The Role of the CJEU in Harmonizing EU Copyright Law
The Role of the CJEU in Harmonizing EU Copyright Law
Raquel Xalabarder 0
0 R. Xalabarder (&) Professor Chair of Intellectual Property, Universitat Oberta de Catalunya , Barcelona , Spain
In recent years, the Court of Justice of the European Union (CJEU) has issued some
interesting and controversial rulings interpreting and further harmonizing EU
copyright law. In addition to shaking up a few traditional concepts that were
regarded as unquestionable, the Court has often applied new criteria, sometimes
foreign, to traditional copyright law. Such criteria include the proportionality
principle, securing the purpose and goal of the provision and a ‘‘de minimis’’
requirement, and these have allowed the Court to introduce some much-needed
flexibility at a time when copyright laws are not always prepared to meet the
challenges posed by technologically changing contexts. In addition, the Court has
often chosen to qualify as ‘‘autonomous concepts of EU law’’ provisions that were
not clearly apparently so in the Directives.
By doing so, the CJEU has found an express route to further strengthen and
harmonize the fragmented and sometimes inconsistent EU copyright acquis,
resulting from the subsidiarity principle that has so far led harmonization in this
area. The concept of communication to the public and the scope of the exceptions
and limitations to exclusive rights provide some good examples of this pattern.
It was not until the InfoSoc Directive 2001/29/EC that the concept of
communication to the public was substantially, but partially,1 harmonized in the
EU – without prejudice to the existing Directives – to cover any transmission of a
work to the public in a non-tangible form, including the ‘‘making available to the
Since then, the Court has had several opportunities to interpret and harmonize
this concept, both in analogue and digital contexts. The concept of ‘‘public’’ is
1 Notice that the harmonized scope does not cover the acts of communication that take place ‘‘in situ’’
(performance, display, etc.).
paramount to interpret the scope of this exclusive right and the Court has
consistently interpreted it restrictively, as requiring an ‘‘undetermined number of
potential listeners’’ (meaning ‘‘persons in general, not restricted to individuals
belonging to a private group’’) and implying ‘‘a fairly large number of persons,’’
(excluding ‘‘groups of persons which are too small or insignificant’’ but allowing for
the public to be ‘‘successive’’ over time).
In addition the Court has turned to other ‘‘complementary criteria’’ to assess the
scope of this right, such as the profit-making nature of the activity (it does not
determine the existence of the act but ‘‘it is not irrelevant’’ and must be taken into
account), the existence of an intentional, deliberate and ‘‘indispensible’’
intervention by the operator (without this intervention, the customers would not be able to
enjoy the work), the existence of a ‘‘new public’’, which was not taken into account
by the copyright holders when they authorised the initial communication, and the
existence of ‘‘new technical means different from that of the original
Through these criteria the CJEU has introduced some ‘‘de minimis’’ requirements
in the interpretation of the exclusive rights. One might argue that the very concept of
‘‘exploitation’’ should already inherently cast some restriction as to which acts fall
within the scope of exclusivity granted to the author; however, this is not always
apparent in copyright laws, and the interpretation given by the CJEU in this area is,
thus, rather innovative.
After an overall assessment of all these criteria, the Court has concluded that the
transmission of TV or radio broadcast signals to a bar or place open to the public
(FAPL), or to the private rooms of a hotel (SGAE) or to the public rooms in a
rehabilitation center (Reha Training) qualify as acts of communication to the public
in all EU States, and so does the online live-streaming of TV broadcasts (TV
Catchup); while, instead, transmission of a radio broadcast to the waiting room of a
private dentist does not qualify as such (Del Corso). Despite the apparent
inconsistency, the different outcomes can be easily explained because of the factual
differences among the cases, not because of different criteria used by the Court.
The same criteria are being used to assess if linking qualifies as an act of
communication to the public.
A link is nothing but a shortcut to access contents online. It may take several
shapes and forms: links may be deep, framed, they may be individually provided,
aggregated or listed as results from a search done by the user (online search engines
cannot be understood without linking), and may be made to lawfully posted contents
as well as to unlawfully posted (infringing) contents. Anything that happens online
involves, in some manner or another, a link.
The qualification of linking as an act of ‘‘communication to the public’’ is
especially delicate because, on the one hand, copyright infringement occurs
increasingly online and linking to this infringing content clearly increases the
damage caused, and on the other hand, this activity will have a direct impact on the
development of new platforms and markets of exploitation as well as on the
individual exercise of other fundamental rights such as freedom of speech,
information and access to culture.
Some may choose to favor more ‘‘nuanced’’ (and complex) answers that take into
account all these parameters,2 possibly having in mind the interests of the copyright
owners and the pressing need to put an end to online ‘‘piracy’’ and websites linking
to infringing contents. Others, instead, may prefer clear and simple rules and avoid
qualifying linking as an exclusive right,3 perhaps also having in mind the myriad of
non-infringing uses that linking entails.
The CJEU has been balancing the several interests at stake when dealing with
links online by applying the criteria stated above. The one criterion especially
important here has been that of a ‘‘new public’’. This requirement, taken from the
Guide to the Berne Convention to justify ‘‘the public communication by a
loudspeaker … of a broadcast of the work’’ as an exclusive act, was first used by
Judge Malenovsky in the 2006 case SGAE v. Rafael Hoteles, and used later – also by
judge Malenovsky – in 2012 (PPL) and in 2014 (Svensson). The application of this
criterion in SGAE and PPL came naturally since both cases dealt with the
distribution of TV broadcast signals to hotel bedrooms. In both cases the Court
concluded in favor of the existence of an act of communication to the public. The
Svensson case, however, dealt with the provision of links to contents available
online, and the Court used the ‘‘new public’’ criterion, together with the
‘‘indispensible intervention’’, to conclude precisely the opposite: no communication
to the public exists as long as the linking (or framing)4 is done to content that is
‘‘freely available’’ online.
In another case still pending (GS Media), the Court will have the opportunity to
reconsider these criteria and expressly decide if the same conclusion applies
regardless of the lawful or unlawful nature of the ‘‘freely available’’ contents posted
at origin.5 So far, Advocate General Wathelet has confirmed so, by stressing the
importance of the ‘‘indispensible intervention’’ criterion (‘‘it is not sufficient that the
hyperlink facilitates or simplifies users’ access to the work’’) over the ‘‘new public’’
criterion (since it can only be applied when the original posting has been authorized
by the right holder). The AG explains that linking is ‘‘both systematic and necessary
for the current internet architecture’’, and imposing a requirement on the person who
provides the link to ascertain if the initial posting was duly authorized would be ‘‘to
the detriment of the proper functioning of the internet’’. The AG further reminds us
that copyright enforcement measures are available against the direct infringer and
can be supported by means of injunctions addressed to the intermediaries – which
are best placed to bring such infringing activities to an end. Furthermore, the
websites providing these links will unlikely be exempted under the strict conditions
of ‘‘mere intermediary’’ and ‘‘merely technical, automatic and passive nature’’ set
for these new web 2.0 ISPs to benefit from the hosting safe harbor (L’Ore´al).
2 As the ALAI supports in its successive opinions. See http://www.alai.org/en/resolutions-and-positions.
3 As the ECS supports in its opinion on the Svensson case. See
4 The same conclusion applies to ‘‘framing,’’ to the extent that there is no ‘‘new public’’ and that there is
no ‘‘new technical means’’ different from the original communication (the initial posting of the work
online). See Svensson (recital 29) and the CJEU Order in BestWater.
5 Notice that the court has already implicitly confirmed so in both Svensson and BestWater.
The opinion of the AG appears to be an elegant, balanced and simple solution
that takes into account the crucial role of linking for the functioning of Internet and
the different interests at stake. It avoids turning every user into either an infringer or
a licensee, and at the same time ensures that effective measures for the enforcement
of copyright may be used against those who knowingly, willingly, and mostly for
profit, infringe copyright.6 Copyright law will only work in the Internet to the extent
that it is accepted and respected by society as a good law. If we want it to survive in
online contexts, copyright rules need to be clear, simple, balanced and in accordance
with social norms. By confirming the AG’s opinion, the CJEU would be doing so.
Other examples of the innovative work done by the CJEU in harmonizing EU
copyright can be found in the realm of limitations and exceptions, under Art. 5
InfoSoc Directive. Despite the lack of formal harmonization in this area, the CJEU
has found here fertile ground for its innovative rulings.
Leaving aside the technical copies in Art. 5(1), the limitations listed in Art. 5
are not mandatory for Member States, but they are obliged to comply with the
three-step test when applying them. This test, as designed and reshaped over time
from Art. 9(2) BC to Art. 5(5) InfoSoc Directive, has been used as a beacon for
the scholarly prescription that, unlike exclusive rights, ‘‘limitations and
exceptions’’ must solely and always be interpreted restrictively. The CJEU has expressly
rejected such a restrictive reading and has even turned to other criteria to interpret
the scope and application of limitations, such as the principle of proportionality in
the enforcement of copyright in a manner that is balanced with other fundamental
rights and public interests at stake, and the need to safeguard the ‘‘effectiveness
and the purpose’’ of the limitation.7 These criteria correspond to general
hermeneutical principles which, nevertheless, had not traditionally been favored
within copyright law to interpret the scope and application of limitations.
But perhaps the most striking feature brought by the CJEU in this area is the
‘‘express’’ harmonization achieved by qualifying the list of limitations in Art. 5 as
‘‘autonomous concepts of EU law’’ and, as such, by imposing its uniform
interpretation throughout the EU, regardless of what national laws convey. In other
words, Member States may choose which limitations to implement in their national
laws, but they cannot freely design their scope: the scope of limitations comes
‘‘standardized’’ as designed in the corresponding paragraph of Art. 5. The CJEU has
concluded so in two paramount cases dealing with the limitations of quotation
(Painer) and parody (Deckmyn). In both cases, national laws had stricter
requirements than those envisioned in Art. 5(3)(d) and (k), respectively; the Court
expressly set aside the national laws and applied the harmonized scope of the
limitations as designed in Art. 5.
This conclusion may be criticized as contrary to the formal harmonization
achieved by the InfoSoc Directive, but it cannot be denied that the final legislative
compromise fell short of the initial ambitious harmonizing goal for limitations, and
that satisfying the needs of the internal market requires further harmonization not
6 The CJEU will specifically consider this issue in two other pending cases dealing with the Pirate Bay
website: Stiching Brein I and II.
7 See Promusicae, Painer, FAPL, Deckmyn and Darmstadt.
only of the rights but also of the exceptions and limitations.8 The CJEU conclusion
is in harmony, if not with the enacting language in the InfoSoc Directive, with its
harmonizing goal and achieves what the EU legislator failed to achieve.
Some call the CJEU an ‘‘activist’’ court, others assert that it is going ‘‘too far’’
and stepping on the role of the EU legislator (which, silently, seems to be quite
content with this). However, taking into account the partial, fragmented and slow
harmonization achieved through the subsidiarity principle, and considering that full
harmonization of copyright in the EU in the form of a single copyright code and title
– as available under Art. 118 TFEU – appears to be a ‘‘long-term target’’,9 one can
only welcome the efforts of the CJEU and acknowledge its fundamental role in
harmonizing EU copyright.
8 See recital 31, ‘‘existing differences in the exceptions and limitations … have direct negative effects on
the functioning of the internal market’’.
9 See the Commission in its Communication ‘‘Towards a modern, more European copyright framework’’