Freedom of Expression as an External Limitation to Copyright Law in the EU: The Advocate General of the CJEU Shows the Way
Centre for International Intellectual Property Studies (CEIPI) Research Paper N°2018-12
European Intellectual Property Review (2019)
17 Pages Posted: 6 Dec 2018 Last revised: 18 Dec 2018
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 right 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. Finally, the Opinion highlights the unacceptability of misusing copyright for the purposes not corresponding to its rationales and its social function.
Keywords: “Afghanistan Papers” case,copyright system, freedom of expression
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