Forcing flexibility with fundamental rights: Questioning the dominance of exclusive rights

Abstract

The European copyright rules systematically favor a dominance of exclusive rights over permitted uses. Many of such uses are rooted in fundamental rights, but the limited nature of exceptions and limitations prevents the exercise of fundamental rights in certain circumstances. The German Federal Supreme Court has questioned this imbalance with three preliminary references, the potential impacts of which are discussed in this chapter. The Court of Justice of the European Union (CJEU) has used teleological arguments to safeguard the efficiency of the library exception under Art. 5.3(n) of the InfoSoc Directive (Directive 2001/29/EC) and to enable the resale of computer software under Art. 5.1 of the Software Directive (Directive 2009/24/EC). A general discourse in the decisions of the CJEU on the influence of fundamental rights on the interpretation of limitations and exceptions is still absent. The paper discusses the pending preliminary references in the German "Metall auf Metall III", "Reformistischer Aufbruch", and "Afghanistan Papiere" litigations and their potential relevance for the legality of Art. 5 of the InfoSoc Directive. It examines the arguments of the German Constitutional Court and the Federal Supreme Court to identify problems with the current system of limitations and exceptions for uses of protected works in the light of fundamental rights, suggesting that the current system of limitations and exceptions throughout the copyright acquis does not reflect sufficient respect for fundamental rights. Possible scenarios are discussed. Either the Court could propose a more flexible interpretation of the copyright rules, or it could create mechanisms that would permit setting aside copyright rules in cases that are justified by fundamental rights.