On the 29th of July 2019, the Court of Justice of the European Union (“CJEU”) issued a ruling which considers the balance between copyright and the rights to freedom of expression (article 11 of the EU Charter) and to freedom of media (article 11 of the EU Charter), in the context of a preliminary reference from German proceedings involving Funke Medien NRW GmbH and the Bundesrepublik Deutschland.
The German national proceedings resulting in the preliminary reference to the CJEU concerned weekly issued military status reports, which are considered in Germany as classified documents in Germany; referred to as ‘Unterrichtung des Parlaments’ (Parliament briefings). Funke Medien NRW, the website operator of the daily newspaper Westdeutsche Allgemeine Zeitung, applied for gaining access to such restricted documents in 2012, and was refused on the grounds of potentially risking the security of the federal armed forces of Germany. Nonetheless, Funke Medien NRW, through undisclosed means, acquired a significant portion of the documents it initially applied for and thereafter published the same publicly on the ‘Afghanistan-Papiere’ (Afghanistan Papers).
Rather than arguing that such disclosure was a threat to national security, the German Federal Republic sued Funke Medien NRW for infringing the copyright over the said reports. The Higher Regional Court of Cologne classified these military reports as ‘literary works’, however ascertaining whether the reports were indeed ‘original creations’ was still not final. The Federal Republic’s action for an injunction was upheld, however in appeal it was again questioned whether such documents could qualify for copyright protection.
The CJEU explained the criteria for documents to classify as a ‘work’ for the purposes of the Copyright Directive (2001/29), mainly being the creative expression/manifestation of an idea. Such process would include the making of free and creative choices, resulting in originality arising from choice, sequence and combination of the words. In his opinion, Advocate General M. Szpunar maintained that it is essentially impossible for these military reports to be considered ‘intellectual (creative) creations’. However, the CJEU continued that it is entirely at the discretion of the German Courts to determine whether such reports fall under the classification of ‘works’, and that only then will copyright be applicable (the CJEU only clarifies points of law, not of fact).
As its defense, Funke Medien NRW did not rely on the exception of press reproduction, or the quotation exception to copyright (Directive 2001/29, Article 5(3)(c,d)). Instead, it argued that the right to freedom of expression and media justified its actions against the alleged infringement of the copyright.
The questions the Federal German Court posed to the CJEU concentrated on how the Copyright Directive must be interpreted in the light of freedom of information and the press. The three questions specifically focused on:
- Whether any latitude (in terms of national implementation) is allowed by EU law on the exclusive right of authors to reproduce and publicly communicate their work. This exclusive right incorporates the right to make such work publicly available. The question also focused on the implementation of the Copyright Directive’s provided exceptions or limitations.
- Whether and how the EU Charter on Fundamental Rights is to be taken into account when ascertaining the scope of the exceptions or limitations to the above mentioned rights of copyright holders.
- Whether the rights in the EU Charter on freedom of information and freedom of the media justify going beyond the exceptions or limitations provided in the Copyright Directive to the abovementioned rights of copyright holders.
The Court emphasized the need for harmonization, stating that national courts may implement national standards of protection of fundamental human rights, as long as the level of protection provided by the EU, as well as the EU law’s primacy, unity and effectiveness is not compromised. Therefore, whilst a level of discretion is in place, the said discretion cannot negatively affect full harmonization. Whilst the exclusive right of copyright holders to reproduce and publicly communicate their work, including the right to make such work publicly available, entails full harmonization, the exceptions and limitations to these rights allow more discretion. This does not mean that Member State implementation of such exceptions and limitations is unrestricted; adherence to EU law and its general principles is always required.
Whilst the protection of intellectual property rights is enshrined in the EU Charter, such are not absolute and inviolable rights. The CJEU applied the approach of the Strasbourg Court to this case, by deliberating on the balance between copyright and the freedom of expression and media. The CJEU took the view that the nature and information of the ‘speech’ bears significance, especially when concerning political and public interest.
The CJEU ruled that in interpreting the exclusive rights of an author, national courts must respect both the consistent wording and the requirement of the effectiveness of the Copyright Directive, whilst also interpreting the Directive’s provisions in light of the fundamental rights in the EU Charter.
Regarding whether the rights to freedom of information and freedom of the press/media may allow derogations to the author’s exclusive right to reproduction and communication of his work to the public (beyond any exceptions or limitations set in the Copyright Directive), referred to the aspirations of the Copyright Directive and stated that the Copyright Directive‘s aim is to create a fair balance between the interests of the copyright holder and the interests and fundamental rights of users of protected subject matter, as well as public interest. The Copyright Directive itself therefore already provides for and considers the application of the fundamental freedoms of information and expression. The CJEU stated that the Copyright Directive adheres to these fundamental freedoms especially by reference to the exceptions and limitations to copyright protection, which must all be discerned by the national courts in the light of the EU Charter. These exceptions and limitations however must only be resorted to in special cases, which would not conflict with the ‘work’ or the interests of the copyright holder.
Allowing member states to derogate from author’s exclusive rights beyond these exceptions and limitations would endanger the effectiveness of the harmonization and legal certainty sought by the Copyright Directive. Such exceptions and limitations must therefore be applied consistently by Member States, in order to ensure the proper functioning of the internal market. Therefore, freedom of information and freedom of the press are not capable of justifying, beyond the exceptions or limitations set in the Copyright Directive itself, a derogation from the copyright author’s exclusive rights.
By publishing the reports in a structured form, with an introductory note and space for comments and further links, the CJEU concluded that should the military reports be considered ‘works’ by the national German courts, it should follow that the publishing of the works should be considered ‘use of work’ related to reporting. This classification would therefore fall under the exemption regarding the reproduction by the press.
This preliminary reference has further strengthened the CJEU’s unwavering belief that the Copyright Directive (with particular reference to its exceptions and limitations) was indeed drafted in accordance with the rights catered for in the EU Charter and that therefore there is no proper basis to allow derogations beyond those already directly stipulated within the Copyright Directive’s provisions.
Further to the above, it should be noted that the 2001/29 Copyright Directive has been recently amended through Directive 2019/790, mostly in an effort to adapt previous copyright rules to the digital environment, including matters relevant to copyright’s exceptions and limitations.
This article was written by Dr Terence Cassar and Legal Trainee Camille Pellicano.
Disclaimer: This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.