothing as such has systematically emerged in the case law on the interplay between copyright
and fundamental rights protection. More generally, the Court has long left in haze the boundaries of the
Drittwirkung in EU copyright law, being unclear on how far fundamental rights can go in shaping existing
provisions and creating new ones, beyond the content provided by a literal and contextual interpretation of
existing sources.
Such conceptual gaps, all intertwined and dependent on each other, would have needed a unitary solution
to be coherently and exhaustively addressed. A path of systematization and construction of a more detailed,
general doctrine, which would have also helped defining how far fundamental rights can go in shaping EU
copyright law, could have only started from AG’s Opinions, and would have required an additional effort
of argumentation from the CJEU, in line with the approach followed in the third phase. Unfortunately,
neither AG Szpunar nor the Grand Chamber fully exploited, for different reasons and to a different extent,
the opportunity offered by Funke Medien,79 Pelham80 and Spiegel Online.81
5. AG SZPUNAR’S TRIAD: THE GOOD, THE BAD AND THE UGLY
With a grand opening of the fourth phase, the three contemporary referrals of the Bundesgerichtshof raised a
number of specific questions on provisions of the InfoSoc Directive. Their most relevant, common request
of clarification, however, concerned (i) the way how fundamental rights of the Charter are to be taken into
account when defining the scope of exceptions and limitation and (ii) whether fundamental rights – and
74 The debate on the role of the notion of essence in the fundamental right balance under the CFREU has become
particularly intense in recent years. On the point see Peers and Prechal (n 50), and Maja Brkan, ‘The Concept of
Essence of Fundamental Rights in the EU Legal Order: Peeling the Onion to its Core’ [2018] 2 ECLR 332.
75 As in other field of EU law. See Brkan (n 74) 337. See also Tuomas Ojanen, ‘Making the Essence of Fundamental
Rights Real: the Court of Justice of the European Union Clarifies the Structure of Fundamental Rights under the
Charter’ [2016] 12(2) ECLR 318.
76 As in Case C-601/15, N. [2016] EU:C:2016:84 [45-46] and Joined Cases C-217/15 and C-350/15 Orsi and Baldetti
[2017] EU:C:2017:264 [15].

77 See, eg, Case C-44/79 Hauer v. Land Rheinland-Pfalz [1979] ECR 3727; Case C-4/73 Nold v. Commission [1974] ECR
491.
78 See clearly in Joined Cases C-403/08 Football Association Premier League Ltd and Others v QC Leisure and Others and C-
429/08 Karen Murphy v Media Protection Services Ltd (FAPL) [2011] ECR I-09083 [94]; Case C-62/79, SA Compagnie
générale pour la diffusion de la télévision, Coditel, and others v Ciné Vog Films and others [1980] ECR 881 [15-16]; Joined Cases
55/80 and 57/80 Musik-Vertrieb Membran and K-tel International v GEMA [1981] ECR 147 [9, 12]; Joined Cases C-92/92
and C-326/92, Phil Collins v Imtrat Handelsgesellschaft mbH e Patricia Im-und Export Verwaltungsgesellschaft mbH e Leif Emanuel
Kraul v EMI Electrola GmbH [1993] ECR I-05145 [20]; Case C-115/02 Rioglass and Transremar [2003] ECR I-12705 [23];
Case C-222/07 UTECA [2009] ECR I-1407 [25].
79 Opinion of AG Szpunar in Case C-469/17 Funke Medien NRW [2018] EU:C:2018:870.
80 Opinion of AG Szpunar in Case C-476/17 Pelham and Others [2018] EU:C:2018:1002.
81 Opinion of AG Szpunar in Case C-516/17 Spiegel Online [2019] EU:C:2019:16.

particularly freedom of expression - could justify the judicial introduction of exceptions beyond the scope
of Article 5 InfoSoc.
5.1. The good (?): Funke Medien
In 2012 Funke Medien, owner of the website of a German newspaper (Westdeutsche Allgemeine Zeitung),
requested to the competent Germany authority access to classified, weekly military status reports informing
selected members of the Parliament and federal ministries of issues related to the deployments of Federal
Armed Forces. Having its application rejected for reasons of protection of security-sensitive interests,
Funke Medien obtained a substantial portion of the same documents from an undisclosed source, and
published online individually scanned pages complemented with introductory notes. The Federal Republic
of Germany brought an action for injunction against the online newspaper, requesting the removal of the
materials on grounds of copyright infringement, upheld by the court of first instance and dismissed in
appeal. The subsequent appeal before the BGH originated the referral to the CJEU.
Since this very first Opinion, issued in October 2018, AG Szpunar clarified that no general answers could
be expected on the horizontal questions raised by the BGH, arguing that any generalized ruling would be
either too inflexible and prevent future adjustments, or too permissive and grant to the judicature free hands
to question the system, endangering legal certainty.82 A case-by-case approach, instead, would have allowed
an accurate application of the principle of proportionality, avoiding unjustified interferences with copyright
and other fundamental rights.83
The Opinion started with the assumption that copyright “already incorporates mechanisms designed to
reconcile it with respect for fundamental rights, first and foremost with freedom of expression”, such as
the idea-expression dichotomy and exceptions, and those mechanisms should be sufficient to achieve the
copyright balance, unless a question of validity of those provisions come into play.84 Exceptions, in
particular, make it possible to strike a fair balance without depriving authors “of the substance of their
rights”,85 identified in the link between author and work, and in the possibility to exploit the latter
economically. The existence of such limits, which the AG calls “internal”,86 does not exclude that the
application of copyright law should be subject to the respect of fundamental rights. While a systemic
shortcoming in this respect would question the validity of copyright law provisions, exceptional cases of
clashes may happen, and require copyright to yield to the implementation of a fundamental right or
freedom,87 which, in this sense, constitute external limits to copyright,88 as pointed out by also the ECtHR
in Ashby Donald89 and The Pirate Bay90 cases.
With regard to the sources to be used in the assessment, the AG tried to overcome the CJEU’s assumption
that the validity of EU provisions should be assessed only in light of the Charter, and proposed to follow
the ECtHR’s case law91 in light of Article 52(3) CFREU, which rules that in so far as the Charter contains
rights which corresponds to rights guaranteed by the ECHR, their meaning and scope are the same as those
laid down by the Convention.92 Beyond this clarification, the Opinion proceeded with a twisted order of
arguments, difficult to be generalized. Two conclusions are worth being emphasized, though.
82 Opinion in Funke Medien (n 92) at [29].

83 Ibid at [31].
84 Ibid at [30].
85 Ibid at [37].
86 Ibid at [40].
87 Ibid.
88 Ibid at [41].
89 Ashby Donald and Others v. France (2013) ECHR 287.
90 Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden IHRL 2038 (ECHR 2013).
92 Ibid.
10

In the first place, the AG used the protection of freedom of expression under Article 51(1) CFREU to
distinguish between protectable and non-protectable works, excluding that military reports could be
covered by copyright.93 Then, the Opinion added an important new factor in the assessment of the necessity
of the measure limiting the conflicting fundamental right. The point of reference, in fact, was not the need
to protect a generic copyright entitlement, but the realization of the functions of copyright, which the AG
identified in the protection of the link between author and work (moral right), and in enabling the author
to earn an income from her creative endeavors (property right).94 At a first sight, the notion seems to
reconnect to the essential function doctrine of the early CJEU’ case law,95 where the Court shaped the
essence of copyright on the basis of what was needed for the right to fulfill its goals in the particular
creative/market sector at stake,96 using the concept of appropriate remuneration to emphasize – as it was
later spelled out – that copyright did not protect the possibility to extract the maximum remuneration
possible from the exploitation of the work.97 Here, however, the Opinion refers only to a very generic,
school-book definition of the justifications of copyright,98 with no further specifications – an approach that
fails short to provide criteria to define the essence of exclusive rights and thus help in the fair balance
exercise.
The fact that copyright protection was refused made it not necessary for the AG to respond to the two key
questions raised by the referring Court.99 Yet, being aware that his arguments might have appeared to favor
the proposition that fundamental rights may be used to introduce exceptions beyond those laid down in
Article 5 InfoSoc,100 he clearly underlined that nothing in the Opinion should have been read as suggesting
the introduction of a general doctrine, since “it is one thing to give precedence to freedom of expression
over copyright in a specific and very particular situation. It is quite another to introduce into the harmonised
copyright system, outside the provisions of substantive EU law governing that area, exceptions and
limitations which, by their nature, are intended to apply generally”.101 Despite authoritative scholars have
read in Funke Medien an opening towards a broader use of fundamental rights in EU copyright law, and
pointed at the asymmetry between this Opinion and the other two Opinions delivered by the First Advocate
General of the CJEU,102 this very last sentence represented a clear advance notice of the position that AG
Szpunar would have taken three months later, in January, in Pelham and Spiegel Online.
5.2. The bad: Pelham
Pelham revolves around an infringement action launched by Mr Hutter and his group Kraftwerk against Mr
Pelham and Mr Haas, based on the defendants’ use in their hip-hop song “Nur mir” (1997) of 2 seconds
of a rhythm sequence of Kraftwerk’s “Metall auf Metall” (1977). The plaintiffs claimed that the sample
violated their reproduction right and related rights of reproduction and distribution of the phonogram,
which the defendants rebutted by relying on the right to free use (§24 UrhG), allowing the unauthorized
use of copyright-protected materials in the context of the creation of new independent works. The case
originated a long judicial saga in Germany, which ended with the BGH’s dismissal of defendants’ appeal
on a point of law, and led Pelham to resort to the Bundesverfassungsgericht (BVerfG, Federal Constitutional
93 Ibid at [44].
94 Ibid at [58].
95 See supra, fn 87.
96 See, eg, the distinction made on exhaustion for cinematographic works in Coditel I and II (n 78).
99 Ibid at [69].
100 Ibid at [70].
101 Ibid at [71].
102 As Christophe Geiger and Elena Izyumenko, ‘Freedom of Expression as an External Limitation to Copyright Law
in the EU: The Advocate General of the CJEU Shows the Way’ [2019] 41(3) EIPR 131, 138.
11

Court), claiming violation of his fundamental freedom of creative expression. The BVerfG sent back the
case back to the BHG, which referred it to the CJEU.103
Several aspects of the Pelham Opinion are particularly relevant. Significantly, the AG never used the
fundamental right argument to interpret and decide on the applicability of the three exceptions under Article
5 InfoSoc relevant for the case – de minimis reproduction, quotation and parody -, opting, instead, for a strict
literal and contextual reading of EU copyright sources.104 Again with no reference to fundamental rights,
the Opinion excluded the possibility to create an exception for the production of an independent work
from the free use of another work beyond the scope of Article 5.105 The answers provided to the two key
questions on the boundaries of the Drittwirkung in EU copyright law were also in line with this conservative
approach.
The first response concerned the degree of Member States’ discretion in implementing EU law and the
applicability, in this context, of national fundamental rights provisions. The question arose from the case
law of the Bunderverfassungsgericht, which demands the assessment of the legitimacy of national measures
under the CFREU if the legislator did not have any margin of appreciation when transposing the directives
into national law, opting for the German Constitution when this discretion is instead present.106 In response,
the Opinion recalled the Melloni107 doctrine and specified that under Article 53 CFREU Member States are
free to apply their constitutional standards of protection of fundamental rights when evaluating national
measures implementing EU law only to the extent that this does not compromise the primacy, unity and
effectiveness of EU law and its provisions.108 In the field of copyright, the AG noted that the discretion of
Member States under the InfoSoc Directive is limited by the several autonomous concepts of EU law, by
the wording of Article 5, and by the fact that the fair balance struck by the EU legislature between copyright
and fundamental rights made it in fact mandatory to implement specific exceptions.109 Member States
cannot rely on fundamental rights under national constitutions to escape such obligations, but they are free
to be guided by them and other national constitutional considerations within their freedom to determine
forms and methods of implementation of EU law. 110
The second, broader question asked whether fundamental rights must be taken into account when
interpreting the scope of exclusive rights, exceptions and limitations. As in Funke Medien, the AG refused
to provide a general answer, and looked instead at the factual background of the question – the Metall auf
Metall decision of the German Constitutional Court, and its compatibility with EU law.111 This allowed him
limiting the scope of the analysis to the definition of whether freedom of the arts, protected under Article
13 CFREU, constitutes a limitation or justifies the infringement of the exclusive right of phonogram
producers to authorize or prohibit the reproduction of their work.112 In response, AG Szpunar advanced
what may be probably considered the most restrictive argument he has ever formulated in his long personal
track on EU copyright law referrals. Reasoning similar to that followed by the German Constitutional Court
103 Along with the questions in common with Funke Medien and Spiegel Online, specific points in Pelham were whether
the reproduction right under Article 2(c) InfoSoc and Article 9(1)(b) of Directive 2006/116/EC on the term of
protection of copyright and certain related rights [2006] OJ L372/12 [Rental Directive] covered also very short audio
snatches of another phonogram; whether §24 UrhG on free uses, not included in the list of exceptions of Article 5
InfoSoc, could be considered compatible with EU law; and whether the quotation exception under Article 5(3)(d)
could be applied in cases where it was not evident that another person’s work or subject matter was being used.
104 Opinion in Pelham (n 93) at [67, 70] on quotation and caricature, parody of pastiche.
105 Ibid at [54].
106 Ibid at [72].
107 Case C-399/11 Stefano Melloni v Ministerio Fiscal [2013] EU:C:2013:107.
108 Ibid at [63].
109 Ibid at [76-77].
110 Ibid at [78].
111 Ibid at [81].
112 Ibid at [82].
12

– he stated -113 are not possible under EU law. Aside from considerations on the merit of the interpretation
offered by the Bundesverfassungsgericht,114 the Opinion followed an approach close to that of the ECtHR,
arguing that the balance between different rights and freedoms must be first undertaken by the legislature,
“which embodies the general interest” and enjoys a broad margin of discretion in that regard. 115 Courts can
control the compliance of the legislative solution with fundamental rights at a general level, and should
ensure it also in the context of the application to specific cases, but – save for exceptional cases – this
should happen “ within the limits of the applicable provisions enjoying a presumption of validity, including
with regard to fundamental rights”.116 With a statement that sounded as a final word for the flexibilities that
part of the doctrine hoped to introduce through fundamental rights within the tangles of EU copyright, the
Pelham Opinion proclaimed that “in the judicial review of the application of the current provisions,
fundamental rights play a different role: a sort of ultima ratio which cannot justify departing from the wording
of the relevant provisions except in cases of gross violation of the essence of a fundamental right”.117 In
other words, courts may overstep the literal and contextual application of existing sources only if the very
substance of a fundamental right would otherwise be violated. In the Metall auf Metall case, the essence of
artistic freedom is not violated, since it can still be exercised without reproducing the contested excerpt, by
using an exception provided by Article 5 InfoSoc, or by demanding a license, which qualifies as a “normal
market constraint”.118
5.3. The ugly: Spiegel Online
Mr Beck, a German MP since 1994, authored a manuscript on criminal policy relating to sexual offences
against minors, published under a pseudonym in an article to a book in 1988. Without permission, the
publisher changed the title of the piece and shortened one of its sentences. Beck objected, requesting an
explicit indication of the amendments before distribution, with no results. As a response to the critiques
triggered by the article, he publicly claimed that the text was modified and distanced himself from its
content. In 2013, the article was found in some archives and presented to Beck during his parliamentary
election campaign. As a response, the politician offered to several newspapers the manuscript to prove that
it was amended by the publisher, but never authorized its publication. Instead, he uploaded it on his website
to reiterate his disapproval of the modifications made by the publisher. In September 2013 Spiegel Online
posted online an article claiming that the most controversial aspects of the manuscript were never altered
and, to substantiate the claim, it provided hyperlinks to the original version of the piece. Mr Beck
successfully sued for infringement of his making available right; after its appeal was dismissed, Spiegel
Online moved to the BGH, which referred the case to the CJEU.119
The responses of AG Szpunar followed the same approach of the Pelham Opinion, with some significant
addenda. The AG rejected the German court’s argument that Article 167(4) TFUE on the protection and
promotion of cultural diversity in the Union could justify a broader margin of national discretion in
113 Ibid at [89].

114 For a critique see Bernd Jutte and Joao Quintais, ‘Advocate General Turns down the Music – Sampling Is Not a
Fundamental Right under EU Copyright Law’ [2019] EIPR (forthcoming).
115 See particularly at [94-95], where the AG expressly refers to the ECtHR’s doctrine in Ashby Donald (fn 52).
116 Ibid at [94].
117 Ibid at [98] (emphasis added).
118 Ibid at [96].
119 Aside from the points raised also in Funke Medien and Pelham, in Spiegel Online the BGH requested clarification (i)
on the applicability of the quotation exception (Article 5(3)(d) InfoSoc) in case of hyperlinking to an independent file,
with no integration of the quoted text into the new text; (ii) on whether the notion of “lawfully made available to the
public” under the same provision requires the author’s consent; and (iii) on whether the fact that it was possible and
reasonable for Spiegel Online to obtain Beck’s consent hindered the application of the exception on reporting of
current events under Article 5(3)(c).
13

implementing EU copyright directives,120 arguing that the provision sets a general principle, which cannot
turn into a limitation of the Union’s competence in harmonizing subjects linked to culture. Much more
importantly, however, he seemed to directly address those scholarly contributions which advocate for the
introduction of an open-ended balancing clause through the horizontal application of freedom of
expression,121 responding that the integration of EU copyright law with exceptions not provided by law on
the basis of Article 11 CFREU would endanger the harmonization, and be tantamount – in fact - to
introducing a sort of “fair use clause” that would remit the protection of authors to the sensitiveness of
national courts.122 The argument concluded by emphasizing that all fundamental rights have equal value,
deserves equal protection, and are not absolute and to be limited for the protection of other rights and
freedoms, but the balance – once again – is to be set by the legislature.123 In addition, the Opinion clarified
that, regardless of the underlying reasons, the author can decide to enforce copyright at any time. If he does
it within the boundaries of the law, there is no abuse, and the limitation to freedom of expression cannot
be held as unjustified.124
6. THE RESPONSES OF THE GRAND CHAMBER: FRAGMENTED LIGHTS AND
SHADOWS
On July 29, 2019, the Grand Chamber has issued its responses to the three referrals, from the pen of
Rapporteur Ilesic. Compared to the dangerous shift promised by AG Szpunar’s Opinions, the decisions are
characterized by a more balanced approach, and provide interesting elaborations of the main pillars of the
CJEU’s copyright jurisprudence and some long-awaited clarifications on controversial points that have
never been explicitly addressed by the Court.
All the three decisions converge in defining Articles 2 and 3 Infosoc as provisions of full harmonization,
on the basis of their unequivocal language, the unconditional nature of the rights they protect and the high
level of protection requested by the Directive.125 The wording of Articles 5(2) and (3) InfoSoc and the
indications coming from preparatory works, instead, are read as indication of the need to define the scope
of Member States’ discretion on a case-by-case basis, depending on the impact of the degree of
harmonization of exceptions on the smooth functioning of the internal market.126 The Court is also clear
in specifying, however, that this “freedom” is circumscribed by the parameters and general principles of
EU law – such as proportionality, by the conditions set by the provisions regulating the limitations at stake,
by the need to respect the objectives pursued by the directives and to safeguard the effectiveness and fair
balance purpose of the exception, by the three-step-test and, not least, by the principles enshrined in the
Charter, along the lines of Promusicae and its progeny.127 Regardless of the margin of discretion left to
national legislators, national authorities and courts are free to apply national standards of protection of
fundamental rights only to the extent that they are not lower than the level requested by the Charter, and
that the primacy, unity and effectiveness of EU law is not compromised, in line with the Melloni doctrine
and Article 51 CFREU.128
Departing from the overly rigid approach proposed by the AG Opinions, the Grand Chamber delineates a
graduated interplay between fundamental rights and exceptions, based on a blend of literal, contextual and
120 AG Opinion in Spiegel Online (n 94) at [23], which rejects also the argument according to which the importance
attributed to freedom of expression constituted a German cultural specificity.
121 Most recently Christophe Geiger and Elena Izyumenko, ’Towards a European ‘Fair Use’ Grounded in Freedom
of Expression’ [2019] 35(1) American University International Law Review.

122 AG Opinion in Spiegel Online (n 94) at [63].
123 Ibid at [70].
124 Ibid at [80].
125 Funke Medien (n 5) at [29-38]; Pelham (n 6) at [78-85].
126 Funke Medien (n 5) at [39-44]; Spiegel Online (n 7) at [23-38].
127 Funke Medien (n 5) at [45-53]; Spiegel Online (n 7) at [31-38].
128 Funke Medien (n 5) at [30, 32]; Pelham (n 6) at [78, 80]; Spiegel Online (n 7) at [19, 21].
14

teleological arguments. The CJEU still firmly excludes that fundamental rights may justify the introduction
of exceptions beyond the scope of Article 5 InfoSoc, referring to the exhaustive nature of the list, to the
need to apply exceptions consistently, and to the negative impact that their unharmonized proliferation
would have on legal certainty and the functioning of the internal market.129 The fair balance set by the
legislator through Article 5(2) and (3) is ultimately deemed enough to offer protection to freedom of
expression and of press.130 Yet, this consideration does not lead the Court to overemphasize the role of the
legislator as the AG Opinions did, forcing a strict literal reading of the legislative text unless this would
result in a gross violation of the essence of a fundamental right. On the contrary, asked to clarify whether
national courts could depart from a restrictive interpretation of exceptions when needed to respect freedom
of expression, the CJEU confirms the horizontal effects of fundamental rights requested by Promusicae and
subsequent case law,131 reiterates that Article 17(2) CFREU has not conferred any absolute nor inviolable
status to copyright,132 and requests national courts to ensure that the effectiveness of exceptions is
safeguarded, particularly when they aim at protecting fundamental rights and freedoms.133 Compared to
other precedents, the CJEU goes as far as to state that Article 5 InfoSoc does not only provide limitations
to copyright, but confers rights to users, and makes an explicit reference to the ECtHR’s case law to draw
guiding criteria for the balance between copyright and freedom of expression,134 looking at the nature of
the speech and at the importance of the information at stake as in Ashby Donald. 135 The last statement
complements the reference to the common constitutional traditions and to international human rights
instruments as inspiration and background for the Charter’s rights, and thus as a tool for their
interpretation.136
The CJEU adopts a similar approach to define the scope of exceptions, confirming the validity of the
Deckmyn doctrine. In Spiegel Online, the Grand Chamber excludes that the limitation to the right of
reproduction for purpose of reporting current events (Article 5(3)(c) InfoSoc) may be subject to the author’s
prior consent, since such a requirement would frustrate the goal of disseminating the information rapidly
to satisfy the informatory interest of the public, and thus hinder the fulfillment of freedom of expression
and of press.137
Much more interestingly, however, the Court uses of the same interpretative tool to draw the boundaries
of exclusive rights. In Pelham, the key criteria used to define whether a 2-second sample amounts to partial
reproduction under Article 2 InfoSoc are the functions of the right and the need to strike a fair balance
between Article 17(2) CFREU, conflicting rights and the public interest, taking into account that Article
17(2) has not transformed copyright into an absolute and inviolable right.138 The Court qualifies sampling
as a form of artistic expression covered by freedom of the arts (Article 13 CFREU and 10(1) ECHR), 139
which prevails when weighed against copyright, since in this particular case the protection of the producer’s
investment and the opportunity of receiving a satisfactory return are not prejudiced by a sample that is
included in a modified form unrecognizable to the ear in another piece.140 Allowing the producer to prevent
another person from taking a sound sample, even if very short, for the purpose of artistic creation would
129 Funke Medien (n 5) at [56-63]; Pelham (n 6) at [58-64]; Spiegel Online (n 7) at [41-48]

130 Funke Medien (n 5) at [58]; Pelham (n 6) at [59]; Spiegel Online (n 7) at [43].
131 Funke Medien (n 5) at [68]; Spiegel Online (n 7) at [52].
135 (n 102).
137 Spiegel Online (n 7) at [71-73].
138 Pelham (n 6) at [33].
139 Ibid at [35].
140 Ibid at [37]. The same reference to the functions of the right features the definition of the scope of Article 9 Rental,
based on Recitals 2 and 5, which justifies the attribution of a distribution right to phonogram producers with the need
to fight piracy and grant them the possibility to recoup their risky investment [44-46].
15

hinder the exercise of a fundamental right, “ despite the fact that such sampling would not interfere with
the opportunity which the producer has of realising satisfactory returns on his or her investment”.141 For
the first time after the early case law on the essential function doctrine, the CJEU takes as a benchmark for
the balance against fundamental rights and freedoms not a generic copyright entitlement, but the specific
subject matter of the right, defined on a case-by-case basis in light of the function the exclusivity is called
to perform.
7. CONCLUSIONS: WHAT WE STILL MISS AND HOW TO FIX IT
Compared to the dangerous shift and halt anticipated by the AG Opinions, the mid-summer triad of
decisions issued by the Grand Chamber offers answers which are consistent with the CJEU’s copyright
jurisprudence and its opening towards fundamental-right oriented readings. The Opinions already provided
useful arguments and considerations to tackle the gaps in the fair balance doctrine, but the final decisions
make a step forward, including them in a broader framework, aligning them more effectively to the Court’s
copyright doctrines, and complementing them with long-awaited specifications.
The Pelham Opinion made a first attempt to define the reference sources to be used for the definition of
content and scope of the freedoms and rights involved in the balance. The AG, however, stretched the
CJEU’s restrictive Charter-based approach by adding only the ECHR, while marginalizing and ultimately
excluding Member States’ common constitutional traditions. Particularly with regard to Article 17 CFREU,
this answer disregarded the Praesidium’s indications on the multilevel sources that have to be considered
in the interpretation of the provision, and renounced to the possibility of smoothening the conflict between
the CJEU and national constitutional courts in a context where a convergence between national, EU and
ECHR models towards a supranational common core could instead be found. The Grand Chamber opts,
in fact, for a broader reference to Member States’ common constitutional traditions and international
human rights instruments, but it does not go as far as providing a joint interpretation of all the different
sources to construe meaning and scope of the Charter’s rights, still limiting itself to the use of the ECHR
and the ECtHR’s case law.
The CJEU’s triad marks, instead, the welcome return to the functions of copyright as a benchmark to define
the core content of each exclusive right in the strict proportionality assessment, which in the Funke Medien
Opinion was little more than a bait and switch. The AG’s reference, in fact, came down to a generalist
definition that was neither linked to the functions identified by secondary EU sources, nor complemented
by criteria that could help courts to adapt it to the different protected works and market sectors involved.
This left also unsolved the puzzle of the essence of copyright – a particularly problematic gap now that its
violation leads to the radical exclusion of fair balance. On the contrary, the final decisions refer to the
functions of the right, derived from the preambles of the directives, to identify the specific subject matter
of Article 2 InfoSoc and Article 9 Rental, although the move is never qualified as the identification of the
essence of the right. In addition, its use as a benchmark in the fair balance against Article 11 CFREU is left
implicit, leaving the function-based argument underdeveloped, and not property connected in an articulated
fashion to the balancing exercise.
The Court has also decided to take a more balanced approach to the definition of the boundaries of the
Drittwirkung in EU copyright law. For the AG Opinions, the horizontal application of fundamental rights
requested by Promusicae and its progeny represented only a complementary addition to the literal and
contextual interpretation of existing sources, the validity of which vis-à-vis fundamental rights should have
been presumed. A departure from the legislative text could be justified only in cases of gross violation of
the essence of a fundamental right, which happens when there is no other available means for its exercise
and realization. This approach seemed to recall the favor towards the legislative status quo showed by the
141 Ibid at [38].
16

Court when, in past applications of the proportionality test, it admitted the necessity of a compression of
an exclusive right or of an expansion of an exception only if no other means were available to protect the
essence of the conflicting right/freedom. Yet, while the latter was part of a proportionality assessment that
entailed multiple steps, thus allowing more flexibility in the balance and a “softening” of the necessity
requirement when other prongs weighed more towards the conflicting right, the interpretation suggested
by AG Szpunar blocked the interpretative process before this stage could even be reached. With a positive
departure from the Opinions, the CJEU has recalled some of its landmark precedents to reaffirm the need
to provide, in any case, a fundamental-right compliant interpretation of exceptions, which allows
derogations from their strict reading in order to ensure the fulfillment of their functions, particularly when
necessary to protect fundamental rights and freedoms. And while the deference towards the legislature and
internal market goals has still led to exclude that fundamental rights may overcome the borders of Article
5 InfoSoc, the Court has gone as far as to state that the InfoSoc exceptions attribute rights to users,
crystallizing the link between exceptions and CFREU provisions, and opening the gate for a more tailored,
personalized consideration of the specificities of the case in the fair balance exercise. The external borders
of the doctrine, however, are still left in haze.
In brief, the opening of the fourth phase of the CJEU’s fair balance saga brings the consolidation of key
pillars of the doctrine, clarifies – sometimes explicitly, sometimes between the lines - some of its most
controversial aspects, and avoid setting too rigid boundaries to the operation of fundamental rights in EU
copyright law. As typical of the Court’s jurisprudence, however, no attempt is made towards the
construction of a less fact-specific framework which could offer general interpretative guidelines,
particularly for national courts. Funke Medien, Pelham and Spiegel Online are rich of useful indications, but
most of them still remain underdeveloped and fragmented. EU copyright law still misses a unitary, detailed
fair balance doctrine, where all the dots are properly connected, and which can be used as a guidance for
the consistent development of the subject.
To reach this goal, a systematically grounded common thread is needed.
The starting point is, quite intuitively, the identification of the sources to be used when construing content
and structure of copyright as (intellectual) property right under Article 17 CFREU. The Praesidium’s
Explanation specifies that the meaning and scope of the right to property under Article 17 CFREU “are
the same as those of the right guaranteed by the ECHR”, but also adds that property is a “fundamental
right common to all national constitutions”.142 This last note requests, in line with Article 52(4) CFREU,
an interpretation of Article 17 in light of Member States’ common constitutional property traditions, which
have the rank of general principles of EU law under Article 6 TEU. The approach is not alien to the CJEU,
which since Hauer and Nold has developed an articulated constitutional property doctrine based on the very
same principles.143 As explained in greater details elsewhere,144 the three systems and their case law tend to
converge around a notion of social function/obligation (or its functional equivalents) as internal limitation
to property, which produce distinctive effects on the content and structure of the right that may
functionalize it to non-idiosyncratic goals, and offer different degrees of protection or limitations based on
the nature and social relevance of the object owned.
The social function of copyright as property corresponds to the public policy goals for which copyright is
granted protection, defined by EU secondary law and complemented by the CJEU’s case law.145 Exclusive
economic rights as preventive rights are not protected per se, but to provide an “appropriate remuneration”
142 Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/17, 23

144 Broadly in Caterina Sganga, Propertizing European Copyright. History, Challenges and Opportunities (Cheltenham: Edward
Elgar, 2018) 218 ff.

145 Ibid at 227 ff. See also Caterina Sganga and Silvia Scalzini, ‘From Abuse of Right to European Copyright Misuse:
a New Doctrine for EU Copyright Law’ [2016] 48 IIC 405, 425-426.
17

or “reward” to authors, sufficient to protect their dignity and ensure for them a decent standard of living,146
or to ensure a “fair return on investment” or “legitimate profit” to incentivize a sustainable industrial
development and competitiveness of the EU creative sectors, and achieve growth and jobs creation.147
“Fair” and “appropriate” indicate that copyright protection does not cover any possible exploitation of the
work, but only what is necessary to perform these more limited functions.148 At the same time, EU directives
make clear that copyright is also granted to fulfill public interest goals such as the dissemination of works,
access to culture, and the promotion of cultural diversity and identity, which should consequently be
understood not only as grounds for exceptions, but also as social functions of exclusive rights.149
Once clearly articulated, the social function framework may assist the Court in filling up most of the gaps
that are still left uncovered by its case law, and bring some clarity in the fair balance doctrine piecemeal.
The essence of copyright under Article 17(2) CFREU, and consequently the specific subject matter of each
exclusive right, could be identified on the basis of its essential social function as defined by the Directives
and tailored to the particular sector or protected work involved, specifying the principle now just hinted in
the recent Grand Chamber’s triad. Only those acts which ensure revenues that are necessary to reach those
incentivizing goals would belong to such core. And since socio-cultural objectives are also part of the
essential function of EU copyright, any conduct that runs counter to their fulfillment would and should
also be understood as falling outside the scope of protection. This would constitute a foreseeable
benchmark against which the CJEU could conduct its essence check and the strict proportionality
assessment, ensuring legal certainty while providing fact-specific balancing solutions, in line with its early
case law, where the notion of essential function (or specific subject matter) was used to identify the core of
exclusive rights to be preserved in the balance between copyright, fundamental freedoms and competition
law principles.150
The social function doctrine could also assist in interpreting exceptions through the lens of fundamental
rights, spelling out criteria that are now left implicit or omitted in favor of fact-based assessment and
responses. Its intervention could also justify and consolidate, without the risk of further changes, the
embedment in the fair balance framework of (i) the Deckmyn doctrine, which implicitly requires the
legislative introduction of an exception every time this is required by the need to protect a conflicting
fundamental rights;151 (ii) the FAPL doctrine,152 which bans the strict reading of exceptions if this hinders
the performance of its balancing role; (iii) the VOB153 and Ulmer154 doctrine, which demands the extension
by analogy of exceptions to cover conducts which are not strictly included in their scope, but pose the same
balancing needs or constitute a prerequisite for the functioning of the exception. All the three aspects seem
146 InfoSoc, Recital 11; Directive 2012/28/EU on certain permitted uses of orphan works (OWD) [2012] OJ L299/5,
Recital 5.
147 InfoSoc, Recitals 2-4; Directive 2004/48/EC on the enforcement of intellectual property rights [2004] OJ L157/45,
Recitals 1-2; Rental Directive, Recital 11; Council (EC) Directive 91/250/EEC on the legal protection of computer
programs [1991] OJ L122/42, Recital 2; Directive 96/9/EC on the legal protection of databases [1996] OJ L77/20,
Recitals 9, 11–13; Rental I Directive, Recital 8; Directive 2001/84/EC on the resale right for the benefit of the author
of an original work of art [2001] OJ L272/32, Recitals 3, 11, 13;
148 As in the cases supra, fn 78.
149 See, eg, IPRED, Recital 2 (“the widest possible dissemination of works”), OWD, Recital 20 (access to knowledge
or culture), Infosoc, Recitals 12 and 14; OWD, Recitals 18 and 23 (promotion of cultural expression, identity and
diversity).
150 On the side of fundamental freedoms, see Case C-78/70 Deutsche Grammophon Gesellschaft mbH v Metro-SB-Großmärkte
GmbH & Co. KG.Deutsche Grammophon v Metro SB [1971] ECR 487 and the cases cited at fn 79; in the field of
competition law, the main precedents are Joined Cases C-241/91P and C-242/91P, Radio Telefis Eirean (RTE) and
Independent Television Publication Ltd (ITP) v Commission [1995] ECR I-743, and Case C-418/01 IMS Health GmbH & Co
OHG v NDC Health GmbH & C. KG [2004] ECR I-503, [2004] 4 CMLR 1543 .
151 Deckmyn (n 69).
152 FAPL (n 78) at [163].
153 C-174/15 Vereniging Openbare Bibliotheken v Stichting Leenrecht [2016] EU:C:2016:856
154 C-117/13 Technische Universität Darmstadt v Eugen Ulmer KG [2014] EU:C:2014:2196.
18

to be considered and reasserted by the Grand Chamber’s triad. Yet, its final rulings are not clear-cut, nor
do tehy define the maximum degree of flexibility left to courts, thus still exposing the EU copyright
Drittwirkung to controversial decisions and dangerous reassessments.
Several steps have been made, but the most important one is still ahead. The hope is that this new boundary-
setting phase, now opened under relatively good auspices, will be marked by the final consolidation of the
fair balance doctrine, rather than being remembered as the one that worsened the gaps that have made it a
(far too) chameleonic tool.
19

A Decade of Fair Balance Doctrine, and How To Fix It

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A Decade of Fair Balance Doctrine, and How To Fix It

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A Decade of Fair Balance Doctrine, and How to Fix It:

Copyright versus Fundamental Rights before the CJEU from Promusicae to

Laserdisken ApS v Kulturministeriet [2006] ECR I-08089 at [61].

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field of intellectual property (Rental Directive I) [1992] OJ L346/61.

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and Others [2007] ECR I-0000 at [28].

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2.3. Phase Three: taking proportionality seriously (2013-2018)

21 Scarlet Extended (n 19) at [48]; Netlog (n 20) at [46].

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Litigated Disconnecting Injunctions’ (2015) 46(1) IIC 10.

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obligation for Member States to provide a specific remedy.

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EIPR 127, 130.

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[2017] EU:C:2017:264 [15].

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82 Opinion in Funke Medien (n 92) at [29].

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113 Ibid at [89].

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of Expression’ [2019] 35(1) American University International Law Review.

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129 Funke Medien (n 5) at [56-63]; Pelham (n 6) at [58-64]; Spiegel Online (n 7) at [41-48]

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141 Ibid at [38].

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142 Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/17, 23

Elgar, 2018) 218 ff.

a New Doctrine for EU Copyright Law’ [2016] 48 IIC 405, 425-426.

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