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.