Regulating With Rights Proportionality? Copyright, Fundamental Rights and Internet in the Case Law of the Court of Justice of the European Union

Abstract

In addition to giving copyright holders the right to prohibit reproductions, transmissions and performances of the protected works, European Union (EU) copyright law now regulates issues such as linking to content in the internet, blocking internet sites and providing open WiFi networks, among others. This on-going development transforms not only copyright law, but affects deeply the basic ways of communication and interaction on the internet. The transformations in question are not predominantly due to the efforts of the EU legislator, but the judgments of the Court of Justice of the European Union (CJEU). The CJEU has actively built substantive copyright law from a patchwork of Union directives since Infopaq from year 2009. It has resorted to fundamental rights to decide, reason and legitimate the outcomes. The metaphor of a fair balance of rights or proportionality has provided the conceptual framework for the cases. Legal scholars have mostly welcomed or at least accepted the recourse to fundamental rights and balancing. This Chapter will evaluate and critique this development, and in particular how the CJEU has used fundamental rights in contexts relating to copyright in the internet. The key judgments have not been about delivering individual justice to correct an individual wrong. They have not been about rights-based judicial review of secondary legislation either. Albeit resorting to the language of fundamental rights, proportionality and fair balance of rights, they have been about deciding the future trajectories of major information age policy issues the EU legislator has not (yet) addressed. Many of the judgments actively change the on-going trajectories by affecting the fabric of well-established and widespread technological, economic and social practices, such as open WiFi provision and linking in the internet. It is submitted that the judgments demonstrate more generic problems about how the Court frames internet related questions and how fundamental rights are operationalized in EU copyright and private law. The Chapter also notes that compared to member state level, there is neither a full-scale copyright code with its historical traditions and doctrines on the Union level, nor a comprehensive, unhurriedly matured private or procedural law that could provide a meaningful starting point or background for the relevant interpretations. This connotes that fundamental rights assume a novel role in EU copyright law: they do not mostly control and reorient existing doctrines and lines of interpretation like basic rights typically do with regard to copyright on the domestic level. Instead, they actively participate in constructing the doctrines and interpretations in the first place. As copyright, private and procedural law doctrines are thin or even non-existent on the Union level, and the CJEU neither draws from domestic traditions nor inhibits its own interpretations to wait for the Union’s legislative measures or to give room for member state solutions, the role of fundamental rights on the Union level becomes unprecedented. This gap filling and member state pre-empting, or more fundamentally information society regulating role, would require specific quality of the CJEU’s fundamental rights methodology. However, as the discussion below demonstrates, such methodology is in many respects lacking. This questions the whole legitimacy of the judicial development of European information society law.