[Guest post] The General Court of the EU wanders into copyright law, and gets disoriented

The IPKat is delighted to host the following guest post by Katfriend Frederic Blockx on yesterday's interesting and important decision of the General Court in T-185/19.

Here's what Frederic writes:

The General Court of the EU wanders into copyright law, and gets disoriented

by Frederic Blockx

No access for Kats

Traditionally, the last few days of the Term yield an impressive harvest of cases out of Luxembourg.

Amidst the flurry of this year’s judgments, the EU General Court ruled (T-185/19 Public.Resource.Org) on a challenge by two non-profit organisations against a decision by the European Commission not to grant free and public access to harmonised standards adopted by the European Committee for Standardisation (CEN). In doing so, the Court draws arguments from copyright law, which warrant closer attention.

The challenge to the status quo was brought by the non-profits Public.Resource.Org, Inc. and Right to Know, the former of which was also at the origin of the challenge in US Federal Courts regarding the free accessibility to the consolidated laws of the State of Georgia, which resulted in a ruling by the US Supreme Court last year [IPKat here].

Article 4(2) first indent, of Regulation (EC) No 1049/2001, regarding public access to European Parliament, Council and Commission documents, states that the institutions shall refuse access to a document where disclosure would undermine the protection of commercial interests of a natural or legal person, including intellectual property.

The applicants argued that the European Commission had misinterpreted and/or misapplied Article 4(2), since this provision does not protect the requested harmonised standards, as (1) no copyright protection of the requested harmonised standards is possible because they are part of EU Law, and (2) the requested harmonised standards lack originality and therefore do not benefit from copyright protection. In the Court’s analysis, two salient points intersect with these arguments: the role of national copyright law, and the question of copyrightability itself.

National copyright law

First the Commission argued that it is not entitled to question the copyright status of documents when such status has been accorded by national law. The Court did not follow this argument.

The Court, referring to the Opinion of (then) AG Jääskinen in case C-5/11, stated that copyright “remains, notwithstanding progressively closer harmonisation, largely governed by national law. Its existence and the scope of its protection, and more particularly exceptions to that protection, which are not the subject of either EU harmonising provisions or international provisions to which the European Union or its Member States are bound, continue to be defined by the laws of the Member States”. While technically correct, this statement seems overly theoretical. The case law of the Court of Justice itself shows how far the harmonisation has been brought. This was already the case at the time (2012) of the Opinion (which refers to the seminal cases in fn 14) and is even more the case nowadays. This reference also seems to have been drawn out of context, as the focus there was the remedies in case of copyright infringement, not about the basis of protection.

Referring to the Berne convention, the Court stated that the scope of copyright protection for the same work may differ according to the place where that protection is sought. Again, this is technically correct, but highly theoretical considering the far-reaching harmonisation of the basis of protection. Intellectual property is of course protected by Article 17(2) of the EU Charter. The harmonisation of the concept of originality encompasses all the subject matters covered by EU directives (Infopaq, para 36). And as Eleonora Rosati pointed out (Originality in EU Copyright, Edward Elgar 2013, 172–174), and has been confirmed by the Court in the specific context of communication to the public in the Svensson case, pre-emption of EU law leads to the fact that “Member States would not be entitled to provide alternative forms of protection to sub-original (at least in the EU sense) subject-matter”. It is therefore hard to see where national law of Member States could lead to a broader copyright protection than that offered by EU law.

Nevertheless, the Court — correctly, it would seem — comes to the conclusions that “is for the authority which has received a request for access to third-party documents, where there is a claim for copyright protection for those documents, inter alia, to identify objective and consistent evidence such as to confirm the existence of the copyright claimed by the third party concerned”, hereby refuting the Commission’s refusal.

However, the Court concluded that the Commission had based its decision on objective and consistence evidence. The reasoning seems somewhat circular, as the Court approved of the Commission decision to withhold accessibility to the standards as this would run afoul of copyrights. These copyrights are implied by a previous policy document of the CEN, which considered itself copyright holder of the standards. This amounts to rubber-stamping the statement ‘I am the holder of a valid copyright because I say I am’.

Therefore, the Court’s conclusion that “the conditions for the enjoyment of copyright protection, the extent of the protection for that right, and more particularly exceptions to that protection, remain governed by the laws of the Member States, which are free to determine the protection to be given to official texts of a legislative, administrative or judicial nature, and, as is apparent from the case-law, those conditions may be contested solely before the courts of the Member States”, seems flawed. It is also not evident to see how parties might challenge the Commission decision before national courts.

The copyrightability of standards

The Court then reached the material question: can standards be protected by copyright?

It correctly stated the principle “that, if a subject matter is to be capable of being regarded as original, it is both necessary and sufficient that the subject matter reflects the personality of its author, as an expression of his or her free and creative choices”, referring to the Brompton case. However, this amounts to mere lip service to the stated rule, as neither the Commission in the disputed decision, nor the Court in this judgment fundamentally grapple with the question whether standards can ‘reflect the personality of the author’ (as we will see below). The same reasoning applies to the presence of free and creative choices. This seems quite antithetical, given the very concept and purpose of standards. As these typically are the results of both scientific testing followed by an agreement by a committee, it is hard to see how the originality standard could be met, let alone be accepted at face value. A consistent application of the same reasoning would even logically lead to the copyrightability of patent claims.

However, the Court did not make this analysis while examining the claim regarding copyrightability of standards, but rather while discussing the first point (standards as EU law). Addressing the actual question of copyrightability in function of the originality requirement, the Court stated that “there is no support at all for the applicants’ argument that CEN, when drafting the requested harmonised standards, does not exercise free and creative choices”. This also seems to be at odds with the general philosophy of IP enforcement: it is the copyright holder, or generally, the party invoking copyright protection, who should prove the existence thereof, not the other party who should prove the absence of it. The claim was then rejected stating that the applicants “merely make assertions, without substantiating their claims with any analysis or refuting the Commission’s arguments set out in the confirmatory decision” and that “they do not specify how the restrictions on creativity which are imposed by the standardisation legislation are such that those harmonised standards are not capable of reaching the threshold of originality required at EU level”.

Hence, the Court concluded that the Commission’s reasoning was sufficient. This analysis is striking by its shallowness, merely stating that these standards “were drafted by [their] authors in a way that is sufficiently creative to deserve copyright protection” and “that ‘the length of the texts implies that the authors had to make a number of choices (including in the structuring of the document) […] results in the document being protected by copyright” and are thus protectable by copyright. Since the originality requirement should not be meaningless, his statement would probably not convince a national court faced with the substance and well-versed in the subject matter. Phonebooks too can be very lengthy and well-structured; that doesn’t mean that they are the result of creative choices, as the US Supreme court correctly found in 1991 in the Feist case.

Considering these problems, it would not be surprising to see this judgment of the General Court being appealed to the Court of Justice with a reasonable likelihood of success.