The Court of Justice of the European Union (the “CJEU”) recently decided on a matter regarding the balance between the exclusive rights of an author referred to in art. 2(a) and in art. 3(1) of the Information Society Directive1 on the one hand, and the freedom of information and the freedom of the press on the other as set out in art. 5(3)(c) and (d). In this article, we will review the essential parts of CJEU’s reasoning and provide some remarks on the outcome of the ruling.
In the Spiegel Online case2, the German Bundesgerichtshof (Federal Court of Justice) requested a preliminary ruling regarding the interpretation of art. 5(3) of the Information Society Directive in the proceedings between an internet news portal, i.e. Spiegel Online, and Volker Beck, who was a member of the Bundestag (Federal Parliament) at the time of reference to the CJEU. Volker Beck had written a manuscript about sexual offences committed against minors and, in 1998, the manuscript was published in an article to a book. According to Volker Beck, the publisher had, prior to publication and without his consent, amended the title of the manuscript and shortened one of its sentences and by doing so Volker Beck contended that the meaning of the manuscript had been altered. In 2013, the original version of the manuscript was found, and Volker Beck made this version available to several newspaper editors to clear his name. Although he did not consent to any publications of the manuscript and the article, they were instead published on his own website together with statements of dissociation printed on each page.
Notwithstanding the above, Spiegel Online published an article in which it stated that the content of the published manuscript had in fact not been altered and that Volker Beck had misled the public by stating this. Additionally, the manuscript and the article were made available for download by clicking on hyperlinks provided on the internet news portal.
Volker Beck brought the case before the German courts claiming that Spiegel Online had unlawfully infringed his copyright to the manuscript and the article, which consequently led to several questions being referred to the CJEU.3
Reporting of current events
In relation to Spiegel Online’s publication and alleged copyright infringement, the CJEU stated that art. 5(3)(c), second case, may limit the rights set out in art. 2 and 3, as regards the reporting of current events, to the extent that it is 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.4 According to the CJEU, the
wording of the provision entails that member states cannot make the exception or limitation subject to a requirement to obtain the author’s prior approval, as long as the conditions set out in art. 5(3)(c) are satisfied.5
It was stated by the CJEU that the wording in art. 5(3)(c), second case, shall have the same meaning as used in everyday language, while considering the legislative context and the rules’ purposes. Thus, the reporting cannot merely consist of a notice of the current event, but nor does it require a deeper analysis from the user.6 It was also noted that the information relating to such current event shall be published without delay, which is why an absolute requirement to obtain consent from the rightsholder would contradict, or even prevent, such publications.7
Furthermore, the CJEU stated that the purpose of art. 5(3)(c) is to enforce the freedom of information and the freedom of the media as set out in art. 11 of the Charter of Fundamental Rights of the European Union (the “Charter”) and that no further restrictions than those strictly necessary may be imposed.8 Notwithstanding this, the CJEU also ruled that the freedom of information and of the press, as set out in the Charter, may not justify any other exceptions or limitations other than those set out in art. 5(2) and (3) of the Information Society Directive and that the limitations set out therein are balanced in themselves.9 Thus, the CJEU stated that provisions which restrict the application of art. 5(3)(c) shall be precluded in cases where it is not reasonably possible to request authorization for use of a protected work prior to reporting on current events.10
Hyperlinks as quotations
On the question whether or not “quotations” in art. 5(3)(d) are deemed to include references made through hyperlinks to files which can be downloaded independently and thus not being inextricably integrated in the text, e.g. by footnotes or insertions, the CJEU stated in the affirmative. According to the CJEU, the use of hyperlinks contributes to a sound operation of the internet and establishes a direct and close link between the quoted work and the users’ own reflections, allowing an intellectual comparison to be made. The scope of the exception regarding quotes in art. 5(3)(d) is however not unlimited. The CJEU ruled that the use of quoted work must be secondary in relation to the user’s own statements, since it follows from art. 5(5) that the use cannot be so extensive as to conflict with normal exploitation of the work. Furthermore, the use of the manuscript and article for the purposes of quotation must not be extended beyond what is necessary to achieve the informatory purpose of that quotation.11
While the CJEU confirmed that Volker Beck’s work was lawfully made available in 2013, in regard to the disassociated version it was left to the national court to ascertain whether the publication of
the original versions of the manuscript and the article, published in 1988, was necessary to achieve the informatory purpose.12 Additionally, it was for the German court to assess whether the manuscript and the article were published in accordance with fair practice and to the extent required by the specific purpose of the quotation.13
In many ways, the judgment reiterates previous copyright case law and illustrates that the balance between an author’s exclusive right and the freedom of expression and freedom of information must be fair.14 However, there are certain general statements made by the CJEU which could be further discussed, e.g. that member states are not allowed to implement national limitations or exceptions which are not included in the Information Society Directive. Strictly interpreted, the wording indicates that limitations and exceptions other than the ones set out in art. 5(2) and (3), regardless of the development of copyright and its case law within the European Union, have already been considered and presented. The fact that the Charter, being part of the European Union’s primary law, will not at any time be able to extend the limitations and exceptions set out in art. 5(2) and (3) of the Information Society Directive, which constitutes secondary law, is somewhat surprising and interesting in comparison with the European Court of Human Rights’ approach to matters concerning the freedom of information. The European Court of Human Rights reviews whether an intellectual property right could limit the freedom of information by assessing if such limitation is prescribed by law, is justifiable and if the use of such limitation is necessary in a democratic society. However, the CJEU rather takes an opposite approach by assessing if the freedom of information could limit the rights pertaining to an intellectual property right, solely based on the limitations as set out in the Information Society Directive, which arguably indicate that the CJEU’s view in regard to intellectual property rights in themselves when balanced against the freedom of information differs from the view of the European Court of Human Rights.
Furthermore, the CJEU’s reasoning regarding the fact that a “quotation” according to art. 5(3)(d) of the Information Society Directive comprises hyperlinks could have been further elaborated. By indicating that a hyperlink, which refers to entire copyrighted works, is in some cases allowed, one could question the actual impact of such exception and/or limitation and to what extent it may be used. It could be argued that the use of the quoted work, through a hyperlink to the entirety of the work, would always be deemed as primary, rather than secondary, in relation to the assertions of the user. It could also be questioned whether the quotation of such protected work would always be deemed in conflict with a normal exploitation of the work or that it would unreasonably prejudice the legitimate interests of the rightsholder as set out in art. 5(5).
Considering the above, the actual impact of the possibility to use hyperlinks to entire works as quotations is uncertain. However, it is left to the courts of the member states to interpret the ruling and make an assessment on a case-by-case basis, taking into consideration, inter alia, the link between the quoted work and the user’s own reflections and whether such quotation extends beyond what is required to attain the informatory purpose of the quotation.
In light of the above, the judgment is one of many in the copyright area and the CJEU’s reasoning is likely to be developed, elaborated and/or amended through further rulings in the future.