Summary

The Court of Justice of the European Union (CJEU) has considered the breadth of copyright protection for portrait photographs including an assessment of the limitations to be applied in relation to criticism and review and public security.

Background

The case revolves around photographs taken of Natascha Kampusch who was kidnapped in Austria in 1998. The photographs were originally used as part of a search appeal for Ms Kampusch by the police. When she escaped from captivity in 2006, in the absence of an up-to-date photograph, the newspapers used the photograph taken by Ms Painer of Ms Kampusch prior to her kidnapping. They also used the photograph in order to create a "photo-fit" of what Ms Kampusch would look like in 2006.

Ms Painer claimed infringement of copyright through republication of the original photograph without her permission and the publication of the photo-fit which she claimed was an adaptation of her original work.

The newspaper and magazine publishers claimed that portrait photographs entail only a small degree of creative freedom and the copyright protection awarded to the photographs should therefore be narrow. They also argued that the photo-fit was free for them to use as it was part of the search for Ms Kampusch, that they had received the photographs from a news agency and that there was no indication as to the author of the photographs.

The law

Article 12 of the Berne Convention for the Protection of Literary and Artistic Works states:

"Authors of literary and artistic works shall enjoy the exclusive right of authorising adaptations arrangements and other alterations of their works."

Article 5(3) of Council Directive 2001/29/EEC states that Member States may allow exceptions and limitations to the application of copyright ownership in certain circumstances:

"...(d) quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been made lawfully available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;

(e) use for the purposes of public security or to ensure the proper performance or reporting of administrative, parliamentary or judicial proceedings."

Article 6 of Council Directive 93/98/EEC harmonising the term of protection of copyright and certain related rights (now replaced by Directive 2006/116) also states:

"Photographs which are original in the sense that they are the author's own intellectual creation shall be protected..."

The issues

The questions referred by the Austrian Courts raised a number of issues including:

  • Is the scope of copyright narrower in relation to portrait photographs than for other works meaning that they have weaker or no protection against adaptations? The implication being that, in this case, the newspapers did not need Ms Painer's consent to publish the photo-fit.
  • In considering the scope of copyright in relation to portrait photographs the court considered what is the "author's own intellectual creation" test?
  • Were the newspapers required to print the name of the author in their publication in order to meet the criticism and review exception to copyright protection under Article 5(3)(d)?
  • For copyright protection to be limited in the case of public security, did this require that the security authorities must make a "specific, current and express appeal for publication of the image"? Further, is the media entitled, in the absence of such an appeal, to publish a photograph in the interests of public security?

The decision

In relation to the question of copyright protection for portrait photographs, the court relied on the findings of the court in Case C-5/08 Infopaq International where it was held that copyright would only apply in relation to a work such as a photograph where it is the author's own intellectual creation. The court stated that the photographer can make creative choices at several points in the production of the photograph including in the preparation, posing, framing and development of the photograph. These constitute a "personal touch" and will not necessarily be minor or non-existent.

As to whether the degree of protection for portrait works is inferior, the court stated that, in accordance with the findings in Infopaq, the protection afforded by the exclusive right to authorise or prohibit the reproduction of a work "must be given a broad interpretation." Further, there was nothing in any of the relevant directives that could be interpreted to mean that the extent of protection should depend on differences in the degree of creative freedom in the production of different works. Accordingly the protection afforded to portrait works could not be inferior to other works including other photographic works.

In considering the exception of criticism and review, the court did not enter into an assessment of the criticism and review criteria but focused on whether the failure to include the name of Ms Painer meant that the exception could not apply. The court held that it was legitimate to assume that the news agency had obtained the photographs lawfully and therefore would have been aware of the name of the author.

It was therefore possible for subsequent users to also ascertain the name of the author and use it accordingly and the publishers should have done so. However, if the original reason that the photographs were made available to the public was through the national security authorities then the use would fall within the public security exceptions and there would be no requirement to indicate the author's name.

With regard to public security, the court concluded that the newspapers could not, of their own volition, use a copyright work by claiming the objective of public security. It is for the competent authorities to make such determinations although a "specific, current and express appeal" was not necessary.

Newspapers could contribute to public security by publication of a photograph of a person for whom a search was launched but such initiatives had to be taken in co-ordination with the authorities. The court reiterated the Advocate General's view that the sole purpose of Article 5(3)(e) was to protect public security and not to strike a balance between such protection of intellectual property and the freedom of the press.

Comment

The most interesting aspect of this decision is undoubtedly the interpretation of the breadth of copyright protection and whether differing standards can apply to differing works. In not finding differing levels of copyright protection and maintaining the bar for originality relatively low, the decision is consistent with the UK Court of Appeal's findings in NLA v Meltwater.

It may also shed some light on the decision of the Grand Chamber in Football Association Premier League Ltd & Others v Karen Murphy which resulted in speculation among commentators as to whether copyright could exist in the live broadcast of a football match, a point which the Grand Chamber did not reach any conclusions on. If the approach applied by the CJEU in Painer is applied to the live broadcasting of a football match then surely decisions as to when to use different camera angles, to switch to different perspectives or to focus in on an element of play would all constitute a "personal touch" contributing to an intellectual creation and a copyright work.