Freedom of Expression as an External Limitation to Copyright Law in the EU: The Advocate General of the CJEU Shows the Way

18 Pages Posted: 6 Dec 2018 Last revised: 15 Dec 2020

See all articles by Christophe Geiger

Christophe Geiger

Luiss Guido Carli University; Université de Strasbourg - CEIPI

Elena Izyumenko

Council of Europe

Date Written: November 29, 2018


This article analyses the recent opinion delivered by the Advocate General Szpunar of the CJEU in the Afghanistan Papers case. It highlights, in particular, four crucial points that stand out in the opinion. First, the adoption of a fundamental rights perspective when evaluating copyright regulation in general. Second, the need to ensure that copyright’s internal mechanisms designed to take into account the fundamental right to free expression (i.e., the idea/expression dichotomy, the criteria for protection such as the originality requirement and the exceptions and limitations) are interpreted in a manner that gives full effect to freedom of expression. The presence of such mechanisms should, third, by no means be understood as immunising copyright from any further freedom of expression scrutiny: according to the Advocate General, if on the contrary fundamental rights are not sufficiently taken into account by the existing copyright system, there are circumstances when the exclusive rights “must yield to an overriding interest relating to the implementation of a fundamental right or freedom” – an explicit admittance (for the first time at EU level) of the admissibility of an external limitation to copyright by freedom of expression. This approach is not called into question by the Advocate General in his two other opinions that shortly followed Afghanistan Papers - Pelham and Spiegel Online. If at first sight he seems to take a more restrictive approach towards the opening of the closed list of limitations in EU copyright law by the use of fundamental rights, he still considers that such an external limitation is possible “in exceptional cases”, specifying that this is in particular the case when the “essence of a fundamental right” is at stake. This article concludes by addressing the final focal point of the Afghanistan Papers opinion - the unacceptability of misusing copyright for the purposes not corresponding to its rationales and its social function. Such reference to the concept of copyright misuse is particular noteworthy since this notion has never been applied before by the EU courts in such an explicit way.

Keywords: “Afghanistan Papers” case, Copyright, Enforcement, EU Law, Human rights, Freedom of expression, Injunctions, Notification, Online infringement

Suggested Citation

Geiger, Christophe and Izyumenko, Elena, Freedom of Expression as an External Limitation to Copyright Law in the EU: The Advocate General of the CJEU Shows the Way (November 29, 2018). 41(3) European Intellectual Property Review 131 (2019), Centre for International Intellectual Property Studies (CEIPI) Research Paper No. 2018-12, Available at SSRN: or

Christophe Geiger (Contact Author)

Luiss Guido Carli University ( email )

Department of Law, Via Parenzo, 11
Rome, Roma 00198

Université de Strasbourg - CEIPI ( email )

Bâtiment LE CARDO, 7 Rue de l'Ecarlate
CS 20024
Strasbourg, 67082


Elena Izyumenko

Council of Europe ( email )

United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics