Opinion of Advocate General Szpunar delivered on 25 October 2018.

• Jurisdiction: European Union
• Celex Number: 62017CC0469
• ECLI: ECLI:EU:C:2018:870
• Date: 25 October 2018
• Docket Number: C-469/17
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 25 October 2018 (1)

Case C‑469/17

Funke Medien NRW GmbH

v

Federal Republic of Germany

(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))

(Reference for a preliminary ruling — Copyright and related rights — Reproduction right — Right of communication to the public of works and right of making available to the public other subject matter — Exceptions and limitations — Procedure for transposition by Member States — Assessment in the light of fundamental rights — Exhaustive nature)

Introduction

1. ‘All quiet on the Western Front’, declared what is probably the most well-known military report in the history of literature. Featured in the novel by Erich Maria Remarque bearing the same name, (2) this phrase naturally enjoyed, together with the work as a whole, copyright protection. The case in point presents the Court with a more complex question: can a military report that is not fictional but entirely real enjoy copyright protection, as harmonised in EU law, in the same way as other literary works?

2. This question raises two problems: first, does such a report satisfy the requirements in order to be treated as a work eligible for copyright protection, requirements that flow from the very nature of copyright and the case-law of the Court? Secondly, must other factors such as freedom of expression, protected by the Charter of Fundamental Rights of the European Union (‘the Charter’), be taken into account in order to minimise, or even rule out, such protection? It seems to me to be necessary to answer those two questions in order to provide the national court with a useful answer.

Legal framework

European Union law

3. Article 2 of Directive 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 (3) provides:

‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:

(a) for authors, of their works;

…’

4. Article 3(1) of that directive provides:

‘Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.’

5. Under Article 5(3)(c) and (d) of the directive:

‘Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:

…

(c) reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author’s name, is indicated, or 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;

(d) quotations for purposes such as criticism or review, provided that they relate to a work or other subject matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;

…’

German law

6. Directive 2001/29 was transposed into German law by the Gesetz über Urheberrecht und verwandte Schutzrechte — Urheberrechtsgesetz (Law on copyright and related rights) of 9 September 1965 (‘the UrhG’). Paragraph 2 of that law lists the categories of protected works. Paragraph 2(2) provides:

‘Only personal intellectual creations shall be regarded as works within the meaning of this law.’

7. With regard to the protection of official texts, Paragraph 5 of the law makes the following provision:

‘1. Laws, decrees, official orders or notices, decisions and the statements of reasons for those decisions shall not be protected by copyright.

2. Copyright protection shall also not extend to other official texts which, in the interests of the administration, were disseminated to the public for information purposes. However, the provisions of Paragraphs 62(1) to (3) and 63(1) and (2) concerning the prohibition on altering the work and the indication of the source shall apply mutatis mutandis.

…’

8. Authors’ reproduction rights and the right of communication to the public are protected under Paragraph 15(1) and (2) of the UrhG, while the exceptions concerning the reporting of current events and quotations are laid down in Paragraphs 50 and 51 of that law.

Facts, procedure and questions referred

9. The defendant, the Federal Republic of Germany, has a military status report drawn up every week on the deployments of the Bundeswehr (Federal Armed Forces, Germany) abroad and on the developments at the deployment locations. The reports are referred to as ‘Unterrichtung des Parlaments’ (Parliament briefings, ‘UdPs’) and are sent to selected members of the Bundestag (Federal Parliament, Germany), to sections of the Bundesministerium der Verteidigung (Federal Ministry of Defence, Germany) and other federal ministries, and to subordinate bodies of the Federal Ministry of Defence. UdPs are categorised as ‘classified documents — Restricted’, the lowest level of confidentiality. At the same time, the defendant publishes summaries of the UdPs known as ‘Unterrichtung der Öffentlichkeit’ (public briefings, ‘UdÖs’).

10. The applicant, Funke Medien NRW GmbH (‘Funke Medien’), a company incorporated under German law, operates the website of the daily newspaper Westdeutsche Allgemeine Zeitung. On 27 September 2012, it applied for access to all UdPs drawn up between 1 September 2001 and 26 September 2012. The application was refused on the ground that disclosure of the briefings could have adverse effects on security-sensitive interests of the federal armed forces. The defendant nevertheless obtained, by unknown means, a large proportion of the UdPs and published several of them as the ‘Afghanistan-Papiere’ (Afghanistan Papers).

11. The Federal Republic of Germany took the view that Funke Medien had infringed its copyright over those reports and thus brought an action against it seeking an injunction, which was upheld by the Landgericht (Regional Court, Germany). Funke Medien’s appeal was dismissed by the appellate court. By its further appeal on a point of law, Funke Medien maintains its form of order seeking dismissal of the injunction action.

12. In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

‘(1) Do the provisions of Union law on the exclusive right of authors to reproduce (Article 2(a) of Directive 2001/29) and publicly communicate their works, including the right to make works available to the public (Article 3(1) of Directive 2001/29), and the exceptions or limitations to these rights (Article 5(2) and (3) of Directive 2001/29) allow any latitude in terms of implementation in national law?

(2) In which way are the fundamental rights of the Charter … to be taken into account when ascertaining the scope of the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29 to the exclusive right of authors to reproduce (Article 2(a) of Directive 2001/29) and publicly communicate their works, including the right to make works available to the public (Article 3(1) of Directive 2001/29)?

(3) Can the fundamental rights of freedom of information (second sentence of Article 11(1) of the Charter) or freedom of the media (Article 11(2) of the Charter) justify exceptions or limitations to the exclusive rights of authors to reproduce (Article 2(a) of Directive 2001/29) and publicly communicate their works, including the right to make works available to the public (Article 3(1) of Directive 2001/29), beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29?’

13. The request for a preliminary ruling was received at the Court on 4 August 2017. Written observations were lodged by Funke Medien, the German, French and UK Governments and the European Commission. The same parties were represented at the hearing on 7 July 2018.

Assessment

Admissibility of the questions referred for a preliminary ruling

14. The dispute in the main proceedings concerns the communication to the public, by Funke Medien, of UdPs, namely periodic briefing reports on the operations of the federal armed forces abroad, over which the Federal Republic of Germany claims to hold copyright. The exact content of those documents is not known to the Court, as Funke Medien was required to withdraw them from its website. Nonetheless, it is possible to consult UdÖs, that is to say the public version of UdPs. At the hearing, the parties disagreed on the differences between those two versions: according to the German Government, UdPs are much more voluminous than UdÖs, while, according to Funke Medien, UdPs contain only a few more items of information than UdÖs. In any event, the fact that Funke Medien decided to publish the UdPs it had managed to obtain suggests that the two versions differ as regards the information provided. However, in my opinion, it can be assumed that even if the information contained in UdPs is more detailed, the form in which it is presented (its expression, in copyright language) is the same in both cases. That form, as is apparent from the UdÖs, makes me seriously...