BREAKING: CJEU rules that use of a protected work for the purpose of reporting current events does not, in principle, require authorization

Politician Volker Beck started
the background national litigation
(photo by Mathias Schindler; CC-BY-SA)

Together with its judgments in Funke Medien [here] and Pelham [here], this morning the Grand Chamber of the Court of Justice of the European Union (CJEU) also delivered its ruling in Spiegel Online, C-516/17 [Katpost here].

This referral, also from Germany, focused on the quotation exception in the InfoSoc Directive and the compatibility with EU law of an open-ended general copyright exception like the German 'free use'.

In his Opinion back in January, AG Szpunar advised the CJEU to rule that:

• Quotation within Article 5(3)(d) of the InfoSoc Directive requires one to consider the purpose of the quotation at issue, and
• 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.

For what it matters, in my view this was once again a correct assessment and a thoughtful analysis provided by AG Szpunar.

Today's judgment

In today's decision, the text of which is not yet available on the Curia website, the CJEU ruled that the use of a protected work for the purposes of reporting current events does not, in principle, require a prior request for authorisation.

According to the press release:

In today’s judgment, the Court rules, first of all, that the directive does not fully harmonise the exceptions and limitations to the copyright holder’s exclusive right to reproduce his or her work and to communicate it to the public. The Member States therefore enjoy significant discretion, albeit highly circumscribed, in its transposition and application.  

Next, the Court states that freedom of information and freedom of the press, enshrined in the Charter of Fundamental Rights of the European Union, are not capable of justifying, beyond the exceptions or limitations provided for in the directive in that regard, a derogation from the author’s exclusive rights of reproduction and of communication to the public.  

As far as concerns the balance which a national court must strike between the exclusive rights of the author and freedom of expression, the Court underlines that the protection of intellectual property rights is not absolute and that 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 the public interest.  

In particular, as regards the possibility for the Member States to allow the use of protected works 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), the Court holds that, in applying such an exception or limitation, the Member States cannot subject the exception or limitation to a requirement for the author’s prior consent [...] 

As far as concerns the quotation exception provided for in the directive, the Court finds that it is not necessary that the quoted work be inextricably integrated, by way of insertions or reproductions in footnotes, into the subject matter citing it. On the contrary, such quotations may also be made by including a hyperlink to the quoted work.  

Nevertheless, the use in question must be made in accordance with fair practice, and to the extent required by the specific purpose. Accordingly, Spiegel Online’s use of the manuscript and article from 1988 for the purposes of quotation must not be extended beyond the confines of what it necessary to achieve the informatory purpose of that particular quotation.  

Lastly, the Court states that the exception for quotations applies only if the quotation in question relates to a work which has already been lawfully made available to the public. That is the case where the work, in its specific form, was previously made available to the public with the rightholder’s authorisation or in accordance with a non-contractual licence or statutory authorisation.  

A detailed analysis will be provided as soon as possible: stay tuned!