Copyright exceptions not extended by freedom of expression rights

The Court of Justice of the EU (CJEU) confirmed the position in a recent ruling which concerns an underlying dispute between online publisher Funke Medien and the German government. The dispute relates to Funke Medien's publication of military status reports prepared by the government in relation to the operations of Germany's armed forces.

The German government has argued that Funke Medien's publication of approximately 5,000 pages of its weekly classified reports covering German armed forces' operations in Afghanistan was an infringement of its copyright. According to the CJEU, the publisher obtained the papers through unknown means having previously had its earlier request for disclosure of the papers by the government rejected.

Before issuing its ruling on the case, Germany's Federal Court of Justice asked the CJEU to, among other things, clarify whether the rights set out in the Charter of Fundamental Rights of the European Union have any bearing on the scope of the exceptions or limitations provided for in EU copyright law. That law provides authors with a general right to control whether and how their works are reproduced and distributed – rights which are qualified by the exceptions and limitations also provided for in the legislation.

The CJEU said, though, that provisions concerning freedom of information and freedom of the press that are enshrined in the Charter "are not capable of justifying, beyond the exceptions or limitations provided for in … [the EU's copyright directive], a derogation from the author’s exclusive rights of reproduction and of communication to the public".

The court said EU copyright law takes account of the rights and interests of copyright holders as well as the often competing rights of would-be users of copyrighted works, including by balancing the Charter rights on protection of intellectual property with other Charter rights concerning freedom of expression and information, and the public interest.

The CJEU highlighted that the European Court of Human Rights has referred to the need to take into account, for the purpose of striking a balance between copyright and the right to freedom of expression, the fact that the nature of the ‘speech’ or information at issue is of particular importance, such as in the context of political discourse and discourse concerning matters of the public interest.

The EU court has left it up to Germany's Federal Court of Justice to firstly ascertain whether military status reports are protected by copyright, and then, if necessary, whether Funke Medien can rely on an exception or limitation to copyright to justify its publication of the papers.

According to the CJEU, the military status reports can only be regarded as copyright 'works' for the purposes of EU copyright law 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 CJEU suggested that it may be possible that Funke Medien's publication of the military status reports may be covered by the exception concerning current events reporting provided for in EU copyright law. That issue has also been left to Germany's Federal Court of Justice to determine.