Key facts of the case:
Request for a preliminary ruling from the Bundesgerichtshof.
Reference for a preliminary ruling — Copyright and related rights — Directive 2001/29/EC — Information Society — Harmonisation of certain aspects of copyright and related rights — Article 5(3) — Exceptions and limitations — Scope — Article 5(3)(c) and (d) — Reporting of current events — Quotations — Use of hyperlinks — Lawfully making available to the public — Charter of Fundamental Rights of the European Union — Article 11 — Freedom of expression and of information.
Outcome of the case:
In the light of all the foregoing considerations, I propose that the Court’s answers to the questions referred for a preliminary ruling by the Bundesgerichtshof (Federal Court Of Justice, Germany) should be as follows:
16) It was in those circumstances that the Bundesgerichtshof (Federal Court of Justice, Germany) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Do the provisions of EU law on the exceptions or limitations to [copyright] laid down in Article 5(3) of Directive 2001/29 allow any discretion in terms of implementation in national law?
(2) In which way are the fundamental rights of the Charter of Fundamental rights of the European Union [(“the Charter”)] to be taken into account when determining the scope of the exceptions or limitations provided for in Article 5(3) of Directive 2001/29 to the exclusive right of authors to reproduce (Article 2(a) of Directive 2001/29) and communicate to the public their works, including the right to make their works available to the public (Article 3(1) of Directive 2001/29)?
(3) Can the fundamental rights of freedom and information (second sentence of Article 11(1) of the Charter) or freedom of the press (Article 11(2) of the Charter) justify exceptions or limitations to the exclusive rights of authors to reproduce (Article 2(a) of Directive 2001/29) and communicate to the public their works, including the right to make their works available to the public (Article 3(1) of Directive 2001/29), beyond the exceptions or limitations provided for in Article 5(3) of Directive 2001/29?
(4) Is the making available to the public of copyright-protected works on the web portal of a press undertaking to be excluded from consideration as the reporting of current events not requiring permission as provided for in Article 5(3)(c), second case, of Directive 2001/29, because it was possible and reasonable for the press undertaking to obtain the author’s consent before making his works available to the public?
(5) Is there no publication for quotation purposes under Article 5(3)(d) of Directive 2001/29 if quoted textual works or parts thereof are not inextricably integrated into the new text — for example, by way of insertions or footnotes — but are made available to the public on the internet by means of a link in the form of PDF files which can be downloaded independently of the new text?
(6) In determining when a work within the meaning of Article 5(3)(d) of Directive 2001/29 has already been made available lawfully to the public, should the focus be on whether that work in its specific form was published previously with the author’s consent?’
59) It follows from the answers I have proposed should be given to the fourth and fifth questions that the use of a work in a way such as that in which the appellant used the respondent’s article at issue in the main proceedings is not covered by the exceptions which the referring court regards as applying to the exclusive rights enjoyed by the author, which is to say those provided for in Article 5(3)(c) and (d) of Directive 2001/29. The referring court also wishes to ascertain, however, whether the use of the article in this way might be justified on grounds relating to respect for the appellant’s fundamental rights, in particular its freedom of expression, guaranteed under Article 11(1) of the Charter, and the freedom of the media, referred to in paragraph 2 of that article. This forms the subject of the second and third questions, which I propose should be analysed together.
62) In my Opinion in Pelham and Haas, I proposed that the answer should, in essence, be that, since copyright law already contains limits and exceptions intended to reconcile authors’ exclusive rights with fundamental rights, in particular freedom of expression, it is usually appropriate to respect the choices made by the legislature in this regard. After all, those choices are based on a process of weighing up the fundamental rights of the users of works against the rights of the authors and other rightholders, which are also protected as a fundamental right, namely the right to property, enshrined in Article 17 of the Charter, paragraph 2 of which expressly mentions intellectual property. That process of weighing up the respective rights concerned is the prerogative of the legislature, the judiciary being required to intervene only exceptionally, in the event of an infringement of the essential content of a fundamental right. ( 30 )
65) I have already made mention, in the introduction to this Opinion, of the importance of freedom of expression and the freedom of the media in a democratic society, so I shall not reiterate the point here. Those freedoms, however, like all fundamental rights, are not absolute or unlimited, as is clear from Article 52(1) of the Charter and Article 10(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), which attach limitations to fundamental rights and lay down the conditions governing the application of those limitations. Copyright may be one of those legitimate limitations on freedom of expression ( 33 ) and that freedom does not, in principle, have primacy over copyright beyond the limitations and exceptions for which copyright law itself provides.
78) Next, if the appellant’s argument is to be understood as meaning that, in the absence of any economic exploitation of the work, the respondent’s copyright, which emanates from his right to property as protected under Article 17 of the Charter, does not justify the limitation of freedom of expression that arises from it, I would observe that the situation in this case is not similar to that in Funke Medien NRW, in which I proposed a similar line of reasoning, ( 39 ) for the reasons set out in points 69 and 70 of this Opinion.
79) Furthermore, in striking a balance between the fundamental rights of the parties to the dispute in the main proceedings, it is important to take into account not only the respondent’s right to property but also any of his other fundamental rights that may be relevant. The event giving rise to the dispute in the main proceedings is the respondent being confronted with beliefs he had expressed in the past in the work at issue. By his action, the respondent sought to preserve his monopoly over the communication of that work to the public in order to be able to affix to that communication the statement that he distanced himself from the beliefs expressed in that work. Article 10 of the Charter establishes freedom of thought, which, according to the express wording of that provision, ‘includes freedom to change … belief’. ( 40 ) I see no reason not to grant that right to politicians. How, then, would the respondent actually be able to exercise his freedom to change his beliefs if a third party were free to publish the article containing his earlier beliefs under his name and without the statement distancing himself from them, thereby suggesting to the public that they are his current beliefs?
80) The respondent is therefore justified in protecting his rights under the Charter ( 41 ) by recourse to the legal instruments available to him, in this instance copyright. If he does so within the limits of the law, there is no abuse and the limitation of the appellant’s freedom of expression that arises from it cannot be regarded as unjustified.
82) In the light of all the foregoing considerations, I propose that the Court’s answers to the questions referred for a preliminary ruling by the Bundesgerichtshof (Federal Court Of Justice, Germany) should be as follows: