The European Court of Justice (ECJ) has ruled on questions relating to exceptions for reporting current events and quotations, arising from a dispute involving the operator of an online news portal over publication of an article from which the author had dissociated himself.
Article 5(3) of the Copyright Directive (2001/29/EC) (Article 5(3)) sets out exceptions and limitations to authors' exclusive rights to reproduce and communicate their works and to prohibit their reproduction.
One exception to Article 5(3) is reporting current events, to the extent justified by the informatory purpose and so long as the source, including the author's name, is indicated, unless this turns out to be impossible (Article 5(3)(c)). Another exception to Article 5(3) is quotations for purposes such as criticism or review, relating to a work that has already been lawfully made available to the public, where, unless impossible, the source, including the author's name, is indicated, and where the use accords with fair practice (Article 5(3)(d)).
In 1988, a book was published that contained a manuscript on criminal policy relating to child sexual offences, written by B but with amendments made by the publisher to which B objected.
In 2013, the manuscript was discovered in archives. B, who was now a member of the Federal Parliament in Germany, showed the manuscript and article to the press but did not give them permission to publish. Instead, he published the manuscript and article on his own website accompanied by a statement dissociating himself from the contribution and stating that the original publication of the article was unauthorised.
An online news portal, S, subsequently published an article contending that the central statement in the article had not been altered by the publisher and made the original versions of the manuscript and the article available via hyperlinks.
B successfully claimed for breach of copyright. S appealed.
The German appeal court referred questions to the ECJ regarding the implementation and interpretation of Article 5(3)(c) and (d) in the light of fundamental rights, in particular, freedom of information and freedom of the press.
The ECJ confirmed that exceptions for reporting current events and for quotations in the Copyright Directive are not measures of full harmonisation. The Copyright Directive does not fully harmonise the exceptions and limitations to the rights holder's exclusive right to reproduce his or her work and to communicate it to the public. EU member states have significant discretion, within set limitations.
The principles of freedom of information and freedom of the press in Article 11 of the Charter of Fundamental Rights of the EU (the Charter) did not justify a derogation from the author's exclusive rights of reproduction and of communication to the public beyond the exceptions or limitations already provided for in Article 5(3).
In balancing the rights of the author and the rights of users of subject matter referred to in Articles 5(3)(c) and (d) a national court must rely on an interpretation of those provisions that fully adheres to the fundamental rights in the Charter. The protection of intellectual property rights is not absolute and it is necessary, where appropriate, to take into account the fact that the nature of the speech or information at issue is of particular importance, notably in political discourse and discourse concerning matters of public interest.
The use of a protected work for the purposes of reporting current events does not in principle require a prior request for authorisation. Article 5(3)(c) precludes a national rule restricting the application of the exception or limitation in cases where it is not reasonably possible to make a prior request for authorisation before using a protected work to report current events. The provision did not require the rights holder's consent and indeed requiring consent would disregard the need for the exception.
The quoted work need not be inextricably integrated, by insertions or reproductions in footnotes, into the subject matter citing it. On the contrary, the quotation exception in Article 5(3)(d) includes a reference made by means of a hyperlink to a file that can be downloaded independently. Nevertheless, the use in question must be made in accordance with fair practice, and to the extent required by the specific purpose. S's use of the manuscript and article from 1988 for the purposes of quotation must not be extended beyond the confines of what is necessary to achieve the informatory purpose of that particular quotation.
The reference in Article 5(3)(d) to a work that has already been lawfully made available to the public means that the work in its specific form was previously made available to the public with the rights holder's authorisation or in accordance with a non-contractual licence or statutory authorisation.
It was for the national court to decide whether the initial publication in 1988 was legal, that is, whether the publisher had the right contractually or otherwise to make the changes they did in the absence of B's consent. However, the ECJ noted that the more recent publication by B, with the statement of dissociation, was lawful, but only so far as it was accompanied by those statements of dissociation.
This decision confirms that the quotation exception is not without limitations. Fundamental rights like freedom of expression do not allow member states to go beyond the catalogue of exceptions in Article 5 to create new exceptions, nor do they introduce an open-ended general fair use defence as exists in German law.
Case: Spiegel Online GmbH v Beck C-516/17.
First published in the October issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.