Ten Hut! - CJEU Decides on Derogation from Authors' Rights and Copyright Infringement in Relation to Military Reports

This blog discussed the issues of balancing the freedom of expression in the early part of this year (with more on news reporting at the CJEU here), and the issue has still lingered in the backlog of cases faced by the CJEU. The balance between protecting works, while affording the ability to review and use those works for specific , is a difficult one to strike, but one that the courts often have to face. Following an Advocate General's opinion in January this year, the CJEU were now tasked with clarifying this issue, and handed down their decision not too long ago.

As a very brief primer, the case of Funke Medien NRW GmbH v Bundesrepublik Deutschland concerned the publication of confidential military reports by Funken online by the daily newspaper Westdeutsche Allgemeine Zeitung (having obtained them through unknown means). The reports detailed the deployment of the German military abroad, and various developments at the locations. Due to the sensitive nature of the reports, the Republic of Germany took Funken to court for copyright infringement, with the matter ultimately ending up with the CJEU.

The referring court asked the CJEU three questions, the first of which asked "…whether Article 2(a) and Article 3(1) of Directive 2001/29 first, and Article 5(3)(c), second case, and (d) of [the] Directive… second, must be interpreted as constituting measures of full harmonisation".

The Court considered the matter very extensively in its judgment, concluding that only Articles 2 and 3 of the Directive constituted measures of full harmonization. Without getting too much into the depths of this question, the matter revolved around the differences in the provisions in terms of wording, where Articles 2 and 3 were unequivocal in their remit, while Article 5 left some room for Member State specific implementation.

In short, the Court answered the question as "…Article 2(a) and Article 3(1) of Directive 2001/29 must be interpreted as constituting measures of full harmonisation of the scope of the exceptions or limitations which they contain. Article 5(3)(c), second case, and (d) of Directive 2001/29 must be interpreted as not constituting measures of full harmonisation of the scope of the relevant exceptions or limitations".

The Court then jumped to the third question, which asked "…whether freedom of information and freedom of the press, enshrined in Article 11 of the Charter [of Fundamental Rights of the European Union], are 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, respectively, in Article 2(a) and Article 3(1) of that directive".

To kick things off, the Court noted that the exceptions in Article 5 are exhaustive, but those will need to be balanced with the interests of the rightsholder as well. The balancing is required through the transposition of the exceptions into national law. The Court did mention that "…the exceptions and limitations provided for in Article 5(3)(c)… (d)… are specifically aimed at favouring the exercise of the right to freedom of expression by the users of protected subject matter and to freedom of the press… over the interest of the author in being able to prevent the use of his or her work, whilst ensuring that the author has the right, in principle, to have his or her name indicated". The use by users, however, cannot interfere with the author's normal use of the work.

Following this the Court determined that "…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".

The Court moved onto the second question, which asked "…whether, in striking the balance which it is incumbent on a national court to undertake between the exclusive rights of the author referred to in Article 2(a) and Article 3(1) of Directive 2001/29 on the one hand, and, on the other, the rights of the users of protected subject matter referred to in Article 5(3)(c), second case, and (d) of that directive, the latter derogating from the former, a national court may depart from a restrictive interpretation of the latter provisions in favour of an interpretation which takes full account of the need to respect freedom of expression and freedom of information, enshrined in Article 11 of the Charter". To put into other terms, can national courts go with a less restrictive interpretation of the rights given to users over protected works, particularly in the light of Funken not adding a summary of the document to the article (but merely linked to it).

When Member States transpose EU legislation into national legislation, this has to be done without conflict with the EU laws themselves, including through the interpretation used to devise national legislation. This means that any derogation from the provisions would have to be interpreted strictly. With regards to Article 5, the exceptions and limitations in it have to be protected in terms of their efficacy.

The Court continued that the Charter does expressly protect intellectual property rights, but those rights are by no means superior to everything, and can be broken given the appropriate exception. This means that both the rights held by the rightsholders, and the ability for users to use the materials for legitimate, fair purposes, have to be appropriately balanced.

The Court saw that Funken's use could fall under the exception of news reporting, due to the structure it was presented in, the notes added in and the further links given within the article. The specifics of which would have to be determined by the referring court in the end.

The answer to the second question therefore is "…that, in striking the balance which is incumbent on a national court between the exclusive rights of the author… on the one hand… the rights of the users of protected subject matter… the latter of which derogate from the former, a national court must, having regard to all the circumstances of the case before it, rely on an interpretation of those provisions which, whilst consistent with their wording and safeguarding their effectiveness, fully adheres to the fundamental rights enshrined in the Charter".

The case follows the other news reporting related cases that have come before it through the CJEU in recent times, and doesn't provide many surprises. News reporting would have to adhere to the Court's guidance on the matter, but it seems that similar use to that of Funken's would be covered by the exception under Article 5, to the potential chagrin of many authors that might not want this.

Military Grade News - CJEU Advocate General Opines on Copyright and the Freedom of Expression

IP and freedom of speech have always had a difficult relationship. What could be freer that the ability to use any works you have seen, and share them with a wider potentially different audience, while IP seeks to protect the interests of the original author, even sometimes at the expense of the rightsholders. These issues often come to blows in the courts, and a recent case in the CJEU has brought this conversation back to the forefront. Can you protect works using copyright, even with strong issues of freedom of speech underpinning the sharing of those documents? We found out the precursor to the European answer to this question late last October.

The case of Funke Medien NRW GmbH v Federal Republic of Germany concerned military status reports drawn up for the German government on a weekly basis, which detail developments of deployed forces abroad. These reports are subsequently sent to e.g. various members of the Federal Parliament and the Ministry of Defense for briefing purposes. The documents are classed as classified and restricted. Funke Media published summaries of some of these reports, having acquired copies of them through potentially illicit means as an application to access them was rejected by the German government. They were subsequently taken to court for copyright infringement, with the matter ultimately ending with Advocate General Szpunar.

The balancing act between ensuring freedom of expression, but still protecting copyright owners' rights, is a difficult one, since the interests are often very much in competition with each other. The Court was tasked in balancing this difficult dichotomy.

Copyright through numerous exceptions allows for some freedoms when it comes to using copyright materials, including for critique, satire and review. However, the exceptions are by no means very broad (like in the US under fair use), and could be used to curtail genuine public discourse and commentary.

The Charter of Fundamental Rights of the European Union sets out the various rights enjoyed within the Union, and Article 51 asserts those rights onto any EU legislation implemented by Member States. In this case, Article 11 is in contention, which gives everyone the right of freedom of expression.

Other methods might've worked better to keep matters 'secret'

The main question that the Advocate General sought to answer is whether the grounds asserted by the German government are good enough to trump the Claimant's right to freedom of expression. The Advocate General did, however, note that as the copyright holder in this case is a Member State, it does not enjoy the same rights as the people living in that Member State. He distinguished the matter in that "...the State cannot rely on the fundamental right to property as a means of restricting another fundamental right guaranteed by the ECHR or the Charter", even though the State might have a remedy under civil rights.

The Advocate General summarized the position as "...If the State were able to invoke its individual rights, other than the public interest, in order to limit fundamental rights, the result would be the destruction of those fundamental rights". The State would have to put forward an argument under public interest to protect the works in question in order to limit the fundamental rights guaranteed in the Charter. In his view, the State fails under the public interest argument.

He then turned to the matter of copyright protection offered for the military reports. Copyright at its core aims to achieve two objectives: (i) to protect the personal relationship between the author and his work as his intellectual creation; and (ii) to enable authors to exploit their works economically.

While Germany does own the copyright in the military reports, the country itself cannot be construed as the author of those works. Even though they were drafted by State employees, strictly speaking the works themselves do not have an author at all. The Advocate General saw that, as copyright endeavors to protect the relationship between the author and the works created, the State's interests cannot be protected in works it isn't the author of. As he put succinctly: "...where there is no author, there is no copyright, in the form of either moral or property rights".

Similarly, as the State does not seek to profit from the works themselves economically, but to protect the contents from public scrutiny, the Advocate General deemed the matter outside of the remit of copyright.

In short, "...the answer should be that Article 11 of the Charter, read in conjunction with Article 52(1) thereof, must be interpreted as precluding a Member State from invoking copyright under Article 2(a) and Article 3(1) of [the] Directive in order to prevent the communication to the public, in the context of a debate concerning matters of public interest, of confidential documents emanating from that Member State. That interpretation does not prevent the Member State from applying, in compliance with EU law, other provisions of its domestic law, including those relating to the protection of confidential information".

The Advocate General clearly sought to protect the interests of those seeking to share and disseminate information, while the State attempted to curtail those efforts through incorrect means. Copyright clearly was not the appropriate vehicle to protect the legitimate interests in keeping military documents secret, and the State therefore could pursue it through other avenues. In the end, it remains to be seen what the CJEU rules in this case.