The matter at hand

Mr Beck had been a member of the Bundestag (Federal Parliament, Germany) since 1994 at the time when the referring court decided to make a reference to the ECJ. He is the author of a manuscript on criminal policy relating to sexual offences committed against minors. That manuscript was published under a pseudonym in an article in a book published in 1988. At the time of publication, the publisher changed the title of the manuscript and shortened one of its sentences. Over the following years, Mr Beck, who was criticised for the statements contained in the article, repeatedly contended that the meaning of his manuscript had been altered by the publisher of the book and that he distanced himself from the content of that article.

In 2013, Mr Beck’s manuscript was discovered in certain archives and was put to him when he was a candidate in parliamentary elections in Germany. In response, Mr Beck provided various newspaper editors with that manuscript in order to show that it had been amended by the publisher for the purposes of the publication of the article in the book. He did not, however, give consent for the editors to publish the manuscript and article. Instead, he personally published them on his own website accompanied across each page by the statement ‘I dissociate myself from this contribution. Volker Beck’ and ‘[The publication of] this text is unauthorised and has been distorted by the publisher’s editing at its discretion of the heading and body of the text’.

The German internet news portal Spiegel Online subsequently published an article in which it contended that, contrary to Mr Beck’s claim, the central statement appearing in his manuscript had not been altered by the publisher and that he had therefore misled the public over a number of years. In this context, Spiegel Online made the original versions of the manuscript and book article available for download by means of hyperlinks.

Mr Beck subsequently brought an action before the Landgericht (Regional Court, Germany) taking the view that the making available of the manuscript and article on Spiegel Online’s website constituted an infringement of copyright. That court upheld Mr Beck’s action. After its appeal was dismissed, Spiegel Online brought an appeal on a point of law before the referring court, the Bundesgerichtshof (Federal Court of Justice, Germany). That court considered that the interpretation of 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, read in the light of the freedom of information and the press protected under the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01], was not obvious, and referred a number of questions to the ECJ regarding the interpretation of those provisions.

The judgment of the ECJ

With regard to the first three questions raised by the referring court, we refer to the judgment of the ECJ of the same date in Funke Medien (also summarised in this book).

In Mr Beck’s case, the ECJ also goes into the interpretation of 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, which allows the Member States to provide for exceptions or limitations in the case of use of works or other subject matter ‘in connection with the reporting of current events’, to the extent justified by the informatory purpose and as long as the source, including the author’s name, is indicated, unless this turns out to be impossible.

The ECJ explains that for this limitation to apply, the rightholder’s prior consent is not required. Subject to indication of the source and use of the work to the extent justified by the informatory purpose, the limitation requires only that such use be ‘in connection with the reporting of current events’.

Regarding the interpretation of that concept, the ECJ rules that “the action of reporting (…) must be understood as that of providing information on a current event. Although merely announcing that such an event has occurred does not amount to reporting it, the word ‘reporting’, according to its usual meaning, does not, however, require the user to analyse such an event in detail” (paragraph 66).

Next, the reporting must relate to a ‘current event’, that is “an event that, at the time at which it is reported, is of informatory interest to the public” (paragraph 67). A current event may therefore also include events that occurred a long time ago, as long as they are of ‘informatory interest’ to the public at the time of the reporting.

As to, lastly, the requirement that the use in question be made ‘to the extent justified by the informatory purpose’, the ECJ explains that this requires the use to be consistent with the principle of proportionality, meaning that “the use of the protected work must not be extended beyond the confines of what is necessary to achieve the informatory purpose” (paragraph 68).

The ECJ adds that it also follows from the legislative context and the purpose of the limitation that the rightholder’s prior consent is not required. The ECJ explains that when a current event occurs, it is necessary for the information relating to that event to be diffused rapidly. Considering, further, that the purpose of the limitation is to contribute to the exercise of the freedom of information and the freedom of the media protected under Article 11 of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01], the press is justified in informing the public “without restrictions other than those that are strictly necessary” (paragraph 72).

In the light of these considerations, the ECJ concludes that 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 “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” (paragraph 74).

The ECJ then goes into the question of whether Article 5(3)(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, allowing ‘quotations’, covers references made by means of ‘a hyperlink to a file which can be downloaded independently’. From the description of the facts, we understand that the ECJ thereby refers to the fact that the files could be downloaded directly from Spiegel Online’s website. It therefore did not concern a hyperlink to Mr Beck’s website, where he had published the article and manuscript himself accompanied by statements of dissociation. Instead, Spiegel Online made the original article and manuscript available without Mr Beck’s statements of dissociation.

To answer the question of whether such hyperlinks to independently downloadable files can constitute a ‘quotation’, the ECJ notes that a quotation should meet the following requirements. First, it is essential that the quotation is made “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”. This means that the user of a protected work wishing to rely on the exception for quotations must “necessarily establish a direct and close link between the quoted work and his own reflections, thereby allowing for an intellectual comparison to be made with the work of another”. And second, “the use of the quoted work must be secondary in relation to the assertions of that user”. The ECJ explains that this follows from Article 5(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 and means that the quotation of a protected work “cannot (…) be so extensive as to conflict with a normal exploitation of the work or another subject matter or prejudices unreasonably the legitimate interests of the rightholder” (paragraph 46).

The ECJ, however, establishes that this concept of ‘quotation’ “does not require that the quoted work be inextricably integrated, by way of insertions or reproductions in footnotes for example, into the subject matter citing it, so that a quotation may thus be made by including a hyperlink to the quoted work” (paragraph 80). The ECJ adds that this is also consistent with the legislative context and purpose of the limitation in favor or quotations.

Although the concept of ‘quotation’ thus also covers hyperlinks to independently downloadable files, the ECJ emphasizes that Article 5(3)(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 furthermore requires that the quotation is made ‘in accordance with fair practice, and to the extent required by the specific purpose’. This means that the use for the purposes of quotation “must not be extended beyond the confines of what it necessary to achieve the informatory purpose of that particular quotation” (paragraph 83). It is for the referring court to assess whether this condition has been met in this case.

Lastly, the ECJ deals with the question of whether Mr Beck’s manuscript and article as published on Spiegel Online’s website have been ‘lawfully published’ as required under Article 5(3)(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, considering that the article as originally published in 1988 contained minor changes not authorised by Mr Beck, and that Mr Beck’s publication on his own website was accompanied by statements of dissociation. The ECJ rules that the concept of ‘lawfully published’ means that the work “has been made available to the public with the authorisation of the copyright holder or in accordance with a non-contractual licence or a statutory authorization” (paragraph 89). With respect to the article published in 1988, the ECJ rules that it must therefore be determined whether the publisher had the right, whether contractually or otherwise, to undertake the editorial amendments in question. “If not, it would need to be held that, in the absence of the rightholder’s consent, the work, in the form in which it was published in that book, was not made lawfully available to the public” (paragraph 92). As regards the publication of the documents on Mr Beck’s website, the ECJ rules that these were lawfully made available to the public only in so far as they were accompanied by his statements of dissociation. This seems to indicate that the ECJ holds the view that the documents published by Spiegel Online cannot be considered to have been lawfully made available to the public by Mr Beck or with his consent. Additionally, the ECJ notes that the referring court must also determine whether the publication by Spiegel Online was, in these circumstances, in accordance with fair practice and did not go further than required by the specific purpose of the quotation.