AG Szpunar advises CJEU to rule that quotation exception is not limitless and that there is no fair use in the EU

Volker Beck 
(photo by Mathias Schindler
CC-BY-SA)

After the late 2018 Opinions in Funke Medien [here] and Pelham [here], yesterday Advocate General Maciej (AG) Szpunar - IPKat's copyright person of the year 2018 - issued his Opinion in Spiegel Online, C-516/17 [background here], the third German referral asking the Court of Justice of the European Union (CJEU) to weigh in on, among other things, the interplay between copyright and other fundamental rights.

The Opinion, which is not yet available in English, advises the CJEU to rule that, among other things:

1. The exception within Article 5(3)(d) of the InfoSoc Directive requires one to consider the purpose of the quotation at issue, and 
2. Fundamental rights like freedom of expression do not allow EU Member States to go beyond the catalogue of exceptions in Article 5 therein to envisage new exceptions or even introduce a general fair use clause.

Background

As readers might remember, this referral originated in the context of litigation initiated by a German politician (Volker Beck) who, in 1988, authored a work about “sexual acts of adults with children”. The publisher apparently edited the manuscript without the author's consent and the resulting publication was, according to the author, a distortion of his views.

The original manuscript was found in an archive in 2013, and the author submitted it to several newspapers to demonstrate what he had actually written. Although he did not authorize publication of the manuscript or extracts thereof, he consented to newspapers linking to a statement he published on his own website.

The publisher also released a press report on its own portal, Spiegel Online, to support its view that the original manuscripts had not been distorted. To this end, the publisher included a link that allowed users to download both the original manuscript and the resulting publication. No link to the author’s website was provided.

The politician argued successfully at both first instance and on appeal that all this would amount to copyright infringement.

The case is currently pending before Germany's Federal Court of Justice, which has stayed the proceedings and asked the CJEU to clarify, among other things, how far the 'quotation' exception can go and what discretion EU Member States enjoy when transposing and applying relevant EU copyright directives.

The AG Opinion

AG Szpunar started by noting the relevance of freedom of expression (which has been recognized as a fundamental freedom since the 1789 Declaration of the Rights of the Citizen) and freedom of the press in a democratic society. However, the drafters of the 1789 Declaration itself were also aware of how freedom of expression could limit third-party rights and freedoms. As such, Article 4 therein provides that

Liberty consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights. These bounds may be determined only by Law.

Freedom of EU Member States

This said, the AG tackled the question of Member States' discretion when transposing relevant exceptions within Article 5 of the InfoSoc Directive into their own laws, and noted how this is a similar issue to the one at stake in Pelham.

Like in his Opinion in that case, AG Szpunar reiterated that - while EU Member States are free to determine the means for transposing relevant EU directives into their own laws - they are bound to achieve the objectives of those directives. In the case of the InfoSoc Directive, these include providing a 'high level of protection' of economic rights.

Article 5(3)(c)

The referral also includes a question concerning the exception within Article 5(3)(c) of the InfoSoc Directive, in particular whether the making available to the public of copyright works on the web portal of a press undertaking does not fall within its scope because it was possible and reasonable for the press undertaking to obtain the author’s consent before making his works available to the public (this is the approach under the German news reporting exception).

According to the AG, such a limitation of the exception would not be problematic from an EU law standpoint because it is Article 5(3)(c) itself that limits reproductions 'to the extent justified by the informatory purpose'. Accordingly [the translation from Italian is mine]

It is my view that such limitation does not only concern the extent of the authorized reproduction and communication, but also those situations in which the exception applies, that is those in which the author of the report could not be reasonably required to request the authorization of the author of the work reproduced and communicated in the context of said reporting. As such, in my view, a limitation of the exception at issue like the one under German law, not only does not contravene the relevant provision in Directive 2001/29, but is actually in line with the nature and objective of said exception. 

According to the AG, the reason why this exception would not apply in the present case is different, and lies in the fact that the EU provision should be read in light of Article 10bis(2) of the Berne Convention. This provision states that:

It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public. 

The exception is limited to 'works seen or heard in the course of the event' subject to the reporting. This is not the case of the background proceedings, as the work reproduced is a literary work which one needs to read, rather than just view or hear.

Kat quotation

Article 5(3)(d)

This said, the key issue in this case relates to the scope of the quotation exception. The AG noted that:

• The exception in principle is not limited to certain types of work only, and 
• The methods for including a qutotation into one's own work and identifying the quotation might differ depending on the situation. Also the provision of a link might be appropriate for the sake of making a quotation.

The problem is not, however, how that quotation may be realized but - rather - the extent of what may be quoted. In the present case what the defendant reproduced is the entirety of the claimant's work.

Although the CJEU appears to have allowed the possibility of quoting a photographic work in its entirety (in Painer), it has also spoken of 'reproduction of extracts' (Painer, para 135). The Berne Convention originally spoke of short quotations, while the current text states that the extent of a quotation must not exceed what is justified by the purpose. A similar formulation can be found in Article 5(3)(d). It follows that a quotation may be also of a work in its entirety, insofar as the aim pursued justifies it.

In any event, a quotation must not compete with the original work. Holding otherwise would allow one to elude the economic rights of an author over their work, rendering them devoid of any content thereof:

the quotation exception may not be applied in situations in which, lacking the authorization of the author, a work is made available to the public on the internet, in its entirety, in the form of an accessible and autonomously downloadable file.

In addition, allowing a quotation that was a substitute for the original would also be contrary to the three-step test in Article 5(5) of the InfoSoc Directive and Article 9(2) of the Berne Convention, notably the requirement that an exception does not conflict - whether actually or even just potentially - with a normal exploitation of the work. 

Fundamental rights: no fair use in Europe

Having excluded that the exceptions within Article5(3)(c) and (d) would apply, the AG considered whether the use made by the defendant of the claimant's work might be nonetheless justified in light of Article 11 of the Charter of Fundamental Rights of the EU (freedom of expression/information and freedom of the press). This is also a question at issue in Funke Medien and Pelham.

In line with his Opinions in those cases, the AG proposed to rule that normally it is necessary to respect the choices made by legislature, considering that copyright already contains limitation and exceptions aimed at reconciling the exclusive rights of authors with third-party freedoms and rights, including freedom of expression/information.

Holding that it might be possible to supplement the exceptions and limitations provided for in Article 5 of the InfoSoc Directive with further exceptions and limitations would also run contrary to the harmonization objectives of the EU. Above all:

such possiblity would be tantatmount to introducing into EU law some sort of "fair use clause", in that basically any use of a work that infringes copyright could rely, in one way or another, on freedom of expression. This way, the protection actually available to the rights of authors would depend on the sensitivity of the judges in each Member State towards freedom of expression, thus transforming any harmonization effort into an unattainable goal.

Comment

The Opinion of AG Szpunar might appear restrictive to some - especially with regard to the scope of quotation and the take on fair use - but it is not at all surprising, also considering earlier CJEU case law and the wording of the InfoSoc Directive.

That quotation is not borderless appears correct, considering the wording of the Berne Convention and the InfoSoc Directive, as well as the three-step test. This said, consideration of the circumstances at issue is key: the AG was correct in reiterating that a quotation might be also of a work as a whole, but whether that might be the case depends on the purpose of said quotation. 

Finally, the fundamental rights assessment also appears correct and - even if the Opinion does not mention it, it is in line with the case of law of the European Court of Human Rights which has tackled the interplay between copyright and freedom of expression, eg Ashby Donald [here], The Pirate Bay [here] (see also here). 

Let's now see what the CJEU rules. One will have an idea of the fate of Funke Medien, Pelham and Spiegel Online as soon as the first of these three decisions is out.