The matter at hand

The Federal Republic of Germany prepares a weekly military status report on the deployments abroad of the Bundeswehr (Federal armed forces). These reports, referred to as ‘Unterrichtung des Parlaments’ (Parliament briefings, ‘UdPs’), are sent to selected members of the Bundestag (Federal Parliament) and ministries and are categorised as ‘Classified Documents – Restricted’, which is the lowest of the four levels of confidentiality laid down under German law.

At some point, Funke Medien, which operates the website of a German daily newspaper called the Westdeutsche Allgemeine Zeitung, obtained, by unknown means, a large proportion of the UdPs, which it published as the ‘Afghanistan papers’ on its website.

The Federal Republic of Germany, taking the view that Funke Medien thereby infringed its copyright in the UdPs, brought an action for an injunction against Funke Medien. The action was upheld by the Landgericht Köln (Regional Court, Cologne) and the subsequent appeals were dismissed. In the appeal on a point of law, the Bundesgerichtshof (Federal Court of Justice, Germany) concluded that in the judgment under appeal, the court had failed to make any finding of fact from which it could be concluded that the UdPs are original creations. However, before referring the case back to that court in order to assess this, the referring court found it useful to consider first whether publication of the UdPs by Funke Medien was covered by the limitations laid down in German copyright law relating to the reporting of current events, quotations or freedom of information, or was justified by the freedom of the press as laid down in Article 11 of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01].

In those circumstances, the Bundesgerichtshof referred questions to the ECJ, asking whether the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society allows any discretion for the purposes of the transposition into national law of the right of reproduction and communication to the public provided for in the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society and of the exceptions and limitations to these rights allowed under that directive. In addition, the referring court asked in which way the fundamental rights of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01] should be taken into account when ascertaining the scope of these exceptions or limitations and whether such rights justify exceptions or limitations beyond those provided for in Article 5(2) and (3) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

The judgment of the ECJ

As a preliminary observation, the ECJ first of all notes that, in order to determine whether the UdPs may be regarded as ‘works’ within the meaning of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, it must be ascertained “whether, in drawing up those reports, the author was able to make free and creative choices capable of conveying to the reader the originality of the subject matter at issue, the originality of which arises from the choice, sequence and combination of the words by which the author expressed his or her creativity in an original manner and achieved a result which is an intellectual creation” (paragraph 23). The ECJ holds that this standard is not met if the status reports “constitute purely informative documents, the content of which is essentially determined by the information which they contain, so that such information and the expression of those reports become indissociable and that those reports are thus entirely characterised by their technical function, precluding all originality (paragraph 24).

The ECJ then goes into the first question, which it understands as asking whether Articles 2(a) and 3(1) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, providing for the exclusive right of reproduction and communication to the public, and Article 5(3)(c) and (d) of that directive, allowing certain uses in connection with the reporting of current events and quotations, must be interpreted as constituting measures of full harmonisation.

The ECJ answers this question in the affirmative with regard to Articles 2(a) and 3(1) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, considering that those provisions define a copyright holder’s exclusive right of reproduction and making available to the public in unequivocal terms, and are not subject to any condition or to any measure being taken in any particular form. In addition, the ECJ recalls that it has already held that those provisions form a harmonised legal framework ensuring a high and even level of protection for the rights of reproduction and making available to the public.

As to the limitations provided for in Article 5(3)(c), second case, and (d) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, the ECJ recalls that the scope of the Member States’ discretion in the transposition into national law of a particular exception or limitation must be determined on a case-by-case basis, in particular, according to the wording of the provision in question and the degree of the harmonisation intended by the EU legislature. Applied to the limitations at issue in the main proceedings, the ECJ rules that it follows from the wording of the relevant provisions and the intention of the EU legislature that “the Member States enjoy significant discretion allowing them to strike a balance between the relevant interests” (paragraph 43).

However, the ECJ does emphasise that the discretion in the implementation of exceptions and limitations provided for in Articles 5(2) and (3) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, is circumscribed in several regards:

• First, this discretion must be exercised within the limits imposed by EU law, meaning that the Member States are not in every case free to determine, in an unharmonised manner, the parameters governing those exceptions or limitations. In particular, Member States may provide for an exception or limitation only if they comply with all the conditions laid down in the relevant provision and comply with the general principles of EU law, including the principle of proportionality.

• Second, the discretion enjoyed by the Member States cannot be used so as to compromise the objective of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society of establishing a high level of protection for authors and ensuring the proper functioning of the internal market, but must, at the same time, safeguard the effectiveness of the exceptions and limitations and permit observance of their purpose, in order to safeguard a fair balance of rights and interests between the different categories of rightholders and users of protected subject matter.

• Third, the Member States’ discretion is also circumscribed by Article 5(5) of the directive, containing the so-called three-step-test.

• And lastly, the Member States must ensure that they rely on an interpretation of the directive which allows a fair balance to be struck between the various fundamental rights protected by the European Union legal order under the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01].

In the light of the foregoing considerations, the ECJ concludes in the answer to the first question “that Article 2(a) and Article 3(1) of [the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society] must be interpreted as constituting measures of full harmonisation of the scope of the exceptions or limitations which they contain”, but that “Article 5(3)(c), second case, and (d) of [the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society] must be interpreted as not constituting measures of full harmonisation of the scope of the relevant exceptions or limitations” (paragraph 54).

Next, the ECJ considers whether the fundamental rights of freedom of information and freedom of the press, enshrined in Article 11 of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01], 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. The ECJ rules that they are not, considering that the list of exceptions and limitations contained in Article 5 of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society is exhaustive and that the mechanisms allowing the different rights and interests of holders of copyright and users of protected subject matter to be balanced are already contained in the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society itself.

As to the way in which the fundamental rights of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01] should be taken into account, the ECJ notes that Article 5(3)(c) and (d) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society is specifically intended to ensure a fair balance between, on the one hand, the rights and interests of rightholders, and, on the other hand, the rights and interests protected by Article 11 of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01]. Referring to case-law of the ECHR, the ECJ rules that for the purpose of striking this balance, it is, in particular, necessary to take into account whether “the nature of the information at issue is of particular importance, inter alia in political discourse and discourse concerning matters of the public interest” (paragraph 74).

Applied to the present case, the ECJ notes that Funke Medien not only published the UdPs on its website, but also presented them in a structured form in conjunction with an introductory note, further links and a space for comments. The ECJ holds that, accordingly, it would need to be held that the publication of those documents may amount to ‘use of works … in connection with … reporting’ and would therefore be capable of falling within Article 5(3)(c), second case, of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, provided that the other conditions set out in that provision were satisfied.