Working Paper

Viktoria Kraetzig

Copyright as a Rule of
Law Challenge

working papers, Forum Transregionale Studien 31/2023

re:constitution - Exchange and Analysis on Democracy and the Rule of Law in Europe
c/o Forum Transregionale Studien e. V., Wallotstr. 14, 14193 Berlin
Viktoria Kraetzig
Copyright as a Rule of Law Challenge
Working Papers, Forum Transregionale Studien 31/2023
DOI: https://doi.org/10.25360/01-2023-00048
Design: Plural | Severin Wucher© Forum Transregionale Studien under CC BY-SA 4.0
The Forum Transregionale Studien is an institutional platform for the international
cooperation between scholars of different expertise and perspectives on global issues. It isfunded by the Berlin Senate Department for Higher Education and Research, Health andLong-term Care.
Working Papers are available in open access via perspectivia.net, the publication platform of
the Max Weber Stiftung.
re:constitution - Exchange and Analysis on Democracy and the Rule of Law in Europe
is a joint programme of the Forum Transregionale Studien and Democracy Reporting
International, funded by Stiftung Mercator.

Abstract

Copyright regulates speech because every copyright protected work does contain a communication content.
Right holders take advantage of it to silence others: they use their copyright as censorship right. Copyrightdoctrine must therefore allow a case by case balancing to strike a fair balance between freedom of expression
and copyright, both enshrined in the European Charter of Fundamental Rights (CFR) and the European
Convention on Human Rights (ECHR). In the digital age with an overly expanded copyright, it is more
important than ever to prevent a censorious copyright – not only for the standing of copyright in society but
for the sake of the fundamental rights of third parties. Free speech is only free if one can speak with worksof others that are valuable in constitutional terms.

Keywords: Copyright; Freedom of Speech; Censorship; Fundamental Rights; Abuse

Suggested Citation:
Viktoria Kraetzig, "Copyright as a Rule of Law Challenge", re:constitution Working Paper, Forum Transregionale
Studien 31/2023, available at https://reconstitution.eu/working-papers.html

re:constitution Working Paper, Kraetzig

3

Copyright as a Rule of Law Challenge

Viktoria Kraetzig1“Copyright is the uniquely legitimate offspring of censorship.”2

Introduction: copying is speaking
The copyright/free speech conflict is inherent in copyright law:3 copyright grants its owners alimited monopoly on a work, which is also a communication content.4 If third parties copy5
the work, they might infringe copyright while invoking their fundamental right of free speech.6
The conflict arises because free speech doctrine does not distinguish whether someone speaks
with own or other people's words, whether something has been said for the first, second or
hundredth time: speaking is speaking. And so is copying.7
Freedom of speech is not only essential for the individual to express own thoughts but also
has a fundamental function for democracy. It is the air to breathe for the public discourse in a
democratic society governed by the rule of law.8 As enshrined in Article 11 European Charter1

2022-23 re:constitution Fellow (CJEU/University of Cambridge), Postdoc in law (Goethe-Universität, Frankfurt
am Main). E-mail: kraetzig@jur.uni-frankfurt.de. I am truly grateful to the re:constitution team of László Detre,
Dorit Modersitzki, Julia Türtscher and Celia Steffens for all the support in my fellowship year and their editorial
work on this paper.
2
Paul Goldstein, Copyright and the First Amendment, 70 COLUM. L. REV, 983 (1970).
3
Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 Yale L.J. 283, 285 (1996).
4
ABRAHAM DRASSINOWER, WHAT’S WRONG WITH COPYING 8 (2015), arguing that copyright infringement iswrongful because it is compelled speech; IMMANUEL KANT, ON THE UNLAWFULNESS OF REPRINTING, 417(1785), Primary Sources on Copyright (1450-1900), (eds. L. Bently & M. Kretschmer)
https://www.copyrighthistory.org; see Goldstein, supra note 1, at 984: “a monopoly over expression”;
VIKTORIA KRAETZIG, URHEBERRECHT ALS ZENSURRECHT [COPYRIGHT AS CENSORSHIP RIGHT] 7 (2022):„Kommunikationsregulierungsrecht“ [communication regulation law]; on copyright as a monopoly right,
MARIETTA AUER, DER PRIVATRECHTLICHE DISKURS DER MODERNE [THE DISCOURSE ON PRIVATE LAW IN THE
MODERN ERA] 156 (2014).
5
In this article, the term „copy” or “copying” is used both for physically and non-physically uses of copyrightsubject matter.
6
In U.S. copyright law, the debate about the conflict between copyright and the First Amendment was initiatedmuch earlier than in Europe, groundbreaking Nimmer, Does Copyright Abridge First Amendment Guarantees ofFree Speech and Press?, 17 UCLA L. REV, 1180 (1970); see Goldstein, supra note 1; for Europe, see Christophe
Geiger/Elena Izyumenko, Copyright on the Human Rights’ Trial: Redefining the Boundaries of Exclusivity
Through Freedom of Expression, 45 IIC 316 (2014); see also Elena Izyumenko, The Freedom of Expression
Contours of Copyright in the Digital Era: A European Perspective, 19 J. World Intellect. Prop. 115 (2016).
7
Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114
Yale L.J. 535, 567 (2004).
8
RUDOLF SMEND, STAATSRECHTLICHE ABHANDLUNGEN [CONSTITUTIONAL LAW DISCOURSES] 95 (1994);
KONRAD HESSE, GRUNDZÜGE DES VERFASSUNGSRECHTS DER BUNDESREPUBLIK DEUTSCHLAND[FUNDAMENTALS OF THE CONSTITUTIONAL LAW OF THE FEDERAL REPUBLIC OF GERMANY] 68 (1995); JÜRGEN
HABERMAS, FAKTIZITÄT UND GELTUNG [BETWEEN FACTS AND NORMS] 445 (1998).

re:constitution WORKING PAPER, KRAETZIG

4

of Fundamental Rights (CFR) as well as Article 10 European Convention on Human Rights(ECHR) it is one of the very conditions for a democratic rule of law.9 It is vital that the memberof a democratic civil society can not only make free choices but are fully informed about ideas
which be upon their political decisions. A functioning democracy lives from the expectationthat citizens and politicians will come to “better” decisions through communicative exchange
and free information. But speech is only free if one is allowed to speak not only aboutanother's work but with it.10 Communicative exchange depends on interacting with copyrightprotected expressions of others for which one must be able to speak with them.
Because freedom of speech is such a high good in a democracy, the bar for its restriction ishigh. This is where copyright comes into play. For as long as it exists, it has been used to silence
others – such cases are commonly known as “copyright silencing”11. Individuals or even thestate use their exclusive right to suppress unpopular speech. They claim infringement of their
exploitation rights even though they are obviously pursuing other interests that copyrightdoes not protect. Because European copyright law provides only an exhaustive list of
exceptions and limitations to authors' exploitation rights and no balancing of fundamental
rights takes place beyond them, if none of the exceptions apply, an injunction can be granted
without taking freedom of speech into account at all. We are not yet living in an Orwelliannightmare in which copyright results in “memory holes in society’s knowledge”.12 But
censorious uses do happen and can chill the democratic discourse.13 Copyright doctrine musttake them seriously and acknowledge that fundamental rights unfold a horizontal effect inprivate law relationships.14 It should already be made clear at this point: freedom of speechshould by no means always prevail. Very often, a copy might not serve the discourse of ademocratic society but the illegal usage of intellectual property. 15 While the value copying canhave for speech interests for the copier as well as for the audience must be acknowledged,16
it must vice versa be recognized that not every copy serves free speech values.17 Copying thelatest blockbuster will very rarely be vitally important speech: downloading a James Bond film
is convenient for the copier consuming but not beneficial for the public discourse, which is
9Case C-516/17, Spiegel Online GmbH v. Volker Beck, para. 72 (Jul. 29, 2019), https://curia.europa.eu; Case C145/10, Eva-Maria Painer v. Standard Verlags GmbH, para. 113 (Dec. 01, 2011), https://curia.europa.eu; Case
C-283/11, Sky Österreich GmbH v. Österreichischer Rundfunk (Jan. 22, 2013), https://curia.europa.eu; The
Sunday Times v. The United Kingdom, App. No.6538/74, para. 65 (Apr. 26, 1979), https://hudoc.echr.coe.int;
Lingens v. Austria, App. No. 9815/82, para. 41 (Jul. 8, 1986), https://hudoc.echr.coe.int; Castells v. Spain, App.
No. 11798/85, para. 42 (Apr. 23, 1992), https://hudoc.echr.coe.int; Godwin v. The United Kingdom, App. No.
17488/90, para. 39 (Mar. 27, 1996), https://hudoc.echr.coe.int.
10
Critically, see Christopher L. Eisgruber, Censorship, Copyright, and Free Speech: Some tentative skepticism
about the campaign to impose First Amendment restrictions on copyright law, 2 J. ON TELECOMM. & HIGH
TECH. L. 17, 22 (2003).
11
Cathay Y. N. Smith, Copyright Silencing, 106 CLR Online, 71 (2021) with further references.
12
Eric Goldman/Jessica Silbey, Copyright’s Memory Hole, 4 BYU Law Rev. 929 (2019).
13
John Tehranian, The New ©ensorship, 101 Iowa Law Rev. 101 (2015); David McGowan, Why the First
Amendment Cannot Dictate Copyright Policy, 65 U. PITT. L. REV. 281 (2004).
14
C-275/06, Promusicae, para. 68 (Jan. 29, 2008), https://curia.europa.eu (groundbreaking for the fundamental
rights of the CFR).
15
Harper & Row v. Nation Enterprises, 471 U.S. 539, 596 (1985) with reference to Pacific & Southern Co. v.
Duncan, 744 1499–1500 (1984): “Any copyright infringer may claim to benefit the public by increasing publicaccess to the copyrighted work“.
16
Eugene Volokh, Freedom of Speech and the Right of Publicity, 40 HOUS. L. REV 697, 726 (2003).
17
See Tushnet, supra note 6, at 590.

re:constitution WORKING PAPER, KRAETZIG

5

what freedom of speech is supposed to ensure.18 However, the example also shows that there
is no rule without exception: of course, excerpts from the latest James Bond can also be used
to point out gender stereotypes in society. Most of the time, copying is just for fun and not of
public interest – but it can be. Thus, in each individual case, the question must be asked: Does
the copy merely serve to consume or indeed to communicate?19 Is it just for fun or for anargument?
The problem is outlined: copying is speaking. And speaking is a fundamental right. How should
EU copyright law deal with the abuse of this fundamental rights overlap by right holders? This
article wants to provide a blueprint for dealing with a censorious copyright. For this purpose,firstly, it will be shown that the use of the exclusive right to censor is neither a national nor a
new phenomenon. However, it reaches new dimensions in times of digitalization when
copyright is suddenly everywhere: a new culture of communication has developed online that
communicates more and more with the works of third parties. Copyright doctrine must reflect
this digital structural change to live up to its own aspiration of not cutting excessively into
people's communication (1.). Secondly, it will be outlined that such censorious use of
copyright can happen because of copyright’s dogmatic structure. It contains safety valves
which aim to solve the copyright/free speech conflict but all too often they fail. Moreover, it
provides exclusive rights for the authors vis-à-vis mere privileges of users (2.). Subsequently,
the censorious use of copyright to suppress free speech will be tackled according to the
Luxemburg approach to such cases. Following the case law of the Court of Justice of theEuropean Union (CJEU), a case-by-case balancing within the interpretation of the codified
exceptions and limitations of EU law must be undertaken. It may not be carried out as an ad
hoc weighing but must be aligned with the omnipresent principle of proportionality (3.). The
article ends with a conclusion.

1. Censorious use of copyright
For as long as people speak, there have been other people who want to censor them. They
often choose copyright law to do so (1.1). In the 15th century, copyright started of as a
privilege to silence others.20 For the purpose of religious and political surveillance, the grantingof privileges was combined with censorship.21 Nowadays, the majority of censorious cases will
not involve "censorship" in a formal sense as this would only include state pre-censorship. In
Germany, for example, only a pre-censorship by state authorities can fall under the formal
18

Viktoria Kraetzig, Netzsperren – Eigentumsschutz oder Zensur? [DNS blocking - property protection or
censorship?], 3 ZUM 181, 186 (2022).
19
Jannis Lennartz, Digitale Filter zwischen Konsum und Kommunikation [Digital filters between consuming andcommunicating], EuGRZ 482, 487 (2022), who argues that the exercise of the fundamental right to free speech
must be seen in the context of its use [„Verwendungszusammenhang“].
20
See Tehranian, supra note 12, at 148; for a “brief history of the birth of exclusivity, see Konrad Gliściński,
Reclaim the state: public interest in copyright and Modern Monetary Theory, 3 internet&sociedade 89, 91(2022).
21
RONAN DEAZLEY, COMMENTARY ON THE STATIONERS’ ROYAL CHARTER 1557 (2008), in Primary Sources on
Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org; CYNDIA SUSAN CLEGG,
PRESS CENSORSHIP IN ELIZABETHAN ENGLAND, 1997; see also W.S. Holdsworth, Press control and copyright in
the 16th and 17th centuries, Yale L.J. 841 (1920).

re:constitution WORKING PAPER, KRAETZIG

6

concept of censorship in Article 5 (1) sentence 3 of the Basic Law.22 Yet, censorship research
operates with a whole range of censorship terminology, which in turn is subject to constantchange.23 The concept of censorship can therefore be understood much broader – up to an
extended understanding in the sense of a "burden on communication".24 By any means,
copyright law must prevent such censorious use of the exclusive right to suppress speechwhich is valuable in constitutional terms – in the digital age, more than ever (1.2).
1.1 From Howard Hughes to the Duchess of Sussex
The censorious use of copyright law is a global phenomenon and not a new one. The firstexample shows a frequently occurring constellation, namely that a third party acquires
exclusive rights to a copyright protected content to stop its publication: Aviation pioneer andtycoon Howard Hughes formed a company which acquired rights of use to press articles not
to protect the economic value of them but to prevent the publication of a forthcoming
Random House biography about himself. While the District Court held that the company had
a valid copyright claim and preliminarily restrained the defendants from publishing anddistributing the biography,25 the Second Circuit Court held that the public interest shallprevail.26 Another constellation to be found in Germany is that the state uses copyright law tosuppress official documents. In this scenario, civil servants have created a work in the courseof their official duties, and the copyright is owned by their employer: the state.27 A well-known
case of this category is the Funke Medien case, in which the German Ministry of Defence
wanted to stop the publication of military situation reports on a mission in Afghanistan.28 The
reports were considered classified information. One might say: rightly so. Is there not alegitimate interest of the state to oppose the publication of such documents? Definitely - but
not because of a violation of exploitation rights under copyright law. The state hardly wanted
to exploit the military situation reports commercially. Speaking of the military, in the US, Navy
Seals sued for copyright infringement against the publication of photos showing them abusing
Iraqi prisoners.29 There are also constellations in which the state wants to suppress documents
because of a violation of exploitation rights that it previously had to release under theFreedom of Information Act.30 Hence, by invoking its exclusive rights under copyright law, the22Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Nov. 27, 1990, NEUE JURISTISCHE WOCHE[NJW] 1471, 1475.
23
BODO PLACHTA, ZENSUR 13 et seq. (2006).
24
See Plachta, supra note 21, at 18 citing KLAUS PETERSEN, ZENSUR IN DER WEIMARER REPUBLIK 4 (1995).
25
Rosemont Enters., Inc. v. Random House, Inc., 256 F. Supp. 55, 58 (S.D.N.Y. 1966).
26
Rosemont Enters., Inc. v. Random House, Inc., 366 F.2d 303 2d Cir. (1966): „The public interest (in the freedissemination of information about Howard Hughes) should prevail over the possible damage to the copyrightowner“; see also Jeanne C. Fromer, Should the law care why intellectual property rights have been asserted?,
53 Hous. L. Rev. 549, 557 (2015); see Goldstein, supra note 1, at 985.
27
It is to be assumed that the civil servant has at least implicitly granted the employer all rights of use on the
copyright protected subject matter, see Sec. 43 German Copyright Act.
28
Bundesgerichtshof [BGH] [Federal Supreme Court], April 30, 2020, 35 NEUE JURISTISCHE WOCHENSCHRIFT[NJW] 2547; Case C-469/17, Funke Medien v. BRD, (Jul. 29, 2019), https://curia.europa.eu.
29
Four Navy SEALS v. Associated Press, 413 F.Supp.2d 1136, 1141–42 (S.D. Cal. 2005); See Tehranian, supranote 12, at 126 et seq.
30
Landgericht Köln [LG Köln], Nov. 12, 2020, Zeitschrift für Urheber- und Medienrecht Rechtsprechungsdienst[ZUM-RD] 43; Landgericht Köln [LG Köln], Mar. 03, 2019, Zeitschrift für IT-Recht und Recht der Digitalisierung[MMR] 546; Kammergericht Berlin [KG Berlin], Mar. 12, 2014, Zeitschrift für Urheber- und Medienrecht [ZUM]969.

re:constitution WORKING PAPER, KRAETZIG

7

state is deliberately undermining the freedom of information ordered by the Freedom ofInformation Act. You might call it the most abusive abuse of copyright.31 Furthermore, very
often, lawsuits are filed against the publication of letters for copyright infringement, although
it is not their economic protection that is at stake but rather the privacy of the content that is
ought to be protected. In the world of “droit d'auteur” and “Urheberrecht” such uses seem atleast less censorious, because in these copyright regimes, not only commercial but personal
rights are covered by copyright law. To give some examples: Independently of each other, thetwo befriended writers Ernest Hemingway and J.D. Salinger sued for copyright infringement
against the publication of letters in biographies about them.32 That such blocking of the
publication of letters does not serve any economic interests, is obvious.33 They are not to be
published but kept under lock for personal reasons. The most recent case of a censorious useof copyright concerned again a personal letter which the author wanted to stop from being
published: Meghan, the Duchess of Sussex, opposed the publication of a letter addressed toher father by the British press, inter alia, on the grounds of a copyright infringement.34 This
list could go on and on.35 All these cases have one thing in common: the plaintiffs claim
infringement of their exploitation rights under copyright law, although they are in fact notconcerned with them. They are pursuing other interests, in the vast majority of cases such ofa personality rights nature.36 So, in most cases they are not pursuing ill-fitting motivations by
any means, but quite understandable objectives as privacy or security interests. However, if
the objectives pursued are understandable, this does not mean that they can be based on
copyright law. It is not a vehicle for the vindication of privacy or security interests. 37 It cantherefore be summarized: across national borders, the censorial use of copyright ischaracterized by the fact that copyright is used to achieve interests that lie outside its scopeof protection and are therefore to be described as ill motivated from the perspective of
copyright law.38

31

Viktoria Kraetzig, Zensururheberrecht [censorship copyright], 23 GRUR 1707, 1708 (2022).
Hemingway's widow and his estate sued against the author of the biography “Papa Hemingway” whichcontained substantial excerpts from conversations between him and the defendant, Estate of Hemingway v.
Random House, Inc., 53 Misc. 2d 462, 470, 279 N.Y.S.2d 51, 6 (see Note, Copyright, Right to Common Law
Copyright in Conversations of a Decedent, 67 COLUM. L. REV. 366 (1967).; J.D. Salinger sued under copyright
law against the publication of letters in a biography, among others to Ernest Hemingway: in the first instance,
the claim was dismissed, see Salinger v. Random House, Inc, 650 F. Supp. 413, 426 (S.D.N.Y. 1986): "Thecopyright law does not give him protection against that form of injury"; but the second instance upheld it, see
Salinger, 811 F.2d at 100.
33
See Goldstein, supra note 1, at 985.
34
HRH The Duchess of Sussex v. Associated Newspapers, [2021] EWHC 273 (Ch).
35
For more examples from the EU see Kraetzig, supra note 3; for examples from the U.S., see Smith, supra note
10, at 72 et seq.; see Fromer, supra note 24, at 557; Neil Weinstock Netanel, Locating Copyright within the First
Amendment Skein, 54 Stanford Law Review 1, 15 et seq. (2001).
36
Margaret McKeown, Censorship in the Guise of Authorship: Harmonizing Copyright and the First Amendment,
15 Chi. -Kent J. Intell. Prop. 1 (2016): “[…] copyright is becoming a go-to tool to remedy invasions of privacy andother harms.”
37
See McKeown, supra note 34, at 16.
38
There are also other IP rights that are used for purposes that are unrelated to the IP system, most notably
patents (“patent trolls”), see Fromer, supra note 24.
32

re:constitution WORKING PAPER, KRAETZIG

8

1.2 Copyright silencing in the digital age
In our time, the censorious use of copyright is more dangerous than ever because copyrighthas become part of our everyday communication.39 In today’s creator economy, copyright iseverywhere. Its scope has expanded tremendously, especially over the last decades. 40 It
affects “ordinary” people not only every day but probably every hour.41 This is because
copyright covers subject matter – such as computer programs42 or press publications43 – thatit did not in the past.44 Moreover, technical hurdles to producing and sharing works havedisappeared. Once a work has been published, in less than a minute, a perfect digital copy is
produced and can be made available to the other end of the world.45 The marginal cost for it?
Zero. Due to these new dimensions of producing and sharing works, a new culture ofcommunication has developed in the digital environment.46 Copyright has reflected thisstructural change in relation to the threats posed by new distribution possibilities for rightholders. Legislative adjustments in the 1990s in the USA, in the 2000s in the EU, focused solely
on the interests of industry.47 But what about user needs?48 Copyright law itself claims to
strike a balance with conflicting user interests, not to interfere unreasonably with everyday
communication.49 As the explanatory memorandum to the German Copyright Act states
particularly clearly: the idea that the private sphere must remain free of the author's claims isprobably the most deeply rooted.50 If this ideal is to be upheld, copyright law must be adapted
to the new communication culture.
Copyright works have always been part of cultural and social communication processes. Yet,reference culture is experiencing a Golden Age in the time of social media. In everyday life,
people use the works of others for their own communication to a previously unknown extent.
Because of new technical possibilities, works or parts of them can be creatively processed in
new dimensions - by merging them, adding comments or editing them digitally. However, notonly transformative uses of works, such as that of Memes in social media, are flourishing. With
the rise of citizen journalism, a new culture of political communication has developed onlinethat speaks a lot with copyright protected subject matter - namely images. Consider the news
39

Jannis Lennartz/Viktoria Kraetzig, Urheberrechtsschutz digitaler Alltagsspuren [Copyright protection of digital
everyday traces], 3 RuZ 205 (2022).
40
See critically LESSIG, REMIX 269 (2008).
41
Jessica Litman, The Exclusive Right to Read, 13 Cardozo Arts & Entertainment Law Journal 29, 34 (1994); see
Tushnet, supra note 6, at 543.
42
See Art. 1 Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal
protection of computer programs (Codified version), L. 111/16-22.
43
See Art. 15 Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on
copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, L
130/92-125.
44
See Tushnet, supra note 6, at 541.
45
See Netanel, supra note 2, at 285 and 292.
46
Arguing that digital technologies fundamentally changed what freedom of speech, Jack M. Balkin, Digital
Speech and Democrativ Culture: A Theory of Expression for the Information Society, 79 N.Y.U. L. REV. 1 (2004).
47
This refers to the adaptations in the USA through the Digital Millennium Copyright Act (DMCA), and in the EUin particular through the Infosoc Directive; for overbroad DMCA claims, see Rebecca Tushnet, Fair Use’s
Unfifinished Business, 15 Chi. -Kent J. Intell. Prop. 399 (2016).
48
Jessica Litman, Campbell at 21/Sony at 31, 90 WASH. L. REV. 652 (2015).
49
See Recital 3 InfoSoc Directive.
50
BT-Drs. IV/270, 31 [“Im Bewußtsein der Allgemeinheit am stärksten verwurzelt ist wohl der Gedanke, daß derprivate Bereich von Ansprüchen des Urhebers freibleiben müsse”].

re:constitution WORKING PAPER, KRAETZIG

9feed on platforms: images everywhere. Because the threshold for copyright protection is setvery low under CJEU case law,51 and there is even protection for images below the works
threshold under related rights in some EU Member States,52 copyright protection of content
posted on platforms is now the normal case. It is precisely this proliferation of copyrightprotection in the digital environment that can be used by right holders to silence others.
Posting about news and topics of public interest can therefore be burdened by copyright law
more than ever.53
To give an example: The Berlin Regional Court recently ruled that a German public service
broadcaster (the “Südwestrundfunk”) must refrain from making available a simple cell phone
picture of general informational interest due to a violation of exploitation rights. 54 The caseconcerned a blurry cell phone picture showing German Finance Minister Christian Lindner
after a dinner with a real estate entrepreneur and honorary consul of Belarus - in violation of
the Corona rules at that time. The fact that the finance minister did not follow thegovernment's security rules but rather had fun in a celebrity restaurant, was of public
information interest. In parallel with the report of the incident in the radio program, thebroadcaster retweeted the photo as evidence that it went viral online. Now one might think:
Why is this a copyright case? It was just a blurry cell phone picture. But in Germany, every cell
phone picture, no matter how poor the quality, is at least protected as a photograph(“Lichtbild”) under § 72 UrhG;55 the photographer has a 50-year exclusive right to such a
picture under related rights.56 Therefore, the broadcaster was contacted by the photo agency,
which holds the exclusive rights to the photo in dispute, about post-licensing. Out of fear of
facing claims under copyright law, the broadcaster immediately removed the image – at a time
when there was undoubtedly a public information interest in the photo. With other words:
thepublicbroadcaster,
whose
task
it
is
under
Section
30 Media
State Treaty (Medienstaatsvertrag) to enable participation in the information society, wasprohibited from doing so under copyright law. The example shows that copyright law not only
affects the comfort of use of copyright protected subject matter but can hinder politicalcommunication. Cases like this have significance beyond the specific proceeding. They canhave a chilling effect for the public discourse. Because of these new threats for free speech
posed by copyright in the digital sphere, it is more important than ever to deal with the51

Case C-5/08, Infopaq Int v. Danske Dagblades Forening (Jul. 16, 2009), https://curia.europa.eu; Case
C‑393/09, Bezpečnostní softwarová asociace – Svaz softwarové ochrany v. Ministerstvo kultury (Dec. 22, 2010),
https://curia.europa.eu; Joined Cases C‑403/08 & 429/08, Football Association Premier League v. QC Leisureand Karen Murphy v. Media Protection Services (Oct. 04, 2011), https://curia.europa.eu; Eva-Maria Painer,
Case C-145/10; Case C‑310/17, Levola Hengelo BV v. Smilde Foods BV (Nov. 12, 2018), https://curia.europa.eu.
52
For example, under Sec. 72 German Copyright Act or Sec. 87 (1) of the Italian Copyright Act (L. 633/1941).
53
On the fact that copyright does not want an exclusive right on news, see Supreme Court, News Service v.
Associated Press, 248 U.S. 215 (1918): „But the news element— the information respecting current events
contained in the literary production— is not the creation of the writer, but is a report of matters that ordinarily
are publici juris; it is the history of the day“; on copyright in news, see CORNISH/LLEWELYN & ALPIN,INTELLECTUALL PROPERTY: PATENTS, COPYRIGHT, TRADE MARKS AND ALLIED RIGHTS, 9th Ed., 14-003.
54
Landgericht Berlin [LG Berlin] [Regional Court of Berlin], Mar. 29, 2022, Case No. 15 O 419/20.
55
According to § 72 UrhG every photograph, also such that do not qualify as personal intellectual creation, is
protected under related rights.
56
See Lennartz/Kraetzig, supra note 37, at 211 et seq.

re:constitution WORKING PAPER, KRAETZIG

10censorious use of copyright. The exclusive right can be used as a censorship right because of
copyright’s dogmatic structure, which will now be addressed.

2. Pro-author copyright
Copyright doctrine is well aware of the copyright/free speech clash, that’s why it contains
built-in safety valves for free speech.57 Two pillars shall ensure copyright's compatibility withfree speech: the idea-versus-expression distinction and exception instruments for privileged
forms of use (2.1). These speech-protective instruments might sound good in theory, inpractice they often fail. Moreover, copyright grants an overbroad protection for rightsholders
vis-à-vis mere privileges for users of protected subject matter (2.2). Copyright law is thus
inherently imbalanced to the expense of users and their freedom of speech. This is also
reflected in international treaties, which primarily contain protective provisions for rightholders, but hardly any obligations for the contracting states to provide safeguards forconflicting third-party interests.
2.1 Built-in safety valves for free speech
The protection of copyright is designed in such a way that information as such cannot claim
protection.58 Only its embodiment in a “personal intellectual creation” shall enjoy protection
as a work under copyright law. With this copyright doctrine known as the idea/expression
dichotomy,59 copyright law aims to resolve the conflict with freedom of speech: firstly, at its
entrance door since information cannot be protected per se. Secondly, it prevents users of
copyright protected subject matter only from copying the copyright holder's particular formof expression, but not the ideas or facts that are expressed in it. 60 In other words: One canspeak about a copyright work in own words but is not allowed to speak with the work. Yet,
the argument falls short on two aspects.61 The line between idea and expression cannot be
drawn clearly but is blurred since copyright content has an inherent informational content
that cannot be separated from its form of expression: information and form of expression are
inseparably interwoven.62 Where does the idea end, where does the expression begin? When
does a copier use the idea itself, when the expression of it? There is protected subject matterfor which the line is very difficult to draw. For example, the German Federal Court of Justice
has already held that, in the case of a novel as a literary work within the meaning of Section 2(1) No. 1 German Copyright Act, it is not only the concrete wording of the text or the direct
expression of an idea that is protectable under copyright law. In addition, personal
components and form-forming elements of the work, which lie in the course of the plot, in thecharacteristics and distribution of roles of the acting persons, in the arrangement of scenes
57

Eldred v. Ashcroft, 537 U.S. 186, para. 12 (Jan. 15, 2003): “copyright's built-in free speech safeguards”; next
to them also copyright's limited term can be regarded as such.
58
On the consequences if it would not be, see Nimmer, supra note 5.
59
On the doctrine see Abraham Drassinower, A Rights-Based View of the Idea/ Expression Dichotomy in
Copyright Law, 16 Can. J. Law Jurisprud. 3 (2003).
60
See Netanel, supra note 33, at 13.
61
See also critical Alfred C. Yen, First Amendment Perspective on the Idea/Expression Dichotomy and Copyrightin a Work's “Total Concept and Feel”, 38 EMORY L.J. 393 (1989).
62
See Tushnet, supra note 6, at 549; see Netanel, supra note 33, at 19; see Goldstein, supra note 1, at 1016.

re:constitution WORKING PAPER, KRAETZIG

11

and in the “scenery” of the novel, shall enjoy copyright protection.63 The other reason why
the idea/expression dichotomy cannot reconcile copyright with free speech: copying can beneeded for “effective” speech.64 Copies can serve free speech purposes which cannot be
achieved through their description but only verbatim. There are situations in which aparaphrased reproduction of copyright-protected content cannot replace its copying because
it is less authentic, less comprehensible, less effective – it is simply not the original. A classic
example is the video showing the Kennedy assassination: A researcher used the amateur filmthat captured the moment that President Kennedy was shot for a book that dealt criticallywith the commission that investigated the assassination.65 Life Magazine had acquired therights in the film – it sued for copyright infringement. The defendant could not have argued
with the film in the same way, for example by describing the copyrighted frames of the movie,
as he could by showing frames from the film in his book.66 Or think of the successful suitagainst a translation of Hitler’s Mein Kampf to show the danger of Nazi ideology. 67 There areworks that cannot be reworded or described. Sometimes one must speak with a copyrightprotected work to say what needs to be said.
Second, whatever free speech exception mechanisms might be provided for in the various
copyright systems, they have their weaknesses. Flexible judge-elaborated instruments such as
the U.S American fair use doctrine, on the one hand, are driven by particular facts in particularcases. They suffer from much the same problems as the idea/expression dichotomy:
difficulties in drawing the line and unforeseeability.68 The doctrine requires to undertake acase-by-case analysis considering four statutory factors plus any other factor which the court
considers worthy of consideration.69 Such doctrinal elasticity always comes at a price: legal
uncertainty. As copier, you can never know for sure whether your speaking with one others
work is deemed to be “fair”. For this reason, the balancing apparatus of the doctrine inducesconsiderable speaker self-censorship. The legal uncertainty causes a “chilling effect” which
forces individuals to forego exercising their fundamental right of speech for fear of being suedand paying dearly for their own speech.70 But even if your fair use defense is successful, thelawsuit is expensive.71 On the other hand, a lack of flexibility is inherent in closed listapproach’s as provided for in the EU by Article 5 Copyright and Information Society Directive72(InfoSoc Directive) or in the UK by the concept of “fair dealing” in Sections 29 et seq. Copyright,

63

Bundesgerichtshof [BGH] [Federal Court of Justice] Apr. 29, 1999, NEUE JURISTISCHE WOCHENSCHRIFT [NJW]
2022.
64
See Netanel, supra note 33, at 14.
65
Time incorporated v. Bern Geis Associates, Bernard Geis, Josiah Thompson, and Random House, Inc., 293 F.
Supp. 130 (S.D.N.Y. 1968).
66
See Netanel, supra note 33, at 14.
67
Houghton Mifflin Co. v. Noram Publ’g Co., Inc., 28 F. Supp. 676, 678 (S.D.N.Y. 1939).
68
See Tushnet, supra note 6, at 554; see Netanel, supra note 33, at 20; see also critical on the fair use doctrine
William W. Fisher, Reconstructing the Fair Use Doctrine, 101 HARV. L. REV. 1661 (1988).
69
See 17 U.S.C. § 107.
70
See Nimmer, supra note 5, at 1183.
71
See Tushnet, supra note 6, at 545.
72
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation ofcertain aspects of copyright and related rights in the information society, L 167/10-19.

re:constitution WORKING PAPER, KRAETZIG

12

Designs and Patents Act 1988 (CDPA 1988).73 While the codified exceptions may normally beable to solve the copyright/free speech collision, there will always be cases in which theycannot.
2.2 Exclusive right vs. privileges of users
Copyright thinks from the perspective of the right holders. It is copyright-centered andcopyright-oriented. It is designed in such a way that the protection of the author is theprinciple, restrictions of the protection of the author being the exception. According to thecase law of the CJEU, a broad concept of work generously opens the door to copyright.74
Exploitation rights shall cover all typical acts of use, even to the point that the right of making
protected subject matter available to the public (Article 3 (1) InfoSoc Directive) can cover only
indirect acts, such as linking to75 or framing of76 copyrighted content. By way of aninterpretation in conformity with fundamental rights and in light of the 23th Recital of the
InfoSoc Directive, the CJEU thus interprets exploitation rights in a broad way - ensuring a highlevel of protection for rights holders is, after all, the maxim of copyright law. The argumentthat this interpretation serves a high level of protection for authors, is very often a charade.
Do the authors really profit or not rather the publishers etc.? For this article, however, it is
only important that EU copyright law is designed and interpreted pro-author. In contrast, theexceptions and limitations of the InfoSoc Directive privilege narrowly defined acts of use in an
exhaustive catalog. The CJEU has repeatedly stated that although Article 5 of the InfoSoc
Directive is expressly entitled “exceptions and limitations”, it must be noted that its provisions“themselves confer rights on the users of works or other subject matter”.77 However, as is sooften the case, this Luxembourg case law cannot be understood literally. The CJEU means“right” in the sense of a broad understanding of the concept as a “privilege”. 78 It cannot be
concluded from the rulings of the CJEU that the exceptions and limitations of the InfoSoc
Directive are intended to give users substantive rights. Unlike subjective rights, “privileges” or“freedoms” cannot be claimed a priori against the right holder in court but rather only aposteriori in an infringement suit in such a way that they can privilege the act of use inquestion.79 It cannot change the structural imbalance at the expense of the users of protectedsubject matter: they cannot oppose the author's exclusive right with an independent right of
their own, but only with a privilege that leads to a limitation of the scope of the exploitation73

On the concept of fair dealing, see BENTLY ET AL., INTELLECTUAL PROPERTY LAW, 242 et seq. (6th Ed. 2022);
in very rare instances, a defendant can also resist an action for copyright infringement because the use isjustified ‘in the public interest’ within the meaning of Section 171 (3) CDPA 1988.
74
Levola Hengelo BV, Case C‑310/17.
75
Case C-160/15, GS Media v. Sanoma and others (Sep. 08, 2016), https://curia.europa.eu.
76
Case C-392/19, VG Bild-Kunst v. Stiftung Preußischer Kulturbesitz (Mar. 09, 2021), https://curia.europa.eu.
77
Spiegel Online GmbH, Case C-516/17 at para. 54; Funke Medien, Case C-469/17 at para. 70 (see Christophe
Geiger/Elena Izumenko, The Constitutionalization of Intellectual Property Law in the EU and the Funke
Medien, Pelham and Spiegel Online Decisions of the CJEU: Progress, but Still Some Way to Go!, 51 IIC 282, 296(2020); with regard to Art. 5 Abs. 3 lit. n) InfoSoc Directive Case C-117/13, Technische Universität Darmstadt v.
Eugen Ulmer KG (Sep. 11, 2014), https://curia.europa.eu.
78
On the use of the term "right" for privileges, see Wesley Newcomb Hohfeld, Fundamental Legal Conceptions
as Applied in Judicial Reasoning, 23 Yale L.J. 16, 30 (1913); with respect to the exceptions and limitations of the
InfoSoc Directive, see TITO RENDAS, EXCEPTIONS IN EU COPYRIGHT LAW, 72 et seq. (2021).
79
See Rendas, supra note 75, at 75.

re:constitution WORKING PAPER, KRAETZIG

13

right at stake.80 The Luxembourg case law is therefore to be understood merely in such a waythat user interests must be taken into account as a counterweight within the framework of afundamental rights-friendly interpretation of the exceptions and limitations of the InfoSoc
Directive – as in cases of a censorious use of copyright.

3. The Luxemburg approach
Two German cases of censorious uses of copyright have ended up before the CJEU: Funke
Medien81 and Spiegel Online82. These cases are decisive for how the courts of the Member
States must deal with the censorious use of copyright: Firstly, there can be no all-or-nothing
solution in the sense that if copyright is used to silence others, its protection is denied inprinciple. Within the framework of the written exceptions and limitations of the InfoSoc
Directive, there must be a case-by-case balancing of interests (3.1). Secondly, the case-by-casebalancing act must not be misunderstood to mean that the courts shall make an ad hoc
balancing decision. Dogmatically, the balancing is a proportionality test (3.2).
3.1 Case-by-case balancing within the InfoSoc-Directive
As the CJEU held in Funke Medien and Spiegel Online, the exceptions and limitations of Article
5 of the InfoSoc Directive must be interpreted in such a way by the domestic courts that they
ensure a fair balance between the interests of rights holders guaranteed by Article 17(2) CFR
and users of protected subject matter, in particular their freedom of expression andinformation guaranteed by Article 11 of the CFR, as well as of the public interest .83 The Court
further stated that the “freedom of information and freedom of the press, enshrined in
Article 11 of the Charter, are not capable of justifying, beyond the exceptions or limitations
provided for in Article 5(2) and (3) of Directive 2001/29, a derogation from the author’s
exclusive rights of reproduction and of communication to the public, referred to in Article 2(a)and Article 3(1) of that directive respectively.”84 In this respect, the CJEU cited Recital 32 of
the InfoSoc Directive and earlier judgments in which it had already held that the exceptions
and limitations in Article 5 InfoSoc are exhaustive and that member states may not provide
for exceptions beyond the catalogue in their national copyright systems. 85 For dealing withcensorial uses of copyright in domestic law, two things follow from this which will be examinedin more detail in the following.

80

Regarding the German “Schranken”, see STIEPER, RECHTFERTIGUNG, RECHTSNATUR UND DISPONIBILITÄT
DER SCHRANKEN DES URHEBERRECHTS [JUSTIFICATION, LEGAL NATURE AND DISPOSABILITY OF GERMANCOPYRIGHT LIMITATIONS], 541 (2009).
81
Funke Medien, Case C-469/17.
82
Spiegel Online GmbH, Case C-516/17.
83
Spiegel Online GmbH, Case C-516/17 at para. 31 and 42; Funke Medien, Case C-469/17 at para. 51 and 57.
84
Spiegel Online GmbH, Case C-516/17 at para. 49 and 42; Case C-469/17, Funke Medien, Case C-469/17 atpara. 64.
85
The CJEU made reference to Case C-572, Hewlett-Packard Belgium SPRL v. Reprobel SCRL, para. 38-39 (Nov.
12, 2015) https://curia.europa.eu; Case C-435/12, ACI Adam BV and Others v. Stichting de Thuiskopie, Stichting
Onderhandelingen Thuiskopie vergoeding, para. 27 (Apr. 2014), https://curia.europa.eu.

re:constitution WORKING PAPER, KRAETZIG

14

Firstly, it is always necessary to weigh up the conflicting fundamental rights in each individualcase. Therefore, it is not possible for example, as has been suggested in the U.S.,86 to dismiss
suits characterized as censorious cases on the basis of Anti-SLAPP-Law. In the EU, there iscurrently no Anti-SLAPP law, but the Commission has presented its draft for an Anti-SLAPP
Directive in 2022 to tackle such abusive lawsuits.87 Brussels wants to counter SLAPPs(“Strategic lawsuits against public participation”) with procedural protection mechanisms.
These are to be included in the domestic laws governing the course of civil court proceedings,
enabling the courts to dismiss and sanction evidently unfounded and abusive claims at an earlystage.88 However, in the light of the court’s narrow inquiry at this stage, an early adjudicationand dismissal of such suits could not involve a substantive balancing of the conflicting interests
which has to be undertaken according to the Luxemburg case law.89 Or even less: at such a
procedural stage and with a cursory examination only, it might not even be possible for the
courts to determine whether there has been a censorious use of the exclusive right. Instead,national derogations must be interpreted in a way that gives effect to the user interests
reflected in the exceptions and limitations of the InfoSoc Directive while balancing all
conflicting interests in the specific case.
Secondly, this balancing act can only take place within the framework of the interpretation of
the written exceptions and limitations of Article 5 InfoSoc. For the implementation of this caselaw, it must be stressed out that the exceptions and limitations of the InsfoSoc Directive neednot be conceived as exception provisions in the domestic laws of the Member States as well.
This already follows from primary law, according to which directives are binding as to theresult to be achieved but leave the choice of form and methods to the national authorities(Article 288 III TFEU). With other words: directives are blind for the dogmatics of the legal
systems of the Member States. They only ever think in terms of political objectives without
any interest in how these are implemented in national legal systems.90 Since doctrinal
requirements for implementation in domestic law can never be concluded from directives nor
their interpretation by the CJEU, the balancing of fundamental rights must not take place
within the framework of provisions of exceptions in national copyright law. The catalogue ofthe Infosoc Directive is thus to be understood as an exhaustive list of all substantive
derogations from the exclusive exploitation rights of the author that may exist in the EU. The
Member States may implement these derogations dogmatically in whatever way they wish.
This shall be illustrated briefly using German copyright law as an example: The German
Copyright Act provides in Sections 44a et seq. for an exhaustive catalogue of limitations (called"Schranken"). When copyright is used as censorship law, usually none of the codified
limitations can apply since the limitations in question – those on the reporting of “daily”
86

See Smith, supra note 10, at 85; see Goldman/Silbey, supra note 11, at 994; See Tehranian, supra note 12, at
137.
87
See Proposal for a Directive of the European Parliament and of the Council on protecting persons who
engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits
against public participation”) COM (2022) 177 final; the proposal was accompanied by a recommendation to
the Member States based on Article 292 TFEU setting out guidance to address purely domestic cases of SLAPPs(see Com Recommendation (EU) 2022/758 of 27 April 2022).
88
The legal basis for the proposal is Article 81(2) TFEU, which is the legal basis for judicial cooperation in civil
matters having a cross-border implication.
89
With regard to the U.S. fair use doctrine, see Browne v. McCain, 612 F. Supp. 2d.1125, 1130 (C.D.Cal. 2009).
90
See Kraetzig, supra note 3, at 81 et seq.

re:constitution WORKING PAPER, KRAETZIG

15

events (Section 50) and for quotations (Section 51) – are too narrowly drawn for such cases.
According to the case law of the CJEU, an interpretation in conformity with a directive shallnot result in an interpretation of national law contra legem.91 This means that the German
limitations may not be interpreted contra legem92 but a different free speech safety-valve
must be opened for the weighing of interests. According to Section 97 German Copyright Act,a claim for injunctive relief for copyright infringement exists only if copyright is “unlawfully”(“widerrechtlich”) infringed.93 In Germany, this term of “unlawfulness” is to be opened as avalve for the balancing of interests.94 In other Member States in which the exception
provisions are broader designed than in German copyright law, it may of course be possible
for the balancing of interests to take place within their interpretation. If this is not the case, it
might also be an option to invoke misuse doctrine for a case-by-case assessment;95 as anaffirmative defense to the infringement, it renders the right unenforceable.96 In any case,within the interpretation of the national free speech safety-valve, according to the case lawof the CJEU, only those exceptions and limitations may be applied that are laid down in the
catalogue of Article 5 InfoSoc Directive.
The censorious use of copyright can be overcome by two exceptions and limitations: Article 5(3) lit. c) and lit. d) InfoSoc Directive. However, the exception and limitation of Article 5(3) lit.
d) InfoSoc Directive for quotations for purposes such as criticism or review97 will often not
apply because, according to its wording, it only privileges the use of documents which havealready been lawfully made available to the public; frequently, there may be a public interestin the publication of unpublished documents. The exception and limitation for a reporting ofcurrents events under Article 5(3) lit. c) InfoSoc Directive also has a weak point, namely therequirement that the use of works or other subject-matter must take place “in connection
with” the reporting of current events. In its Spiegel Online judgement, the CJEU stated that“the exception or limitation provided for requires only that such use be ‘in connection withthe reporting of current events’”.98 This interpretation of secondary law is problematic insofar
91

Case C-282/10, Maribel Dominguez v. Centre informatique du Centre Ouest Atlantique and others (Jan. 24,2012), https://curia.europa.eu;
Case C-212/04, Konstantinos Adeneler v. Ellinikos Organismos Galaktos (Jul. 04, 2006), https://curia.europa.eu.
92
Unfortunately, the German Federal Supreme Court (BGH) did not take this into account and decided infavour of an extensive interpretation of Sec. 50 German Copyright Act, which seemed to be no longer aninterpretation, but rather a further development of the law by judges, see Bundesgerichtshof [BGH] [Federal
Supreme Court], April 30, 2020, 35 NEUE JURISTISCHE WOCHENSCHRIFT [NJW] 2547; Bundesgerichtshof [BGH][Federal Supreme Court], April 30, 2020, 35 NEUE JURISTISCHE WOCHENSCHRIFT [NJW] 2554; critically see
Viktoria Kraetzig, Reformistischer Aufbruch in Richtung „urheberrechtliche Interessenabwägung“? [Reformist
departure towards a "copyright balancing of interests"?], 9 GRUR 955 (2020).
93
Too little attention is paid to the concept of “unlawfulness” in German case law and academia; this is also
reflected in the fact that Sec. 97 (1) in the official English translation does not even contain the term at all (“Anyperson who infringes copyright or another right protected under this Act may be required by the injured party
to eliminate the infringement or, where there is a risk of repeated infringement, may be required by the
injured party to cease and desist.“).
94
See Kraetzig, supra note 3, at 133 et seq.
95
For German copyright law Haimo Schack, Schutzgegenstand, “Ausnahmen oder Beschränkungen” desUrheberrechts [Subject matter of protection, “exceptions or limitations” to copyright], 7 GRUR 904, 907 (2021).
96
As solution for U.S. law, see Fromer, supra note 24, at 586.
97
For a broader understanding in the light of Art. 10 (1) RBC see ALPIN/BENTLY, GLOBAL MANDATORY FAIR USE(2020).
98
Spiegel Online GmbH, Case C-516/17 at para. 64.

re:constitution WORKING PAPER, KRAETZIG

16

as it must be interpreted in conformity with international law, ergo in accordance with the
Revised Berne Convention (RBC). According to Article 10bis (2) RBC, the work used must
“become seen or heard in the course of the event”. The wording is thus clear that the work
must be perceptible not only “in connection with” but during the current event. This includes,for example, the constellation of reporting on a speech during which a song is playing in the
background.99 The exception and limitation can consequently not apply if the work and thecurrent event are identical. With any other interpretation, third parties could create a current
event eo ipse.
3.2 Balancing as proportionality test
Proportionality has evolved from a constitutional law concept into a general principle oflaw.100 With the case law of the CJEU it has migrated into EU law.101 As structured form of
doctrine, the proportionality test gives the domestic courts a common methodology forevaluating the copyright/free speech conflict. They must carry out the balancing of interests
not as an ad hoc weighting up but as a four-step proportionality test: Is the suppression offree speech for a legitimate purpose? This will always be the case. Just as freedom of speech
is guaranteed by Article 11 CFR and Article 10 ECHR, freedom of property is guaranteed by
Article 17 II CFR and Article 1 of Protocol No. 1 to the ECHR; its protection is to be considereda legitimate purpose. Is it appropriate, necessary and proportionate to achieve it?102 A ceaseand desist order will generally be appropriate and necessary to protect the interests of theright holders. At the heart of the test is the assessment of proportionality,103 in the context ofwhich the conflicting interests copyright versus freedom of speech must be balanced.
According to the case law of the CJEU, the provision of Article 5(3) InfoSoc Directive does notconstitute full harmonization of the scope of the exceptions and limitations it contains.104
Thus, when interpreting national law which implements the exceptions and limitations of the
InfoSoc Directive, the domestic courts are operating in an area in which the actions of theMember State are not fully determined by Union law. This also applies if the Member States
do not implement the exceptions and limitations of the InfoSoc Directive in their national law
in the context of exception provisions, but, for example, as in Germany, in the interpretationof the concept of unlawfulness.105 According to the Åkerberg-Fransson-/Melloni-formula of
the CJEU, in such not fully harmonized areas of EU law, the domestic courts may weigh their
99

This example was provided by the German Copyright Act explanatory memorandum, which contained alimitation that served as a model for the exception and limitation of the InfoSoc Directive, see Entwurf eines
Gesetzes über Urheberrecht und verwandte Schutzrechte (UrhG) der Bundesregierung [Draft Law on Copyrightand Related Rights (UrhG) of the Federal Government], 23.03.1962, BT-Drucks. IV/270.
100
ALEXANDER TISCHBIREK, DIE VERHÄLTNISMÄßIGKEITSPRÜFUNG, METHODENMIGRATION ZWISCHEN
ÖFFENTLICHEM RECHT UND PRIVATRECHT [THE PROPORTIONALITY TEST, METHOD MIGRATION BETWEEN
PUBLIC AND PRIVATE LAW] (2022); Vicki C. Jackson, Constitutional Law in an Age of Proportionality, 124 Yale
L.J. 3096 (2015).
101
See in general Case C-331/88, The Qeen and others v. Fedesa, para. 13 (Nov. 13, 1990),
https://curia.europa.eu; with the Promusicae judgement it has migrated to the relationship inter privatos, seeCase C-275/06, para. 13 (Jan. 29, 2008), https://curia.europa.eu.
102
For the four steps, see Case C-331/88, The Qeen and others v. Fedesa, para. 13 (Nov. 13, 1990),
https://curia.europa.eu.
103
FRANCISCO J. URBINA, A CRITIQUE OF PROPORTIONALITY AND BALANCING, 2 (2017).
104
Spiegel Online GmbH, Case C-516/17 at para. 27; Case C-469/17, Funke Medien, Case C-469/17 at para. 42.
105
See Kraetzig, supra note 3, at 178-188.

re:constitution WORKING PAPER, KRAETZIG

17

national fundamental rights against each other as long as these do not affect the level ofprotection of the CFR.106 For the case-by-case balancing act, no exhaustive catalogue of
criteria can be presented but, at least, a few criteria shall be named that must be included in
the balancing process in any case - pro copyright and pro free speech.
3.2.1 Pro copyrightIf right holders invoke an infringement of their copyright, only copyright-specific interests canweigh for them within the balancing process but non-copyright interests cannot.107 Thus, forexample, state secrecy interests can never be taken into account in favour of the right holders,
as the German Federal Supreme Court found in the Funke Medien case.108 Moreover, within
the balancing process the three-step test as laid down in Article 5 (5) InfoSoc Directive is to betaken into account pro copyright.109 Accordingly, the interpretation of the domestic law must
implement the exceptions and limitations in in such a way that they meet the requirementsof the three-step test, which is mandatory under four international treaties (Article 9 (2) RBC,
Article 13 TRIPS, Article 10 WCT and Article 16 (2) WPPT) and which, through its inclusion in
Article 5 (5) InfoSoc Directive, has also become a part of the copyright Acquis Communautaire,
thus, subject to review by the CJEU.110 The legal instrument of the three-step test must not be
misunderstood in a way that only exception provisions in the formal sense shall meet its
requirements. Rather, the test claims validity for any substantive restriction of the rightholder’s exploitation rights since international and EU law do not think in the doctrinal
categories of their Convention or Member States. If the test refers to “exceptions” in theinternational treaties, and to “exceptions and limitations” in the InfoSoc Directive, this mustnot be interpreted formally in the sense that the test would refer solely to exception
provisions such as the limitations of Sections 44a et seq. German Copyright Act. Rather,according to the three-step test, any substantive restriction on copyright exploitation rights
may only be permissible in certain special cases (1st step) if they do not interfere with thenormal exploitation of the work (2nd step) and do not unreasonably infringe the legitimate
interests of the author (3rd step).111 The first two test levels cannot weigh in favor of the rightholders in the case of a censorious use of the exclusive right. The first step can be interpreted
in such a way that certain special cases must not be defined by the law but can be establishedby case law.112 If the national courts open up safety valves to prevent the censorious use of
copyright and case law develops in this respect, this meets the requirement. The second stepof the test is obviously not affected, because in the case of a censorial use, the intention isindeed to suppress works that are not to be used commercially.113 However, the third step,
106

Case C-399/11, Melloni vs. Ministerio Fiscal, para. 58 (Feb. 26, 2013), https://curia.europa.eu; Case
C-617/10, Åklagare vs. Hans Åkerberg Fransson, para. 29 (Feb. 26, 2013), https://curia.europa.eu.
107
See Kraetzig, supra note 3, at 160.
108
Bundesgerichtshof [BGH] [Federal Supreme Court], April 30, 2020, 35 NEUE JURISTISCHE WOCHENSCHRIFT[NJW] 2547, para. 54.
109
See Kraetzig, supra note 3, at 181-183.
110
Case C-435/12, ACI Adam BV and Others v. Stichting de Thuiskopie, Stichting Onderhandelingen Thuiskopie
vergoeding, para. 39 (Apr. 10, 2014), https://curia.europa.eu; Eva-Maria Painer, Case C-145/10 at para. 110.
111
On the test and its implementation in different Member States, see Martin Senftleben, The International
Three-Step Test, 1 JIPITEC 67 (2010).
112
Martin Senftleben, Grundprobleme des urheberrechtlichen Dreistufentests [Fundamental problems of thethree-step test under copyright law], 3 GRUR 200, 207 (2004).
113
See Kraetzig, supra note 3, at 183.

re:constitution WORKING PAPER, KRAETZIG

18

according to which the legitimate interests of the authors must not be unreasonably infringed,
may weigh pro copyright. This is because in droit d’auteur jurisdictions, in the light of Article
6bis RBC, the “legitimate interests” of the third step must also include those of a moral rights
nature.114 Due to the monistic structure of continental European copyright law, moral rights
must also be considered when the infringement of exploitation rights is claimed as these rights
are inseparably interwoven with one another. However, since the infringement must reach an
unreasonable level under the 3rd step, the three-step test can only be weighed in favor of
copyright in the case of a serious interference with moral rights.
Insofar, since the InfoSoc Directive does not harmonize moral rights of the authors,115 nationalcase law as well as fundamental rights can be taken into account. If provided for in nationallaw,116 an infringement of the author's right of first publication can, in principle, be regarded
as such serious interference with moral rights and thus not be justified. The right of firstpublication protects the interest of authors in keeping the content of the work private byallowing them to decide whether or not to publish it for the first time and thus to make it
known to the public. In the case of an infringement of the right of first publication, only in very
exceptional circumstances, when an outstanding interest of the general public is at stake,freedom of speech will prevail. In Germany, for example, this has been assumed in thefollowing case, which shows how high the bar is set: An “outstanding interest of the generalpublic” was assumed in the submission of a member of the Bundestag, which he had written
in the (East) German Democratic Republic (GDR) as the attorney of a regime critic in criminal
proceedings. The court held that even at the time of publication, the trial had still been able
to serve “as a lesson in the staging of a political trial” in the times of the GDR and contributeto the “political and historical reappraisal of an important part of GDR history”.117 It can thus
be summarised: In the “normal” case, the first publication of copyright-protected subject
matter cannot be justified.
3.2.2 Pro free speech
As precondition for the process of democratic opinion- and will-forming, freedom of speech isone of the very conditions for a democratic rule of law.118 In fact it is vital for it, as the CJEU119
and the ECtHR120 have repeatedly point out in their case law; this is especially true for the
freedom of press. A free press, which enables open political debate, is “the very core of theconcept of a democratic society”121. The Court speaks metaphorically of the “vital public114

MARTIN SENFTLEBEN, COPYRIGHT, LIMITATIONS AND THE THREE-STEP TEST 219 et seq. (2004).
According to Recital 19 InfoSoc Directive moral rights remain outside the scope of the directive.
116
As, for example, in France under Articles L121-2 Code de la propriété intellectuelle, in Poland under Art. 164) Polish Copyright Act of 1994, in Germany under s. 12 German Copyright Act; in Art. 6bis RBC, besides theright to be named and the prohibition of a distortion of the work, there is no corresponding provision reserving
the author the right of first publication.
117
Oberlandesgericht Hamburg [OLG HH] [Higher Regional Court], Jul. 29, 1999, 45 NEUE JURISTISCHEWOCHENSCHRIFT [NJW] 3343.
118
For the connection between democratic legitimation and expressions of the rule of law see MÖLLERS, THE
THREE BRANCHES, 51 et. seq. (2013); see Habermas, supra note 7, at 112 et seq.
119
Case C-516/17, Spiegel Online GmbH, Case C-516/17 at para. 72; Eva-Maria Painer, Case C-145/10 at para.
113; Sky Österreich GmbH, Case C-283/11.
120
The Sunday Times, App. No.6538/74 at para. 65; Lingens, App. No. 9815/82 at para. 41; Castells, App. No.
11798/85 at para. 42; Godwin, App. No. 17488/90 at para. 39.
121
Lingens, App. No. 9815/82 at para. 42.
115

re:constitution WORKING PAPER, KRAETZIG

19

watchdog role of the press”122. Due to this democratic functional dimension of freedom ofcommunication, the Convention States have an extremely limited margin of appreciation withregard to a restriction of the freedoms of communication: „... the national margin of
appreciation is circumscribed by the interest of democratic society in ensuring andmaintaining a free press.“123 Hence, if a Convention State restricts or prohibits an expressionthat serves to participate in political discourse and can have an influence on the democratic
formation of will, Article 10 (2) ECHR leaves the member states all the less room for a
restriction of freedom of speech. In the run-up to elections, the publication of documents that
can influence the voting decision has thus a particularly high democratic relevance. The public
interest can therefore not only result from the content of a publication, but also from the timeof its publication. To illustrate this again with an example: In the Spiegel Online case, apolitician wanted to suppress a manuscript he had written on the decriminalization of sexualacts between minors and adults shortly before the election to the German parliament for
which he was standing. Only some days before the election, he was able to suppress themanuscript in preliminary injunction proceedings on the grounds of a violation of his
exploitation rights, although the public interest in the information was particularly high at thattime. Obviously, he was not concerned with a violation of his exploitation rights at all. He did
not want to exploit the manuscript commercially but to suppress it. Years later – after the case
had ended up in Luxembourg and had been referred back again – the German Federal
Supreme Court (BGH) held that the suppressed documents were of considerable importancefor the political discussion and the formation of public opinion, especially during an election
campaign, and that the politician could therefore not suppress them.124 At that point,
however, it was already too late. At the time when public interest in the information wasparticularly high, namely before the election, the politician could suppress the documents
using his copyright.125
With regard to the copyright/free speech collision, in its Ashby Donald et autres v. France126
decision, the ECtHR developed two factors that shall define the margin to which the domestic
courts are entitled in such cases: as first factor, the character of the information in question isdecisive (“le type d'information”). The balancing decision is substantially determined by theexistence of a public interest in the information in question.127 Neither the Ashby Donald etautres v. France decision nor other judgments of the ECtHR indicate what constitutes a subjectof general interest; there is no clear definition in this respect: “[T]he definition of what
constitutes a subject of general interest will depend on the circumstances of the case.”128
However, this is in the nature of things - there can be no exhaustive definition of what is of122

Godwin, App. No. 17488/90 at para. 39.
Fressoz u. Roire v. France, App. No. 2918/95, para. 45 (Jan. 21, 1999), https://hudoc.echr.coe.int; Radio ABC
v. Austria, App. No. 19736/92, para. 30 (Oct. 20, 1997).
124
Bundesgerichtshof [BGH] [Federal Court of Justice], Apr. 30, 2020, 35 NEUE JURISTISCHE WOCHENSCHRIFT[NJW] 2554, para. 39 and 96.
125
Landgericht Berlin [LG Berlin] [Berlin regional court] Jun. 17, 2014, Case No. 15 O 546/13.
126
Ashby Donald et autres v. France, App. No. 36769 (Jan. 10, 2013), https://hudoc.echr.coe.int.
127
Ashby Donald et autres, App. No. 36769 at para. 39; Neji and Sunde Kolmisoppi v. Sweden, App. No.
40397/12 (Feb. 02, 2013), https://hudoc.echr.coe.int; in general, see Monnat v. Switzerland, App. No.
73604/01, para. 58 (Sep. 09, 2006), https://hudoc.echr.coe.int; Lingens, App. No. 9815/82 at para. 42.
128
Axel Springer v. Germany, App. No. 39954/08, para. 90 (Feb. 07, 2012), https://hudoc.echr.coe.int.
123

re:constitution WORKING PAPER, KRAETZIG

20

public interest. Anything can be potentially political, 129 anything can be relevant for the public
discourse. Whether it is in a specific case is for the domestic courts to determine. It can thus
be concluded: The higher the democratic relevance of a work used by third parties, the moreweight is to be given to the freedom of speech within the case-by-case balancing act. The
courts cannot provide an abstract definition of when or which information is of relevance todemocracy since nothing can be said about the political relevance of a topic in general. Thereis, however, one exception. Reporting on institutionalized politics – what politicians do andthe process that makes politicians – is always of relevance to democracy. As a second relevant
factor for the scope of the margin of appreciation, the ECtHR emphasized the nature of theopinion (“le type de discours”). According to the court, the margin available to Convention
States to restrict freedom of speech is wide if the expression in question concerns economic
matters – commercially motivated communication – without political relevance.130 Thus, aprivileged status of political speech follows from the Strasbourg jurisprudence. In cases of acensorious use of copyright, a suppression of political speech can hardly be justified.

Conclusion
By its very nature, copyright regulates speech. Right holders take advantage of it to silence
others. We therefore need a constant vigilance in regard to copyright doctrine. Not only forthe standing of copyright in society but for the sake of the fundamental rights of third parties.
Copyright can have a chilling effect, thereby threaten the free democratic discourse. National
courts must implement the exceptions and limitations as interpreted by the CJEU in theirnational law. They do not have to implement them in the framework of exceptional provisions,but any safety valves of national law can be opened to strike a fair balance between copyrightand freedom of speech. In the digital age with an overly expanded copyright, it is more
important than ever to prevent a censorious copyright. Free speech is only free if one canspeak with works of others that are valuable in constitutional terms.

129

On the difficulty of defining what is "political", see CARL SCHMITT, DER BEGRIFF DES POLITISCHEN, 19 et seq.
(2009).
130
Ashby Donald et autres, App. No. 36769 at para. 39; in general, see Mouvement Raelien Suisse/Switzerland,App. No. 16354/06, para. 62 and 63 (Jul. 13, 2012), https://hudoc.echr.coe.int; Markt Intern Verlag GmBH and
Klaus Beermann v. Germany, App. No. 10572/83, para. 33 (Nov. 20, 1989); Hertel v. Switzerland, App. No.
25181/94, para. 47 (Aug. 25, 1998).

re:constitution WORKING PAPER, KRAETZIG

21