The Information Society Directive

Geiger, Christophe; Schönherr, Franciska; Stamatoudi, Irini A.; Torremans, Paul

doi:10.4337/9781781952436.00022

Cited by 9 publications

(2 citation statements)

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“…13 Although it is argued that there is a dogmatic difference between the terms exceptions and limitations, they are used interchangeably in the context of this article. See on the differences for example Geiger and Schönherr (2014), p. 438. See further with regard to the role of exceptions and limitations in reaching a balance between copyright and fundamental rights also recital 31, stating that the Directive aims to safeguard a fair balance between both the different categories of rightholders as well as between the rightholders and the users.…”

Section: An Exhaustive List Of Exceptionsmentioning

confidence: 99%

The Court of Justice at the Crossroads: Clarifying the Role for Fundamental Rights in the EU Copyright Framework

Deursen

Snijders

2018

IIC

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In the EU, the complex relationship between copyright and fundamental rights is accommodated in inter alia the Copyright Directive, which uses an internal system of exhaustive exceptions and limitations to copyright. However, it remains unclear whether fundamental rights can serve as autonomous grounds for limiting a copyright. Recently, the German Federal Supreme Court referred preliminary questions to the CJEU in the so-called Afghanistan Papiere case in order for the CJEU to address this unclarity. To sketch the context in which these questions have to be answered, this article explores the tension between copyright and fundamental rights in the EU legal order and identifies the boundaries of the system of exhaustive exceptions and limitations. After describing the EU legislative framework, it offers a typology of the CJEU's case law, before moving onto the ECtHR's Ashby Donald judgment, in which the issue of balancing copyright and other fundamental rights was addressed. It follows that whereas the Copyright Directive and the CJEU do not seem to allow for an external role for fundamental rights, this exact role seems to be required by the ECtHR for certain types of cases. This difference is assessed in light of the relationship of the two courts, which is essentially characterised by a need to prevent divergence between them. It is argued that the pending preliminary questions can probably be answered using the internal system of the Copyright Directive, but that they clearly indicate the limitations and problems connected to the CJEU's current approach towards copyright and fundamental rights.

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Section: An Exhaustive List Of Exceptionsmentioning

confidence: 99%

The Court of Justice at the Crossroads: Clarifying the Role for Fundamental Rights in the EU Copyright Framework

Deursen

Snijders

2018

IIC

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“…In Germany, for instance, the Federal Court of Justice has used the doctrine of implicit consent to allow the use of freely accessible thumbnails by search engines (BGH, April 29, 2010, I ZR 69/08 [“Vorschaubilder”]) and of images made available without authorization of the rights holder by search engines (BGH, October 19, 2011, I ZR 140/10 [“Vorschaubilder II”]). See also (Geiger & Schönherr, , pp. 458–459; Peukert, , pp.…”

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confidence: 99%

Untangling the hyperlinking web: In search of the online right of communication to the public

Quintais

2018

World Intellectual Property

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This article examines the online right of communication to the public under EU law and its interpretation by the Court of Justice of the EU. The focus of the analysis is on the controversial application of the right to hyperlinking, and its implications for the online activities of users and intermediaries. After outlining the international and EU legal framework on the right of communication to the public, the paper advances a conceptual framework for the interpretation of the exclusive right in the online environment, which is both based on, and attempts to bring coherence to, the Court's complex case law. On this basis, the article then explores and critically assesses the main areas of legal uncertainty for the online application of the right and the normative considerations at stake—especially fundamental rights and the promotion of technological development—offering interpretative and legislative solutions for their resolution. The article argues for abandoning the legislative proposals for a new right for press publishers and the so‐called value gap, as both are fundamentally flawed. Instead, reform should focus on redefining the right of communication to the public and preserving safe harbors, especially for hosting providers.

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Forcing Flexibility with Fundamental Rights: Questioning the Dominance of Exclusive Rights

Jütte

2019

EU Internet Law in the Digital Era

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The Information Society Directive

Cited by 9 publications

References 0 publications

The Court of Justice at the Crossroads: Clarifying the Role for Fundamental Rights in the EU Copyright Framework

The Court of Justice at the Crossroads: Clarifying the Role for Fundamental Rights in the EU Copyright Framework

Untangling the hyperlinking web: In search of the online right of communication to the public

Forcing Flexibility with Fundamental Rights: Questioning the Dominance of Exclusive Rights

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