In addition to obvious examples of original art such as paintings, music and poetry, copyright protection can, inter alia, also extend to nonfictional literature such as technical reports and expert opinions. In several cases, the District Court and the Higher District Court of Cologne as well as the Court of Justice of the European Union (CJEU) confirmed that even scientific expert opinions or military mission reports which merely reproduce facts or findings can be subject to copyright protection. The individuality and creativity as precondition for protection as copyright can be achieved by the structure, selection and arrangement as well as through the linguistic mode of expression. The longer a text is, the greater the scope for design possibilities in the individual choice of words and form of presentation, and therefore the more likely it is to be recognised as being sufficiently creative.
In the first case, a German media outlet published confidential military reports online to inform their readers about security challenges that German troops were facing in Afghanistan. The German Federal Government filed a copyright infringement action against the media outlet at the District Court of Cologne and received a preliminary injunction prohibiting publication. In its defence, the media outlet argued that the reports were not protectable under copyright law since they were simply a reproduction of facts. Also the media outlet considered the action to be a misappropriation of copyright law, since according to the media outlets argumentation, the Federal Government was not interested in economic exploitation or in publication rights but simply did not want the confidential military documents to become publicly available.
During the second appeal stage before the Federal Supreme Court in Germany, the latter referred to the CJ EU in a preliminary ruling on the questions as to whether a copyright could also extend to non-fictional literature and in addition, whether the limits of copyright are only defined by the German Copyright Act or whether there is any ‘unwritten’ limitation in case the author merely instrumentalizes his copyright in order to prevent unpleasant publication rather than exercising the actual copyright through exploitation publication of the copyrighted work.
The advocate general of the CJEU, who prepares the CJEU’s decision by suggesting his opinion to the judges, expressed doubts as to the copyrightability of the military reports and also saw the misappropriation of copyright law as an unwritten limitation to protection. Eventually, the CJEU did not follow the advocate general in its decision of 29 July 2019 (C‑469/17) but confirmed the copyrightability of the reports and declared itself against an unwritten limitation for instrumentalization of copyright law. However the CJEU shared the media outlets doubts concerning the general protectability of the reports under copyright law and stated that in order to be granted copyright, the work must be the author’s own intellectual creation. This means, the creation must reflect the author’s personality, which is the case if the author was able to express his own creative abilities in the production of the work by making free and creative choices. With respect to non-fictional literature, copyrightability can arise from the choice, sequence and combination of the words by which the author expresses his or her creativity in an original manner and by which he achieves a result which is an intellectual creation. In this case, doubts were raised by the CJEU due to the report’s very formal phrasing and the possible lack of intellectual and creative expression by the respective author. In order to resolve this question for the case in question, the CJEU remitted the case back to the Federal Supreme Court , whose decision is still pending.
When – in a second case – the German Federal Office for Risk Assessment filed for a preliminary injunction for copyright infringement against an online media platform, which had published an institute’s experts opinion on the harmfulness of the herbicide Glyphosate without prior permission, the District Court of Cologne followed the CJEU’s decision and ruled in favor of the Federal Office, that the expert’s opinion was subject to copyright and should not have been made publicly available. Out of formal reasons, this decision has not come into force yet.
So far, the ruling of the CJEU seems to have strengthened a rather restrictive interpretation of German copyright law. However, depending on which position the German Supreme Court will hold, the debate surrounding the copyrightability of non-fictional literature might not have settled much.