Copyright directive does not fully harmonise the exceptions or limitations. European fundamental rights are not capable of justifying exceptions or limitations not provided for in the directive. In striking the balance between the rights of the author and the rights which derogate from the former, there must be fully adhered to the fundamental rights enshrined in the Charter: there is nothing whatsoever in the wording of the Charter or in the Court’s case-law to suggest that an IP-right is inviolable and must for that reason be protected as an absolute right. Article 5(3)(c) of Directive 2001/29 precludes a national rule restricting the application of the exception or limitation provided for in that provision in cases where it is not reasonably possible to make a prior request for authorisation with a view to the use of a protected work for the purposes of reporting current events. Reference made by means of a hyperlink to a file which can be downloaded independently, is covered by quotation exception. A work has ''already been lawfully made available to the public'' within the meaning of the quotation exception where that work, in its specific form, was previously made available to the public with the rightholder’s authorisation or in accordance with a non-contractual licence or statutory authorisation.
CJEU press release: ''The use of a protected work for the purposes of reporting current events does not, in principle, require a prior request for authorisation. Furthermore, a work may be quoted by means of a hyperlink, provided that that quoted work, in its specific form, was previously made available to the public with the copyright holder’s authorisation or in accordance with a non-contractual licence or statutory authorisation. [...]
In today’s judgment, the Court rules, first of all, that the directive does not fully harmonise the exceptions and limitations to the copyright holder’s exclusive right to reproduce his or her work and to communicate it to the public. The Member States therefore enjoy significant discretion, albeit highly circumscribed, in its transposition and application.
Next, the Court states that freedom of information and freedom of the press, enshrined in the Charter of Fundamental Rights of the European Union, are not capable of justifying, beyond the exceptions or limitations provided for in the directive in that regard, a derogation from the author’s exclusive rights of reproduction and of communication to the public.
As far as concerns the balance which a national court must strike between the exclusive rights of the author and freedom of expression, the Court underlines that the protection of intellectual property rights is not absolute and that it is necessary, where appropriate, to take into account the fact that the nature of the ‘speech’ or information at issue is of particular importance, notably in political discourse and discourse concerning matters of the public interest.
In particular, as regards the possibility for the Member States to allow the use of protected works in connection with the reporting of current events (to the extent justified by the informatory purpose and as long as the source, including the author’s name, is indicated, unless this turns out to be impossible), the Court holds that, in applying such an exception or limitation, the Member States cannot subject the exception or limitation to a requirement for the author’s prior consent. [...]
As far as concerns the quotation exception provided for in the directive, the Court finds that it is not necessary that the quoted work be inextricably integrated, by way of insertions or reproductions in footnotes, into the subject matter citing it. On the contrary, such quotations may also be made by including a hyperlink to the quoted work.
Nevertheless, the use in question must be made in accordance with fair practice, and to the extent required by the specific purpose. [...]
Lastly, the Court states that the exception for quotations applies only if the quotation in question relates to a work which has already been lawfully made available to the public. That is the case where the work, in its specific form, was previously made available to the public with the rightholder’s authorisation or in accordance with a non-contractual licence or statutory authorisation. [...]''
IPPT-version to follow.