Opinion of the Advocate General — ECLI:EU:C:2019:16
Date: 2019-01-10
Language of the case: German
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 25 August 2017 — Spiegel Online GmbH v Volker Beck (Case C-516/17) Language of the case: German Referring court Bundesgerichtshof Parties to the main proceedings Applicant: Spiegel Online GmbH Defendant: Volker Beck Questions referred Do the provisions of EU law on the exceptions or limitations to the rights concerned laid down in Article 5(3) of Directive 2001/29/EC 1 allow any latitude in terms of implementation in national law? In which way are the fundamental rights of the Charter of Fundamental Rights of the European Union to be taken into account when determining the scope of the exceptions or limitations provided for in Article 5(3) of Directive 2001/29/EC to the exclusive right of authors to reproduce (Article 2(a) of Directive 2001/29/EC) and communicate to the public their works, including the right to make their works available to the public (Article 3(1) of Directive 2001/29/EC)? Can the fundamental rights of freedom of information (second sentence of Article 11(1) of the Charter) or freedom of the media (Article 11(2) of the Charter) justify exceptions or limitations to the exclusive rights of authors to reproduce (Article 2(a) of Directive 2001/29/EC) and communicate to the public their works, including the right to make their works available to the public (Article 3(1) of Directive 2001/29/EC), beyond the exceptions or limitations provided for in Article 5(3) of Directive 2001/29/EC? Is the making available to the public of copyright-protected works on the web portal of a press undertaking to be excluded from consideration as the reporting of current events not requiring permission as provided for in Article 5(3)(c), second case, of Directive 2001/29/EC, because it was possible and reasonable for the press undertaking to obtain the author’s consent before making his works available to the public? Is there no publication for quotation purposes under Article 5(3)(d) of Directive 2001/29/EC if quoted textual works or parts thereof are not inextricably integrated into the new text — for example, by way of insertions or footnotes — but are made available to the public on the Internet by means of a link in the form of PDF files which can be downloaded independently of the new text? In determining when a work within the meaning of Article 5(3)(d) of Directive 2001/29/EC has already been made available lawfully to the public, should the focus be on whether that work in its specific form was published previously with the author’s consent? ____________ 1 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ 2001 L 167, p. 10.