Proportionality in the CJEU’s Internet Copyright Case Law: Invasive or Resilient?

Abstract

This paper analyses how the CJEU operates with fundamental rights proportionality in the context of copyright and the information society. It theorizes the underlying issues, especially through the notions of incommensurability, rights inflation and externalities. It will also consider the flexibility rights proportionality could bring to internet copyright. Although the focus of the case law is on copyright, the perspectives and critical theorizations have more generic significance, as proportionality is seen a mode of regulation in complex transnational settings, such as the internet. The argument of the paper is that the CJEU resorts to fundamental rights proportionality stricto sensu excessively, in the absence of an adequate method. Its judgments fill in gaps in Union law with inflated rights, hence expanding the scope of EU law. Disturbingly, the Court does not seem to realize the structuring effects of its rulings on the digital society. The cases may be about private law relations and rights on the surface level, but through their effects, they are more about judicially regulating the digital society through rights proportionality. Rather than reflecting a conscious agenda on the part of the CJEU, the development is evolutive and could be seen as part of two related global megatrends: power shifting to the judiciary and balancing as the paradigmatic judicial method of our time. The problem with rights proportionality, especially in horizontal settings, is that it now operates as an epistemological bottleneck by funnelling knowledge to judicial decision-making through its own selection criteria and biases. It tends to exclude important factors from decision-making, such as legislative aims, a multiplicity of values and interests not (yet) expressed in rights language, as well as social and public goods related to the development of the information society. The chapter recognizes that rights proportionality may bring in flexibility to internet copyright and that it is not always antithetical to legislation; it could even decisively facilitate the efforts of the EU legislator, especially in dynamic transnational environments like the internet. These virtues however do not justify the manner in which the CJEU operates with rights proportionality in its case law.

Keywords: copyright, EU law, proportionality, fundamental rights, balancing, incommensurability, inflated rights, externalities