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.
Showing posts with label quotation. Show all posts
Showing posts with label quotation. Show all posts
27 August, 2019
22 August, 2019
That's News to Me - CJEU Decides on Whether Copying for the Purpose of Reporting of Current Events Infringes Copyright
News reporting is an important part of society and one of the best ways to keep a population informed and up-to-date on current events. Many consider the preservation of news reporting, particularly an unfettered reporting, incredibly important. Quoting and copying of materials for the news isn't always as straightforward as that, with many instances amounting to copyright infringement. With that in mind, what are the limits to copying for the purposes of reporting current events? Luckily the CJEU took this question on and handed down its judgment only a few weeks ago.
The case of Spiegel Online GmbH v Volker Beck concerned a manuscript written by a German politician, Volker Beck. The manuscript, which dealt with criminal policy relating to sexual offences committed against minors, was originally published in 1988 under a pseudonym. At the time the manuscript's title, along with very small parts of its contents, were changed by the publisher, to Mr Volker's dismay. The manuscript was discovered 25 years later, which was put to Mr Volker during his then campaign for the German parliament. During this period Mr Volker provided some newspaper editors with the full manuscript to show it had been edited (but didn't give consent to the editors for publication), and published it on his website distancing himself from it. Spiegel Online, however, published an article contesting Mr Volker's stance, including links to the full manuscript with the article. Mr Volker subsequently sued the paper for copyright infringement, with the matter ending up with the CJEU sometime after.
The referring court asked the CJEU six questions, the first of which asking "…whether Article 5(3)(c), second case, and (d) of Directive 2001/29 must be interpreted as constituting measures of full harmonisation".
The CJEU dealt with the background of the question quite extensively, but decided that the Article does not constituting measures of full harmonization. As the transposition of legislation into national law is dealt with on a case-by-case basis, the Court saw that there was a high degree of discretion allowed for Member States, and therefore the provision isn't looking to harmonize EU law in a strict fashion across the board.
The Court then moved onto 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". In other words, would the freedom of information go beyond the express exceptions already provided for in the legislation.
At the outset the Court noted that the exceptions contained in Article 5 are exhaustive, and seek to strike a balance on interests between protecting works, while allowing for users to access information where and when needed (especially regarding the freedom of expression and information). They continued that Article 5 is specifically aims at favoring 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. Even so, allowing for an exception beyond the above remits would potentially endanger the effectiveness of the harmonization of copyright in the EU and legal certainty on its factual remit.
The CJEU then determined that "…freedom of information and freedom of the press, enshrined in… 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".
Having dealt with the third question, the Court turned to the second question, which asked "…whether, in striking the balance… between the exclusive rights of the author referred to in Article 2(a) and Article 3(1) of Directive 2001/29… and… the rights of the users of protected subject matter referred to in Article 5(3)(c)… and (d)… 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".
According to the Court, the exceptions provided for in Article 5 confer specific rights to users of protected works, which should be given a broad interpretation, and the effectiveness of the provision needs to be safeguarded. Even though the Charter does expressly protect intellectual property, the rights given to rightsholders are not absolute. When striking a balance between the rights given to citizens by the Charter, courts have to consider the context in which that use occurs in the light of copyright protection. The Court considered that, in answering the question "…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 Court followed this with the fourth question, which asked "…whether Article 5(3)(c), second case, of Directive 2001/29 must be interpreted as precluding a national rule restricting the application of the exception or limitation provided for in that provision in cases where it is not reasonably possible to make a prior request for authorisation with a view to the use of a protected work for the purposes of reporting current events".
In answering the question, the Court noted that the exceptions in Article 5 don't require any authorization from the rightsholder prior to the use of a protected work. In considering the meaning of 'in connection with the reporting of current events', the Court saw that it meant "…the action of ‘reporting’… must be understood as that of providing information on a current event", but does not require the analysis of an event in detail. The reporting must also relate to 'current events', which is "…an event that, at the time at which it is reported, is of informatory interest to the public". The author of the protected work would also have to be attributed in the news reports.
The Court determined that national rules restricting the application of the exceptions would be precluded by EU law.
That was followed by the fifth question, which asked "…whether Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that the concept of ‘quotations’… covers a reference made by means of a hyperlink to a file which can be downloaded independently".
The Court commenced by looking at the meaning of 'quotation' under the provision, which is considered to be "…the use, by a user other than the copyright holder, of a work or, more generally, of an extract from a work for the purposes of illustrating an assertion, of defending an opinion or of allowing an intellectual comparison between that work and the assertions of that user". A direct and close link needs to be established between the quoted work and the author's own reflections. As such the quotation doesn't need to be inextricably integrated, by way of insertions or reproductions in footnotes for example, into the subject matter citing it, which allows for a hyperlink to be a quotation for the purposes of the provision.
The Court therefore answered the question as "…the concept of ‘quotations’, referred to in that provision, covers a reference made by means of a hyperlink to a file which can be downloaded independently".
Finally, the Court turned to the sixth and final question, which asked "…whether Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that a work has already been lawfully made available to the public where that work, in its specific form, was published previously with the author’s consent".
The Court noted that the exception for quotation only applies to works that already been lawfully made available to the public. If a work has been made lawfully available, it has been made available with the author's authorization, allowing for quotation. Mr Beck had clearly done so by publishing the manuscript on his website, even if he disassociated himself from the work (with the statement needing to be included with any quotation).
The Court therefore set out that "…Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that a work has already been lawfully made available to the public where that work, in its specific form, was previously made available to the public with the rightholder’s authorisation or in accordance with a non-contractual licence or statutory authorisation".
The case is yet another important update to the world of quotation, and how copyright protected works can be used in news reporting. The limits of what would amount to quotation can be tricky, and therefore a serious of cases from the CJEU dealing with the subject matter is a very welcome addition. Many news outlets will welcome this change, but will have to make sure to abide by it so as to not infringe copyright in any works.
The case of Spiegel Online GmbH v Volker Beck concerned a manuscript written by a German politician, Volker Beck. The manuscript, which dealt with criminal policy relating to sexual offences committed against minors, was originally published in 1988 under a pseudonym. At the time the manuscript's title, along with very small parts of its contents, were changed by the publisher, to Mr Volker's dismay. The manuscript was discovered 25 years later, which was put to Mr Volker during his then campaign for the German parliament. During this period Mr Volker provided some newspaper editors with the full manuscript to show it had been edited (but didn't give consent to the editors for publication), and published it on his website distancing himself from it. Spiegel Online, however, published an article contesting Mr Volker's stance, including links to the full manuscript with the article. Mr Volker subsequently sued the paper for copyright infringement, with the matter ending up with the CJEU sometime after.
The referring court asked the CJEU six questions, the first of which asking "…whether Article 5(3)(c), second case, and (d) of Directive 2001/29 must be interpreted as constituting measures of full harmonisation".
The CJEU dealt with the background of the question quite extensively, but decided that the Article does not constituting measures of full harmonization. As the transposition of legislation into national law is dealt with on a case-by-case basis, the Court saw that there was a high degree of discretion allowed for Member States, and therefore the provision isn't looking to harmonize EU law in a strict fashion across the board.
The Court then moved onto 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". In other words, would the freedom of information go beyond the express exceptions already provided for in the legislation.
At the outset the Court noted that the exceptions contained in Article 5 are exhaustive, and seek to strike a balance on interests between protecting works, while allowing for users to access information where and when needed (especially regarding the freedom of expression and information). They continued that Article 5 is specifically aims at favoring 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. Even so, allowing for an exception beyond the above remits would potentially endanger the effectiveness of the harmonization of copyright in the EU and legal certainty on its factual remit.
The CJEU then determined that "…freedom of information and freedom of the press, enshrined in… 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".
Having dealt with the third question, the Court turned to the second question, which asked "…whether, in striking the balance… between the exclusive rights of the author referred to in Article 2(a) and Article 3(1) of Directive 2001/29… and… the rights of the users of protected subject matter referred to in Article 5(3)(c)… and (d)… 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".
According to the Court, the exceptions provided for in Article 5 confer specific rights to users of protected works, which should be given a broad interpretation, and the effectiveness of the provision needs to be safeguarded. Even though the Charter does expressly protect intellectual property, the rights given to rightsholders are not absolute. When striking a balance between the rights given to citizens by the Charter, courts have to consider the context in which that use occurs in the light of copyright protection. The Court considered that, in answering the question "…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 Court followed this with the fourth question, which asked "…whether Article 5(3)(c), second case, of Directive 2001/29 must be interpreted as precluding a national rule restricting the application of the exception or limitation provided for in that provision in cases where it is not reasonably possible to make a prior request for authorisation with a view to the use of a protected work for the purposes of reporting current events".
In answering the question, the Court noted that the exceptions in Article 5 don't require any authorization from the rightsholder prior to the use of a protected work. In considering the meaning of 'in connection with the reporting of current events', the Court saw that it meant "…the action of ‘reporting’… must be understood as that of providing information on a current event", but does not require the analysis of an event in detail. The reporting must also relate to 'current events', which is "…an event that, at the time at which it is reported, is of informatory interest to the public". The author of the protected work would also have to be attributed in the news reports.
The Court determined that national rules restricting the application of the exceptions would be precluded by EU law.
That was followed by the fifth question, which asked "…whether Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that the concept of ‘quotations’… covers a reference made by means of a hyperlink to a file which can be downloaded independently".
The Court commenced by looking at the meaning of 'quotation' under the provision, which is considered to be "…the use, by a user other than the copyright holder, of a work or, more generally, of an extract from a work for the purposes of illustrating an assertion, of defending an opinion or of allowing an intellectual comparison between that work and the assertions of that user". A direct and close link needs to be established between the quoted work and the author's own reflections. As such the quotation doesn't need to be inextricably integrated, by way of insertions or reproductions in footnotes for example, into the subject matter citing it, which allows for a hyperlink to be a quotation for the purposes of the provision.
The Court therefore answered the question as "…the concept of ‘quotations’, referred to in that provision, covers a reference made by means of a hyperlink to a file which can be downloaded independently".
Finally, the Court turned to the sixth and final question, which asked "…whether Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that a work has already been lawfully made available to the public where that work, in its specific form, was published previously with the author’s consent".
The Court noted that the exception for quotation only applies to works that already been lawfully made available to the public. If a work has been made lawfully available, it has been made available with the author's authorization, allowing for quotation. Mr Beck had clearly done so by publishing the manuscript on his website, even if he disassociated himself from the work (with the statement needing to be included with any quotation).
The Court therefore set out that "…Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that a work has already been lawfully made available to the public where that work, in its specific form, was previously made available to the public with the rightholder’s authorisation or in accordance with a non-contractual licence or statutory authorisation".
The case is yet another important update to the world of quotation, and how copyright protected works can be used in news reporting. The limits of what would amount to quotation can be tricky, and therefore a serious of cases from the CJEU dealing with the subject matter is a very welcome addition. Many news outlets will welcome this change, but will have to make sure to abide by it so as to not infringe copyright in any works.
23 June, 2013
The United Kingdom Looking Ahead with new Copyright Exceptions
In a recent blog post I talked about the possible direction where Australian copyright was heading based on a Discussion Paper released by the Australian Law Review Commission. Well, it seems like the old motherland has awoken from its copyright hibernation in the wake of Australia's steps forward. In an effort to modernize copyright, the UK Intellectual Property Office is seeking opinions based on new potential exceptions which are under consideration: an exception for private copying, parody and quotations. I think each of these potential categories merits examination as to what their current formulation is, and where they could be headed.
Exception for Private Copying
In their plans, the UK Government plans to introduce "...a narrow private copying exception which will allow an individual to copy content they own, and which they acquired lawfully, to another medium or device for their own personal use". What this clearly is is an equivalent for something Australia has already had for some years; format shifting. Provisions such as this will allow you to copy your lawfully bought content, such as music or movies, to a different format - often from a CD onto your MP3 player for example. There is a distinct difference to what the UK approach, at least for now, is when compared to the Australian one. In further expanding on how the copying will extend, the IPO says that "...it would not allow them to make copies of their CDs and give them to other people". If this were to be looked at from a literal perspective, should you make a copy of a CD for your kids to listen to on their iPods, or give a copy of a DVD for your cousin to watch on a Saturday night, you would be infringing copyright. The Australian provision allows for copies to be given to family or people living in your household, but on the condition that those copies are of a temporary nature and not given to keep. If the IPO would only permit the copying for personal use in excluding family they would go against the very principle why they're enacting these additions to begin with: "The exception aims to align the law with behaviour most people consider to be reasonable, to remove unnecessary regulation, and to help build confidence in and respect for copyright".
Arguably the exception should be shaped to be similar to that of Australia's approach. The Canadian provision only allows for the copying for the individual, much like the potential UK provision, so the direction where this could head is unclear. One could easily predict that the courts could potentially extend the provision to apply to family, but that would remain to be seen. A draft of the section can be found in the document discussing the exception.
Exception for Parody
An exception that the UK has needed for the past several years, yet again lagging behind its Australian cousins, is the exception to allow for the use of works for parody, caricature or pastiche. As the IPO explained, this would "...give people in the UK’s creative industries greater freedom to use others’ works". If introduced the provision would be included with other fair dealing provisions, so the use would have to be 'fair', preventing the use of works in the veil of parody to purely abuse it for personal gain. A draft of the possible provision can be read in the IPO's documentation as well.
Exception for Quotation
The final exception being introduced is one which would amend the current exception for criticism and review to one allowing for the quotation of material, not merely restricting it to those uses. Broadening the existing fair dealing exception seems like a perfectly sensible option, and in the words of the IPO: "ensure[s] that copyright does not unduly restrict the use of quotations for reasonable purposes that cause minimal harm to copyright owners, such as academic citation or hyperlinking". Should the provision be enacted it would be the first of its kind, as both in Australia and Canada similar provisions relating to criticism and review, on the face of the provisions, would be much more restrictive.
Source: IP-Watch
Exception for Private Copying
In their plans, the UK Government plans to introduce "...a narrow private copying exception which will allow an individual to copy content they own, and which they acquired lawfully, to another medium or device for their own personal use". What this clearly is is an equivalent for something Australia has already had for some years; format shifting. Provisions such as this will allow you to copy your lawfully bought content, such as music or movies, to a different format - often from a CD onto your MP3 player for example. There is a distinct difference to what the UK approach, at least for now, is when compared to the Australian one. In further expanding on how the copying will extend, the IPO says that "...it would not allow them to make copies of their CDs and give them to other people". If this were to be looked at from a literal perspective, should you make a copy of a CD for your kids to listen to on their iPods, or give a copy of a DVD for your cousin to watch on a Saturday night, you would be infringing copyright. The Australian provision allows for copies to be given to family or people living in your household, but on the condition that those copies are of a temporary nature and not given to keep. If the IPO would only permit the copying for personal use in excluding family they would go against the very principle why they're enacting these additions to begin with: "The exception aims to align the law with behaviour most people consider to be reasonable, to remove unnecessary regulation, and to help build confidence in and respect for copyright".
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| Steve hasn't quite gotten the hang of "private copying" |
Arguably the exception should be shaped to be similar to that of Australia's approach. The Canadian provision only allows for the copying for the individual, much like the potential UK provision, so the direction where this could head is unclear. One could easily predict that the courts could potentially extend the provision to apply to family, but that would remain to be seen. A draft of the section can be found in the document discussing the exception.
Exception for Parody
An exception that the UK has needed for the past several years, yet again lagging behind its Australian cousins, is the exception to allow for the use of works for parody, caricature or pastiche. As the IPO explained, this would "...give people in the UK’s creative industries greater freedom to use others’ works". If introduced the provision would be included with other fair dealing provisions, so the use would have to be 'fair', preventing the use of works in the veil of parody to purely abuse it for personal gain. A draft of the possible provision can be read in the IPO's documentation as well.
Exception for Quotation
The final exception being introduced is one which would amend the current exception for criticism and review to one allowing for the quotation of material, not merely restricting it to those uses. Broadening the existing fair dealing exception seems like a perfectly sensible option, and in the words of the IPO: "ensure[s] that copyright does not unduly restrict the use of quotations for reasonable purposes that cause minimal harm to copyright owners, such as academic citation or hyperlinking". Should the provision be enacted it would be the first of its kind, as both in Australia and Canada similar provisions relating to criticism and review, on the face of the provisions, would be much more restrictive.
Source: IP-Watch
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