AG Szpunar advises CJEU to rule that copyright cannot subsist in military report in important fundamental rights case

Freedom of the press

Last year The IPKat reported on two new important referrals to the Court of Justice of the European Union (CJEU) from Germany. One of them, known as the Afghanistan Papers case [it is now Funke Medien NRW GmbH v Federal Republic of Germany, C-469/17] is asking about the interplay between copyright protection and freedom of expression and freedom of the press.

Background

The reference was made in the context of litigation between the German Government and German newspaper WAZ over the unauthorized publication by the latter of the so called 'Afghanistan Papers', ie confidential military reports on the operations of German armed forces in that region in the period 2005-2012.

The German Federal Court of Justice (BGH) stayed the proceedings, and asked the CJEU to clarify whether and to what extent the assessment of prima facie copyright infringement and the applicability of the exceptions in favour of the press (Article 5(3)(c) of the InfoSoc Directive) and for quotation (Article 5(3)(d) of the same directive) is informed by a fundamental rights analysis. 

As readers will know, the Charter of Fundamental Rights of the European Union (Charter) has status of primary source of EU law (on the same foot of the Treaties), and the number of cases in which the CJEU has had to consider the interplay between various fundamental rights (intellectual property is protected under the right to property in Article 17(2)) has increased over the past few years.

What is at stake in the Afghanistan Papers case is whether copyright protection can be trumped by the need to safeguard freedom of the press and freedom of information, and whether fundamental rights may be directly invoked to prevent enforcement of copyright.

AG Szpunar's Opinion

This morning Advocate General (AG) Szpunar delivered yet another thoughtful Opinion that begins with a quote from Erich Maria Remarque's masterpiece, All Quiet on the Western Front.

AG Szpunar highlighted how that novel contains what is probably the best-known military report in literature: 'All quiet on the Western front' [and here's already something interesting: the AG stated that not just the novel, but also that phrase, is entitled to copyright protection. All this is important because in certain countries - including the UK - titles and short phrases have been traditionally considered excluded from the scope of copyright protection. In addition, after Infopaq it has remained uncertain how short a phrase can be to be still regarded as eligible for protection and sufficiently original].

This said, the present case concerns - not a fictional report - but rather an 'entirely real' report. The issues for the Court to tackle are the following:

1. Does a military report satisfy the requirements for copyright protection?
2. Must other factors such as freedom of expression, protected by the Charter, be taken into account in order to minimize, or even rule out, such protection? 

The AG advised the Court to reformulate the questions referred and move - not from the German Government's copyright - but rather from the newspaper's freedom of expression/information under Article 11 of the Charter. The question for the CJEU to address would thus be whether Article 11 precludes a Member State from relying on its copyright over documents in order to curtail the freedom of expression laid down in that article.

Copyright protection in a military report

Starting from the former, in order to provide his response, AG Szpunar deemed it necessary to consider, first, copyright protection in the report. To this end, he noted three crucial elements of this IP right:

• Copyright only vests in the expression of ideas, facts and information, not ideas, facts or information per se (idea/expression dichotomy). This means that 'raw' information, that is information in its unaltered state, is not eligible for protection. This conclusion is in line with Article 1(8) of the Berne Convention.
• Copyright vests in 'works'.
• Works must be sufficiently 'original', in the sense of being 'their author's own intellectual creation'. The AG revisited CJEU case law on the point, notably Infopaq and its progeny, and recalled that "[e]lements such as intellectual work and the skill of the author cannot as such justify the protection of the subject matter at issue by copyright if such work and skill do not express any originality."

At this point the AG expressed his doubts that a military report could be original in the sense clarified by the CJEU:

It seems to me to be rather unlikely that the author or authors of those documents, whose identity is unknown but who are probably civil servants or officers of the federal armed forces, were able to make free and creative choices in order to express their creative abilities when drafting those documents. The content of purely informative documents that are inevitably drafted in simple and neutral terms is entirely determined by the information they contain, so that such information and its expression become indissociable, thus precluding all originality. A degree of effort and skill is required to draw them up, but those elements on their own cannot justify copyright protection. During the discussions in that regard at the hearing, the parties also argued that the structure of the documents at issue could itself be protected by copyright. However, that structure consists in setting out evenly spaced information concerning each foreign mission in which the federal armed forces are participating. Therefore, I do not think that the structure of those reports is more creative than their content.

Freedom of expression

In my view, there can be little doubt that the AG was correct in this part of the analysis, and made appropriate considerations in light of CJEU case law on originality [I discuss all this a bit more at length in this Katpost]. 

But the AG did not stop here. He in fact advised the CJEU to rule out that copyright protection would subsist in the military report also on fundamental rights grounds and the provision of Article 51 of the Charter.

Copyright and fundamental rights

The AG noted how copyright itself contains internal mechanisms allowing possible conflict between fundamental rights, including freedom of expression, and copyright to be resolved. These include the idea/expression dichotomy and exceptions and limitations:

Those exceptions enable works to be used in different situations which may fall within the scope of different fundamental rights and freedoms, without at the same time depriving authors of the substance of their rights, namely respect for the relationship linking them to their works and the possibility of exploiting those works economically.

Copyright, however, is also subject to external limitations:

[t]he application of copyright law, like any other body of law, remains subject to the requirement of respect for fundamental rights, respect which may be reviewed by the courts. If it became apparent that there were systemic shortcomings in the protection of a fundamental right vis-à-vis copyright, the validity of copyright would be affected and the question of legislative amendment would then arise. However, there may be exceptional cases where copyright, which, in other circumstances, could quite legitimately enjoy legal and judicial protection, must yield to an overriding interest relating to the implementation of a fundamental right or freedom.

The AG recalled how the European Court of Human Rights (ECtHR) has addressed the relationship between copyright protection and freedom of expression in cases like Ashby Donald and The Pirate Bay. In neither case did the ECthHR find that freedom of expression had been infringed, due to the nature of the unauthorized acts at issue (respectively, the making available of photographs of fashion shows and the operation of the infamous The Pirate Bay). 

However, the case at hand is different, in that the unauthorized communication of the allegedly protected work (the military report) contributed to a public interest debate and the work consists of official documents of a State of an informative nature. 

Copyright protection should be denied/restricted on fundamental rights grounds

The AG considered that the provisions of the Charter are addressed at Member States as per Article 51 therein. The result would be, according to the AG, that copyright protection in a military report should be denied in order not to contravene the spirit and substance of the Charter.

It is true that freedom of expression is not limitless (the European Convention of Human Rights explicitly refers to national security as a possible ground to restrict it), and it is also true that the publication of confidential documents falls within the scope of freedom of expression. 

However, national security is not what the background national proceedings are about: the German Government, in fact, has been relying on copyright, not national security, in its litigation.

According to the AG, copyright should not be acknowledged in the military report for the following reasons.

First, it is true that copyright and freedom of expression are fundamental rights. But Member States do not enjoy them: the rationale of fundamental rights is to protect individuals from the State, not vice versa: "If the State were able to invoke its individual rights, other than the public interest, in order to limit fundamental rights, the result would be the destruction of those fundamental rights."

The only ground on which a State could rely upon to justify the limitation of a fundament right would be the public interest, ie something that Germany did not do in the present case.

In addition, the ECtHR has clarified that a restriction on freedom of expression must be necessary: is it necessary in this case to protect copyright by preventing the publication of a military report?

Copyright has two main objectives. The first is to protect the personal relationship between the author and his work as his intellectual creation and therefore, in a sense, an emanation of his personality. This primarily involves the area of moral rights. The second objective is to enable authors to exploit their works economically and thus earn an income from their creative endeavours. This involves the area of property rights, subject to harmonisation at EU level. In order for a restriction on freedom of expression flowing from copyright to be characterised as necessary, it must meet those two objectives. However, it seems to me that the protection by copyright of military reports such as those at issue in the main proceedings meets neither.

Most importantly, copyright cannot be a substitute for lack of public interest: 

Thus, having considered that the interest in protecting the documents at issue as confidential information did not justify the resulting restriction on freedom of expression, the Federal Republic of Germany decided to achieve the same result by invoking its copyright over those documents, despite the fact that copyright pursues completely different aims and it is not even established that those documents are works for the purpose of copyright.

AG Szpunar

According to the AG, holding otherwise would mean that not only the restriction on freedom of expression is not necessary, but is also highly damaging:

One of the most important functions of freedom of expression and its constituent element, freedom of the media, specifically mentioned in Article 11(2) of the Charter, is to enable citizens to keep a check on power, a key aspect of any democratic society. That check can be exercised, for instance, by the disclosure of certain information or certain documents the content or even the existence (or inexistence) of which the authorities would like to conceal. Some information must of course remain secret, even in a democratic society, if its disclosure poses a threat to the essential interests of the State and, in consequence, society itself. Documents must therefore be classified and protected in accordance with the procedures established for that purpose, which should be applied subject to judicial oversight. However, outside the framework of those procedures or if the State itself declines to apply them, the State cannot be allowed to invoke its copyright over any document whatsoever in order to prevent scrutiny of its actions.

Conclusion

All the above considered, the AG advised the CJEU to rule that Article 11 of the Charter, read in conjunction with Article 52(1) thereof, must be interpreted as precluding a Member State from invoking copyright under the InfoSoc Directive in order to prevent the communication to the public, in the context of a debate concerning matters of public interest, of confidential documents emanating from that Member State. That interpretation does not prevent the Member State from applying, in compliance with EU law, other provisions of its domestic law, including those relating to the protection of confidential information.

It will be interesting to see, first of all, whether the CJEU follows the AG in his suggestion to reformulate the questions referred and, most importantly, in the assessment of the interplay between the Government's copyright claim and freedom of expression and of the press.