BREAKING: CJEU rules that freedom of information and of the press cannot justify a derogation from the rights of copyright holders beyond allowed exceptions and limitations

What these cases had in common is essentially two things:

• First, they required the CJEU to weigh on the interplay between copyright and fundamental rights;
• Second, the Advocate General (AG) in all cases was AG Szpunar.

The reference was made in the context of litigation between German Government and a newspaper over the unauthorized publication, by the latter, of the so called ‘Afghanistan Papers’, that is confidential military reports on the operations of German armed forces in that region in between 2005 and 2012.

The German Federal Court of Justice asked the CJEU to clarify whether and to what extent the assessment of prima facie copyright infringement and the applicability of the exceptions in favour of the press (Article 5(3)(c) of the InfoSoc Directive) and for quotation (Article 5(3)(d) of the same directive) are informed by a fundamental rights analysis. 

More specifically: can copyright protection be trumped by the need to safeguard freedom of the press and freedom of information, and can fundamental rights be directly invoked to prevent enforcement of copyright?

In his Opinion, AG Szpunar doubted at the outset that a military report would be even protectable by copyright.

He also noted that in any case copyright contains internal control mechanisms (exceptions and limitations) and is subject to external limitations (protection of other fundamental rights). With regard to the latter, he submitted that, even where copyright subsists, protection might be denied/restricted on fundamental rights grounds. In his view, this should be the case in the national background proceedings, also because copyright should not be invoked to unduly restrict freedom of information, where no public interest would justify such restriction.

In today’s judgment, the CJEU ruled that freedom of information and the freedom of the press (as also recognized in the EU Charter of Fundamental Rights) cannot justify a derogation from the rights of copyright holders beyond the exceptions and limitations set out in the InfoSoc Directive.

While the text of the ruling is not yet available, the press release states:

In today’s judgment, the Court makes clear that it is for the national court, first of all, to ascertain whether the conditions are satisfied so that military status reports are protected by copyright. Those reports can be protected by copyright only if they are an intellectual creation of their author that reflects the author’s personality and are expressed by free and creative choices made by that author in drafting those reports.  

The Court adds that, if those conditions were satisfied and military status reports could therefore be regarded as ‘works’, freedom of information and freedom of the press are not capable of justifying, beyond the exceptions or limitations provided for in the Copyright Directive, a derogation from copyright, in particular, from the author’s exclusive rights of reproduction and of communication to the public.  

The Court states, in that regard, that the EU harmonisation of copyright effected by that directive aims to safeguard, in particular in the electronic environment, a fair balance between, on the one hand, the interest of the holders of copyright and related rights in the protection of their intellectual property rights guaranteed by Article 17(2) of the Charter of Fundamental Rights of the European Union and, on the other hand, the protection of the interests and fundamental rights of users of protected subject matter, in particular their freedom of expression and information guaranteed by Article 11 of the Charter, as well as of the public interest. The mechanisms allowing for such a balance to be struck in an individual case are contained in that directive itself, in that it provides not only rightholders with exclusive rights but also provides for exceptions and limitations to those rights.  

The Court also adds that, in so far as the Charter contains rights which correspond to those guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’), Article 52(3) of the Charter seeks to ensure the necessary consistency between the rights contained in it and the corresponding rights guaranteed by the ECHR, without thereby adversely affecting the autonomy of EU law and that of the Court of Justice. As is clear from the case-law of the European Court of Human Rights, for the purpose of striking a balance between copyright and the right to freedom of expression, that court has, in particular, referred to the need to take into account the fact that the nature of the ‘speech’ or information at issue is of particular importance, inter alia in political discourse and discourse concerning matters of the public interest. In those circumstances, having also underlined the way in which Funke Medien published the military status reports on the internet, the Court of Justice states that it is not inconceivable that such use may be covered by the exception concerning current events reporting provided for in the Copyright Directive. 

A more detailed analysis will follow as soon as the text of the judgment becomes available.