All photos are created equal – the Painer case in the CJEU

The Court of Justice of the European Union has given its decision in the Painer case (Case C-145/10). The IPKat reported earlier this year on the factual background, the questions posed to the Court, and the Advocate-General’s Opinion.

The Court’s decision answers questions on the breadth of copyright protection for works based on reality such as portrait photos, and interprets the “criticism and review” and “public security” exceptions to copyright, as well as dealing with a narrow point on jurisdiction.

As discussed below, this Kat suspects that in Painer the Court also chose to answer a question it was not asked: just what did it mean by its earlier Infopaq decision - did it harmonise the level of creativity for all copyright works or not? Recall that the UK Court of Appeal held in NLA v Meltwater that Infopaq had no effect on the UK's traditional and minimal requirement of originality for copyright works.

The background

The six German and Austrian newspaper titles
which published either Ms Painer's photos or
simulated photo-fits created from those photos,
in 2006

Briefly, the Painer case arose out of events surrounding the abduction in 1998 of Natascha Kampusch, a.k.a. Natascha K., then aged 10, and her escape in 2006. The dispute centred on the use by certain newspapers (right) of portrait photographs of Natascha K. taken by a freelance portrait photographer, Ms. Painer, prior to the child's disappearance. 

When Natascha escaped from her captor in 2006, and before she had yet made her first public appearance as an 18 year-old, the newspapers lacked an up-to-date photograph to show their readers. Rather than await the inevitable press conference, they republished the old portrait photos of Natascha as a child and also generated from these photos a simulated “photo-fit” of what she might look like in 2006. Ms Painer objected to both the republication of her pictures and the publication of the photo-fit images which were, she argued, adaptations of her work.

Are portrait photos accorded “narrow” protection?

The meatiest copyright issue for the Court was whether the scope of copyright is “narrower” for portrait photographs than for other works. The newspapers argued that realistic portrait photos only allowed a limited degree of artistic freedom so a narrow scope of protection was appropriate, the implication being that this might not extend to their photo-fit images made from the original photos.

The Court began its answer by emphasising the primacy of the “author’s own intellectual creation” standard, for copyright works, saying:

“it is important to point out that the Court has already decided, in [Infopaq], paragraph 35, that copyright is liable to apply only in relation to a subject-matter, such as a photograph, which is original in the sense that it is its author’s own intellectual creation.”

The Court explained portrait photographers could meet this standard by making creative choices in setting up, shooting and developing the photo, and so “the author of a portrait photograph can stamp the work created with his ‘personal touch’.”

The Court concluded that nothing in any EU directive “supports the view that the extent of protection should depend on possible differences in the degree of creative freedom in the production of various categories of works.” Therefore, the Court held, the protection enjoyed by a portrait photograph cannot be inferior to that enjoyed by other works, including other photographic works. [Good news for portrait photographers and photo-journalists, the IPKat thinks, but not so good for thoughtless "pointers-and-shooters" who fail to put any creative stamp on their snaps?] 

Calling London: here's what we really meant in Infopaq ...

While the conclusion reached is not surprising, the IPKat is intrigued that the Court justified the “author’s own intellectual creation” test for photographs by referring to its earlier decision in Infopaq. The Court could, after all, have simply relied on Article 6 of the Term Directive which explicitly states that the sole criterion for harmonised copyright protection of photos is that they are “original in the sense that they are the author’s own intellectual creation”.

Crouching down is strong evidence that a photographer
is exercising creative freedom deserving of copyright.
Choosing to use a tripod clinches the deal.
[Photo: Michael Henderson]

The IPKat suspects two reasons for emphasising Infopaq in this manner. Firstly, it follows a pattern seen in the recent decision of the joined cases in Football Association Premier League and Murphy, in which the starting point for any discussion of originality begins with the principles recited in Infopaq. This may be the Court’s way of cementing Infopaq into place as a landmark ruling in the copyright sphere (bad news for those who hoped it was a bit of an aberration, in that case).

Secondly, and somewhat more conspiratorially, the IPKat senses that the Court has created a line of argument in Painer which appears to expand on its Infopaq decision so that the UK Court of Appeal's interpretation in NLA v Meltwater is deprived of its foundations.

Starting in paragraph 87 we see the Court noting that it had "already decided, in [Infopaq], paragraph 35, that copyright is liable to apply only in relation to a subject-matter, such as a photograph, which is original in the sense that it is its author’s own intellectual creation". The Court then immediately explains what this phrase  means:

88      As stated in recital 17 in the preamble to Directive 93/98, an intellectual creation is an author’s own if it reflects the author’s personality. [emphasis added]

89      That is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices […].

90      As regards a portrait photograph, the photographer can make free and creative choices in several ways and at various points in its production…

And so on. So the Court is making it very clear that paragraph 35 of Infopaq intended to set out a substantive creative requirement for copyright to apply. Compare this with NLA v Meltwater where we read at [20]:

Although the Court [in Infopaq] refers to an 'intellectual creation' it does so in the context of paragraph 35 which clearly relates such creation to the question of origin not novelty or merit. Accordingly, I do not understand the decision of the European Court of Justice in Infopaq to have qualified the long standing test” [i.e. the very low originality standard established by University of London Press and by Ladbroke v William Hill].

The IPKat suspects that the CJEU is using the Painer case to reinforce the notion that Infopaq, and in particular paragraph 35 of that decision, was indeed talking about substantive requirements for originality, about questions of "novelty or merit" such as requiring that the work results from creative choices, or that the work expresses the author's personality. If so, this undermines the Court of Appeal's interpretation of the Infopaq decision and the resulting conclusion that the UK law on originality had been unaffected and still only required the author's skill, labour and judgment. (Incidentally, the 1709 Blog reported recently that NLA v Meltwater is to be heard by the UK Supreme Court, so we shall watch that space with great interest.)

Of course the IPKat may be reading too much into this issue, but whatever the reasons for emphasising the importance of Infopaq, Painer does nothing to detract from the view that the CJEU is firmly trying to impose by judicial decree the notion that “intellectual creation” is the only standard for originality, whether the Community legislation says so (as with Painer and photos) or not (as with Infopaq and literary works).

Criticism and Review exception

Self-criticism -- and a wholly favourable review

The Court was also asked to clarify the “criticism and review” exception under Art. 5(3)(d) of the Information Society Directive, which requires the work being criticised to have been legitimately made available to the public and which carries an associated obligation to identify the author when a work is criticised and reviewed in this way. 

The publishers had argued that they received Ms Painer’s photographs from a news agency but had difficulties in identifying the author and could not indicate her name on the photographs. The Court found that unless the news agency came into possession of those photographs unlawfully – without their author’s consent –the agency should have communicated the author’s name to the publishers. Therefore, the publishers were also bound in turn to indicate it in their publications. 

However, the Court then gave the newspapers a possible escape route: it was possible, the Court said, that the police were the original cause of the publication of Ms Painer’s photographs, and that they did so in pursuance of the “public security” exception (discussed further below). That exception does not require the author to be identified, so the photos could have been legally made available to the public without attribution by the national security authorities. In such a situation, and if the author’s name was not indicated, then the newspapers would be obliged to indicate their source but not necessarily the name of the author.

Public security exception

Under EU law, the extent of copyright protection can be limited where a protected work is used for the purposes of public security(Art 5(3)(e) of the Information Society Directive), and the Court held this would apply particularly in a criminal investigation involving a search for a missing person. In that regard, the Court points out that, only States - not newspaper publishers - can be regarded as appropriate and responsible for ensuring public security by appropriate measures including, for example, assistance with a search appeal.

Recall that the photographs in this case were originally published in 1998 as part of a search appeal by the police. However, the re-publication complained of by Ms Painer occurred in 2006 after Natasha K. had escaped from captivity but had not made a public appearance – so at that time there was no search underway for a missing person.

Public security poster, Victor Keppler, 1944

The Court held that once the national authorities had launched an appeal for a missing person it was conceivable that a newspaper publisher might, in specific cases, contribute to the fulfilment of an objective of public security by publishing, for example, a photograph of a person for whom a search had been launched. Any such initiative should, however, be taken in the context of action taken by the national authorities and by agreement and in coordination with those authorities, in order to avoid the risk of interfering with the measures taken by them. The Court did make it clear that it was not necessary that the security authorities had issued a prior specific, current and express appeal for publication of a photograph by the media.

The Court, incidentally, rejected the argument that newspapers should be entitled to avail of the public security exception at their own discretion for reasons to do with freedom of the press. The Court relied on the Advocate General’s opinion which said the sole purpose of this provision was to ensure the protection of public security and not to strike a balance between the protection of intellectual property and the freedom of the press.

The IPKat thinks this makes sense - much as the more lurid newspapers like to launch appeals, manhunts, campaigns, searches and so on (always in the public interest naturally) the purpose of this exception was not to facilitate newspapers by letting them off the copyright hook at their every whim, but instead was to free the hands of police authorities from getting copyright clearance before running off an urgent missing person report.

Jurisdiction to sue a defendant abroad

A good alternative to challenging a Court's
jurisdiction is simply to find a cunning spot to
hide out until the other side loses interest.

Finally (though it was dealt with first in the decision) there was a jurisdiction issue. The normal rule for multi-country litigation in the EU is that a defendant should be sued in its own jurisdiction, i.e. where it is domiciled, but it is possible under Art. 6 of Regulation 44/2001 to sue several co-defendants in the jurisdiction of just one of them, “provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.”

Some of the defendants in this case were German and some were Austrian, so the Austrian Court had asked the CJEU whether the fact that the exact legal provisions which would be invoked under Austrian and German law were not identical meant that parallel proceedings in the two jurisdictions were required.

The Court held that ireconcilable judgments could potentially arise even though the respective national legal provisions were not identical. It was therefore for the referring court to arrive at a conclusion, based on the facts, as to whether there was a risk of irreconcilable judgments. So just because Austrian and German copyright laws are not identical, this does not automatically require parallel proceedings against the co-defendants in their home countries.