Freedom of expression as an external limitation to copyright law in the EU: the Advocate General of the CJEU shows the way

This article analyses the recent opinion delivered by A.G. 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 rights perspective when evaluating copyright regulation in general. Secondly, 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, thirdly, 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. This approach is not called into question by the Advocate General in his two other opinions that shortly followed Afghanistan Papers—Pelham and Spiegel Online. If at first sight he seems to take a more restrictive approach towards the opening of the closed list of limitations in EU copyright law by the use of fundamental rights, he still considers that such an external limitation is possible "in exceptional cases", specifying that this is in particular the case when the "essence of a fundamental right" is at stake. This article concludes by addressing the final focal point of the Afghanistan Papers opinion—the unacceptability of misusing copyright for the purposes not corresponding to its rationales and its social function. Such reference to the concept of copyright misuse is particular noteworthy since this notion has never been applied before by the EU courts in such an explicit way