CJEU Case C-590/23 / Opinion

20. Behind those questions of interpretation of a yet-unexplored concept of EU law (‘pastiche’) lies a more fundamental issue, namely that of ‘marrying’ the system introduced by the InfoSoc Directive with the freedom of the arts guaranteed by Article 13 of the Charter. As stated earlier, the BGH envisions the unwelcome possibility that, if the ‘pastiche’ exception were to be interpreted as not covering such artistic practices, given that the other limitations and exceptions which restrict copyright and the related rights might not leave sufficient leeway in that regard, that system would be at odds with that freedom.

21. In order to be as illustrative as possible, I will start by analysing how the copyright and related rights laid down in the InfoSoc Directive, as construed by the Court, impose limitations on artistic reuse of protected material and, consequently, on the freedom of the arts provided by Article 13 of the Charter (A). I will then explain that the ‘pastiche’ exception to copyright and related rights cannot be construed as a ‘catch-all clause’ for such practices, and that the other existing exceptions and limitations offer limited relief in that respect (B). That will lead me to address, finally, the delicate question of the compatibility of the system introduced by the InfoSoc Directive, as it stands, with Article 13 of the Charter (C). ( 11 )

22. I will start by addressing the nature and scope of the limitations that (EU) literary and artistic property impose on the freedom of the arts laid down in Article 13 of the Charter (1), before putting those limitations into perspective (2).

23. Article 13 of the Charter guarantees ‘freedom of the arts’ within the scope of EU law. ( 12 ) That freedom is regarded as an aspect (worthy of its own distinct status) of the freedom of expression guaranteed by Article 11 of the same instrument. ( 13 ) As such, it comprises the rights for everyone to ‘impart information and ideas’ in the form of art ( 14 ) (that is to say, a right to imagine, create and share artworks) ( 15 ) and to ‘receive’ (that is to say, to have access to) them, in each case ‘without interference by public authority’. Thence Article 13 of the Charter provides that ‘the arts … shall be free of constraint’.

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25. At the same time, copyright also limits, by its very nature, the ability of the creators of tomorrow to borrow from existing works for the purpose of creating something new. In other words, it ‘constrains’, to that extent, their own right to ‘impart’ art to the public under Article 13 of the Charter. ( 22 )

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29. At the same time, those rights limit the ability of the creators of tomorrow to reuse existing phonograms (for instance, through ‘sampling’) or fixations of films and broadcasts for the purpose of creating something new. Here as well, they ‘constrain’, to that extent, their right to ‘impart’ art to the public under Article 13 of the Charter. ( 34 )

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37. I underline that that enumeration of exceptions and limitations is meant to be exhaustive. ( 59 ) The Court deduced from that that Member States cannot provide, in their national law, for additional possibilities freely to use protected material. That had the consequence, inter alia, of precluding the ‘free use’ clause initially provided in Paragraph 24(1) of the UrhG, which permitted the creative reuse of protected material where it resulted in a work which conveyed a different overall impression from the source. ( 60 ) Furthermore, according to the Court’s case-law (see Funke Medien NRW ( 61 ) and Spiegel Online ( 62 )), judges also cannot accept further derogations from those rights based on freedom of expression or freedom of the arts, as guaranteed, respectively, in Article 11 and Article 13 of the Charter. The Court considers, in essence, that such additional exceptions would undermine the harmonisation brought about by the InfoSoc Directive and, with it, the internal balance established by the legislature when designing it.

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47. Accordingly, for those interested persons, the ‘pastiche’ exception laid down in Article 5(3)(k) of the InfoSoc Directive functions, as envisioned by the BGH in its first question, as a ‘catch-all clause’ covering potentially any creative (or even simply communicative) expression based on the reuse of protected material, including, indeed, remix, memes, GIFs, mashup, sampling (and so on), covered by Article 11 or Article 13 of the Charter. ( 77 ) Nevertheless, the broad scope of that exception would be compensated, on a case-by-case basis, by the obligation for judges, faced with such a defence against a claim of infringement, to verify, in the light of all the relevant circumstances (extent of the material copied, extent of the creative input, commercial or non-commercial nature of the use, risk of substitution, and so on), whether freely permitting the use at issue would respect a ‘fair balance’ between the rights and interests of the parties, pursuant to the three-step test laid down in Article 5(5) of the InfoSoc Directive. Under that provision, the ‘pastiche’ exception could only apply (i) in ‘certain special cases’ which (ii) ‘do not conflict with a normal exploitation of the work or other [subject matter]’ reused and (iii) ‘do not unreasonably prejudice the legitimate interests of the rightholder’.

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73. That being said, in my view, the legislature aimed, with that exception, more specifically to contribute to that freedom by allowing certain‘derivative’ expressions protected under Article 11 and/or Article 13 of the Charter, namely ‘pastiches’. Indeed, those ‘pastiches’, as defined in point 53 above, are artworks falling under Article 13 of the Charter. They may also be used to express opinions protected under Article 11 thereof. ( 116 )

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76. However, the teleological argument made by Pelham and Others, the German Government and the Commission to support their interpretation of ‘pastiche’ is somewhat different. In essence, they argue that, following the Court’s case-law, Article 5(3)(k) of the InfoSoc Directive should be interpreted in a manner which ‘fully adheres’ to the fundamental rights guaranteed under Article 11 and Article 13 of the Charter. ( 123 ) In that regard, those interested persons claim that, if a wide range of creative (or even simply communicative) practices based on reuse of protected material, including remix, memes, GIFs, mashup, sampling (and so on) found no support in the ‘pastiche’ exception, forms of expression which are both omnipresent in the current digital environment and socially desirable would be at risk. Such an interpretation would put the InfoSoc Directive at odds with those fundamental rights.

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78. Indeed, a Charter-consistent interpretation of a text of EU secondary law presupposes that that text is open to such an interpretation, given its wording, economy and purpose. ( 124 ) Here, as I have already explained, the concept of ‘pastiche’ used in Article 5(3)(k) of that directive, read in a contextual and purposive manner, is not open to the interpretation suggested by those interested persons. Endorsing such a position would be stretching that provision to the point of distortion.

79. As explained in point 37 above, the Court took the view that, because the list of exceptions and limitations laid down in Article 5(1) to (4) of the InfoSoc Directive is exhaustive, judges cannot grant additional derogations from copyright and the related rights on the basis of the fundamental rights guaranteed in the Charter. Similarly, in my view, the Court also cannot distort an existing exception, in the light of freedom of expression, to permit uses it was never designed for. ( 125 ) That would be tantamount, in my view, to an interpretation contra legem. It would compromise the ‘fair balance’ established by the legislature between rightholders and users and the ‘high level of protection’ of the former that that legislature desired. ( 126 )

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96. It follows from the previous section that, on the one hand, the exclusive reproduction rights granted to rightholders over their protected subject matters under Article 2 of the InfoSoc Directive limit the possibility for future creators to reuse those subject matters (or even a small fraction of them) in a perceptible way in new creations. On the other hand, the exceptions and limitations laid down in Article 5 of that directive, including the ‘pastiche’ exception, offer limited room in that regard. The question that remains therefore is that of the compatibility of such a system with the freedom of the arts under Article 13 of the Charter.

97. ‘Derivative’ artistic expressions clearly fall within the scope of Article 13 of the Charter. By restricting those expressions, copyright and the related rights entail limitations of that fundamental freedom. They also limit, indirectly, the public’s right to access those expressions. Nevertheless, freedom of the arts is not absolute. In accordance with Article 52(1) of the Charter, such limitations are permissible provided that they (i) are ‘provided for by law’, (ii) respect the‘essence’ of that freedom and (iii) respect the principle of proportionality, which entails that those limitations (a) ‘genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’ and (b) are appropriate, necessary and proportionate sensu stricto.

98.It is not disputed that the limitations at issue are ‘provided for by law’ (namely the InfoSoc Directive) and respect the ‘essence’ of freedom of the arts, as mentioned in point 26 above. ( 148 ) It is also clear that they meet the ‘need to protect the rights and freedoms of others’. As explained, respectively, in points 24 and 28 above, the copyright granted to authors over their work is a positive measure designed to protect their own right to freedom of the arts under Article 13 of the Charter; the related rights granted to producers of phonograms and films and to broadcasters are there to protect their investment. In addition, both types of rights warrant protection as ‘intellectual property’ under Article 17(2) of the Charter of Fundamental Rights. ( 149 ) Finally, the system laid down in the InfoSoc Directive is an ‘appropriate’ means to achieve the objectives pursued. It is also ‘necessary’ in that regard, since narrower exclusive rights, or broader exceptions and limitations, would not ensure, with the same efficiency, the ‘high level of protection’ of intellectual property sought by the EU legislature.

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105. As stated in section B of the present Opinion, the legislature did seek to establish a ‘balance’ between rewarding the past and supporting the new. The existing exceptions and limitations to copyright and related rights, especially that of ‘quotation’, ‘parody’ and ‘pastiche’, support, in that regard, the creators of tomorrow over the rightholders of yesterday. In my view, there is little doubt that, although presented as optional by the legislature in Article 5(3) of the InfoSoc Directive, Member States are required to transpose them into their national law in order to comply with Article 13 of the Charter. ( 154 )

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107. As we saw, under the current exceptions and limitations, protected material may be freely reused only if it contributes to an overtly imitative artistic creation (‘pastiche’), as a ‘dialogic’ reference to the source work (‘quotation’) or as a humoristic or critical détournement (‘parody’). That system never permits the appropriation of such material, selected ‘merely’ for its aesthetic value, and its reuse in a new creation. That is so irrespective of (i) the extent and value (both creative and economic) of the material borrowed and (ii) the amount of input added by the user and, thus, the ‘creative intensity’ of that new creation. It seems rather obvious that the weight of the claim to intellectual property of the rightholder concerned, under Article 13 and/or Article 17(2) of the Charter, depends on the first parameter, while the weight of the claim to freedom of the arts of the new creator, under Article 13 of the Charter, depends on the second. As the examples given in point 32 above illustrate, there may be a great deal of innovation and cultural value associated with such reuse. ( 155 ) However, the current system does not leave room for such nuances.

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109. As we saw, under the current exceptions and limitations, protected material may be freely reused only if it contributes to an overtly imitative artistic creation (‘pastiche’), as a ‘dialogic’ reference to the source work (‘quotation’) or as a humoristic or critical détournement (‘parody’). That system never permits the appropriation of such material, selected ‘merely’ for its aesthetic value, and its reuse in a new creation. That is so irrespective of (i) the extent and value (both creative and economic) of the material borrowed and (ii) the amount of input added by the user and, thus, the ‘creative intensity’ of that new creation. It seems rather obvious that the weight of the claim to intellectual property of the rightholder concerned, under Article 13 and/or Article 17(2) of the Charter, depends on the first parameter, while the weight of the claim to freedom of the arts of the new creator, under Article 13 of the Charter, depends on the second. As the examples given in point 32 above illustrate, there may be a great deal of innovation and cultural value associated with such reuse. ( 155 ) However, the current system does not leave room for such nuances.

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111. With respect to the system established in the InfoSoc Directive, there is, in my view, a distinction to be made. With respect to the related rights granted to producers of phonograms, films and broadcasts, as interpreted by the Court, that balance is manifestly wrong (1). By contrast, with respect to the copyright granted to authors, that balance is, generally speaking, in compliance with Article 52(1) of the Charter (2). Nevertheless, a certain evolution could be desirable de lege ferenda (3).

112. With respect to the related rights, it seems clear to me that making the ‘recognisable’ reuse, in a new creation, of any extract, even a ‘very short’ one, of subject matters such as phonograms, fixations of films or broadcasts, selected ‘merely’ for their aesthetic properties, subject to the exclusive reproduction rights of the producers or broadcasters concerned does not ensure, to a manifest degree, a ‘fair balance’ between those stakeholders’ right to intellectual property under Article 17(2) of the Charter, on the one hand, and everyone’s right to freedom of the arts under Article 13 of the Charter, on the other. In fact, that is precisely what the BVerfG ruled, in the case in the main proceedings, under the basic rights guaranteed by the German constitution, ( 163 ) with respect to the reuse of ‘samples’. ( 164 )

113. Indeed, in that balancing exercise, freedom of the arts under Article 13 of the Charter should carry significant weight. That is so because, as an emanation of freedom of expression, it ‘constitutes one of the essential foundations’ of a democratic society. Indeed, the right for everyone to take part in the cultural life of the community is ‘one of the basic conditions for [such a society’s] progress’. ( 165 )

114. By contrast, the claim of producers and broadcasters under Article 17(2) of the Charter is less compelling. I recall that the right of intellectual property laid down in that provision must be considered in relation to its function in society. ( 166 ) In other words, the protection of the ‘property’ of the producer or broadcaster is not an end in itself. The exclusive related rights over phonograms, films and broadcasts should be considered in the light of their justification. In fact, as limitations on everyone’s freedom of the arts, those rights must not be given a wider scope than is required by that justification. ( 167 )

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124. On the one hand, the Court could go further than the judgment in Pelham I and adopt, instead, a teleological interpretation of the rather open concept of ‘reproduction in part’ within the meaning of Article 2(c) to (e) of the InfoSoc Directive, ( 178 ) duly taking into account the rationale for the right laid down in that provision, as covering only extracts which could interfere with the opportunity that the producer or broadcaster has of receiving satisfactory returns on his or her investment. Adopting such a de minimis rule would ‘rebalance’ the related rights and, thus, ensure their compatibility with Article 52(1) of the Charter.

127. The claim to intellectual property of the author, under Article 17(2) of the Charter, carries significantly more weight in the balance than that of producers and broadcasters, discussed in the previous section. In fact, the function of the author’s intellectual property over his or her ‘works’ is to protect his or her own right to freedom of the arts under Article 13 of the Charter. It is not merely about protecting an economic investment. There are other, more personal and fundamental reasons connecting an author to the fruits of his or her creation, and explaining why he or she would legitimately wish to have a say on its reuse by other creators. ( 180 )