- The exception within Article 5(3)(d) of the InfoSoc Directive requires one to consider the purpose of the quotation at issue, and
- Fundamental rights like freedom of expression do not allow EU Member States to go beyond the catalogue of exceptions in Article 5 therein to envisage new exceptions or even introduce a general fair use clause.
|Volker Beck||(photo by Mathias Schindler||CC-BY-SA)|
The politician argued successfully at both first instance and on appeal that all this would amount to copyright infringement.
Liberty consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights. These bounds may be determined only by Law.
It is my view that such limitation does not only concern the extent of the authorized reproduction and communication, but also those situations in which the exception applies, that is those in which the author of the report could not be reasonably required to request the authorization of the author of the work reproduced and communicated in the context of said reporting. As such, in my view, a limitation of the exception at issue like the one under German law, not only does not contravene the relevant provision in Directive 2001/29, but is actually in line with the nature and objective of said exception.
It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public.
the quotation exception may not be applied in situations in which, lacking the authorization of the author, a work is made available to the public on the internet, in its entirety, in the form of an accessible and autonomously downloadable file.
such possiblity would be tantatmount to introducing into EU law some sort of "fair use clause", in that basically any use of a work that infringes copyright could rely, in one way or another, on freedom of expression. This way, the protection actually available to the rights of authors would depend on the sensitivity of the judges in each Member State towards freedom of expression, thus transforming any harmonization effort into an unattainable goal.
Let's now see what the CJEU rules. One will have an idea of the fate of Funke Medien, Pelham and Spiegel Online as soon as the first of these three decisions is out.