The limited effects of fundamental rights on copyright exceptions

In three preliminary references the German Federal Supreme Court (BGH) asked the CJEU which role fundamental rights play in the interpretation of exceptions and limitations (E&L) and if fundamental rights could be used to permit the use of subject matter protected by copyright outside existing E&Ls. The cases, for all of which AG Szpunar submitted an opinion, revolve around music sampling (Pelham ), the making available online of controversial publications (Spiegel Online ) and the leaking of classified military reports (Funke Medien ). None of these uses fell squarely within the scope of an exception or limitation under German copyright law, which implements Directive 2001/29/EC (‘InfoSoc Directive’). Whereas in Pelham the German Constitutional Court, when reverting the case back to the BGH had argued that the traditional and restrictive interpretation of the Section 24 of the German Copyright act was incompatible with Article 5 of the German Basic Law because it failed to give sufficient weight to the right of artistic freedom of a music producer, in Spiegel Online a publisher argues that the decontextualized re-publication of a scientific article must be permitted to safeguard the freedom of the media. The inflexibility of E&L and how they have to be interpreted in the light of fundamental rights under the EU Charter of Fundamental Rights (EU Charter) is also subject to the reference in Funke Medien, however AG Szpunar decided to take a different perspective in this casePrivatinės teisės katedraVytauto Didžiojo universiteta