August 5, 2019

Each week the claimant, the Federal Republic of Germany, has a military status report drawn up on the foreign deployments of the German Armed Forces and on developments at the deployment locations. These Parliament briefings are sent to certain members of the German Parliament, to sections of the German Ministry of Defence, and to other ministries. The documents are categorised as “classified documents – Restricted”, which is the lowest level of confidentiality. The Federal Republic also publishes summaries of the briefings for the public.

The defendant, Funke Medien NRW GmbH, operates the online newspaper, Westdeutsche Allgemeine Zeitung. In September 2012, it applied for access to all briefings covering the previous eleven years. The application was refused on the ground that disclosure could adversely affect the security interests of the Armed Forces. Funke Medien nevertheless managed to obtain a number of briefings, which it published as the “Afghanistan Papers”.

The Federal Republic issued copyright infringement proceedings against Funke Medien in the German courts. The claim was upheld and Funke Medien’s subsequent appeal was dismissed. Funke Medien appealed to the Federal Court of Justice, which referred three questions to the CJEU on interpretation of the copyright exceptions and limitations under Articles 5(2) and (3) of the Directive. In particular, it asked whether the rights of freedom of information or freedom of the media could justify derogation from the copyright holder’s rights beyond the exceptions and limitations under Articles 5(2) and (3).

The CJEU found that:

• if the military status reports constituted purely informative documents, then, as the Advocate General had said in his Opinion, the authors might not have been able to express their creativity in an original manner so as to produce a work that was their own intellectual creation. Nevertheless, it was for the German court to decide whether the military status reports were protected by copyright or not;
• if the military status reports were protected by copyright, freedom of information and freedom of the press were not capable of justifying, beyond the exceptions or limitations in the Directive, any derogation from copyright, in particular, from the author’s exclusive rights of reproduction and communication to the public. To find otherwise would, the CJEU said, “endanger the effectiveness of the harmonisation of copyright and related rights effected by that directive, as well as the objective of legal certainty pursued by it”.
• the Directive aims to strike a fair balance between the rights holder’s interests and the interests and fundamental rights of users of protected subject matter, in particular their freedom of expression and information as guaranteed by Article 11 of the Charter of Fundamental Rights, as well as of the public interest. This is covered by the Directive itself, in that it provides not only rights holders with exclusive rights, but also provides for exceptions and limitations to those rights; and
• insofar as the Charter of Fundamental Rights contains rights that correspond to those guaranteed by the European Convention on Human Rights, Article 52(3) of the Charter seeks to ensure consistency between the two without adversely affecting the autonomy of EU law and that of the CJEU. Case law from the European Court of Human Rights shows that, to strike a balance between copyright and the right to freedom of expression, the fact that the nature of the “speech” or information in question is of particular importance, for example in political discourse and matters of public interest, must be taken into account. Given the way in which Funke Medien published the reports on the internet, it was not inconceivable that such use might be covered by the exception concerning current events reporting under Article 5(3)(c).

(Case C-469/17 Funke Medien NRW GmbH v Federal Republic of Germany EU:C:2019:623 (29 July 2019) — to access the judgment in full, go to the curia search form, type in the case number and follow the link).