The Afghanistan paper and Spiegel Online cases: the Court of Justice clarifies Member States' margin of appreciation on exceptions and limitations to copyright


In two partially identical judgments issued on 29 July 2019, the Court of Justice provided significant clarifications on the degree of discretion that Member States and their respective authorities have when implementing and interpreting the exceptions and limitations provided under Article 5 of Directive 2001/29/EC (“InfoSoc Directive”), namely the derogations from reproduction rights and the right to communication to the public which Articles 2 and 3 award copyright holders. This way, the Court of Justice explored the degree of harmonization enshrined in the InfoSoc Directive and pointed out that no general exception to copyright based on the protection of freedom of information can be obtained from currently-in-force EU law. Additionally, the Court also provided some insights regarding the specific exceptions and limitations claimed in the cases, based on informatory purposes (e.g., reporting on current events and quotations).

Facts of the case

The Court of Justice handed down the two judgments on two separate requests for preliminary rulings, both referred by the German Federal Court of Justice. In both proceedings, however, a common feature lied with the possible interpretation of copyright as an alternative to the right to confidentiality and protection of private life in a way to prevent the allegedly unlawful disclosure of information. In Funke Medien the Federal Republic of Germany sought to prevent the circulation of military status reports (the “Afghanistan papers”) which had been leaked by claiming that the latter were protected as copyrighted works (a point which the Court of Justice did not address directly). Additionally, the Republic of Germany challenged that such disclosure could be justified by resorting to the “reporting on current events” exception. In Spiegel Online the German court referred a similar set of questions to the Court of Justice in the context of proceedings where Mr. Beck challenged the distribution of an original version of a manuscript he authored on a web portal in the form of a link to a file which could be downloaded.

The nature of the relevant provisions establishing exceptions and limitations

The first question referred to the Court of Justice aimed at determining the actual degree of harmonization attached to the provisions of the InfoSoc Directive defining exceptions and limitations as derogations from the exclusive rights conferred on copyright holders. This way, the Court could clarify whether Member States had any discretion while implementing the relevant EU law provisions into domestic law. According to the Court of Justice, paras. 2 and 3 of Article 5 do not constitute measures of full harmonization. Consequently, Member States have a degree of discretion when it comes to their implementation; nonetheless, such discretion must be exercised in accordance with the limits established by EU law, in accordance with the following criteria: (i.) Member States have to comply with the general principles of EU law and must adopt measures appropriate for attaining the relevant objective without going beyond what is necessary to achieve it; (ii.) such discretion cannot be used by Member States to compromise the objectives pursued by the InfoSoc Directive; (iii.) the exceptions and limitations must be applied only in certain special cases, do not have to conflict with a normal exploitation of the work and do not have to unreasonably prejudice the legitimate interest of the copyright holder; (iv) domestic provisions must respect a fair balance between the various fundamental rights protected by EU law. Accordingly, Member States are highly circumscribed, even if they enjoy a degree of discretion.

The lack of a general free speech “safe harbor”

The second question referred to the Court of Justice was intended to establish whether the protection of freedom of information and freedom of the press, grounded on Article 11 of the Charter of Fundamental Rights of the EU, was capable of justifying a derogation from the author’s exclusive rights of reproduction and of communication to the public beyond the exceptions and limitations provided under Article 5, paras. 2 and 3, respectively, of the InfoSoc Directive. The Court of Justice answered the question by noting that the list of exceptions and limitations is an exhaustive one, as the InfoSoc Directive strikes a fair balance between copyright (protected by Article 17, para. 2, of the Charter) and other possibly competing interests, such as freedom of information. That balance would be affected if Member States were free to derive a general free speech exception from Article 11 beyond the catalogue enshrined in Article 5, whose purpose would ultimately be circumvented, leading to negative effects on the functioning of the internal market of copyright and related rights. The abovementioned exceptions and limitations, in fact, already encapsulate the balance drawn by the directive between the protection of exclusive rights and that of users to have access to copyrighted works. Accordingly, in the view of the Court, no general derogation can be enforced beyond the set of exceptions and limitations enshrined in Article 5, paras. 2 and 3.

The margin of appreciation of national courts

The next question referred to the Court of Justice concerned the margin of appreciation afforded to national courts while striking a balance between copyright and other rights of users. Most notably, the German court asked the Court of Justice to clarify if national courts, while seeking to obtain that balance, may depart from a restrictive interpretation of the exceptions and limitations to adhere to a different one, taking into account the need to uphold freedom of expression and freedom of information. The Court of Justice has shifted from the premise that, in principle, any derogation from a general rule must be interpreted strictly. However, in the specific field of copyright, the relevant exceptions and limitations do aim to confer rights on the users of copyrighted works. Such rights, in turn, are to be given a broad interpretation, to safeguard their effectiveness and their purpose. The Court of Justice, in this respect, has observed that Article 17, para. 2, of the Charter does not afford copyright an absolute protection, as nothing in that provision nor in the case law of the Court suggests that such right is inviolable. Accordingly, in the view of the Court, national courts, when striking the balance between copyright and freedom of information, having regard to all the circumstances of the case, must rely on an interpretation of the respective provisions which (i.) is consistent with their wording, (ii.) safeguards their effectiveness and (iii.) fully adheres to the fundamental rights enshrined in the Charter.

Prior request for authorization

The fourth question referred to the Court of Justice (only in Spiegel Online) concerned the compatibility with EU law of a national provision restricting the application of the exceptions and limitations in cases where it is not reasonably possible to make a prior request for authorization to use a work for reporting on current events.

First of all, the Court noted that the relevant provision does not require the rightholder’s consent prior to the reproduction or communication to the public of a protected work. This specific exception and limitation, in fact, only requires that the use is made in connection with the reporting of current events, provided that the source is indicated and that the use of the work is justified by the informatory purpose. In the absence of any definition, the Court focused on the meaning of the words used in Article 5 of the InfoSoc Directive. The act of reporting must be intended as that of providing information on current events: it does not require the user to analyze the relevant event in detail (such clarification was of particular importance in the proceedings regarding the leak of military status reports). As to the notion of “current event”, the Court interpreted it as an event that, at the time at which it is reported, is of informatory interest to the public. Also, the Court of Justice observed that Article 5, para. 3, requires that the source be indicated unless this turns out to be impossible and the use is made to the extent justified by informatory purposes, in accordance with the principle of proportionality.

Second, the Court pointed out that when current events occur, it is necessary that information is circulated quickly; such assumption would be difficult to reconcile with the requirement of the author’s prior consent, which would make it excessively hard to provide information to the public in a timely fashion.

Finally, the Court asserted that requiring the user of copyrighted work to seek the authorization of the rightholder where reasonably possible would mean disregarding the need of specific exceptions and limitations to permit the use of the relevant work.

On the basis of the foregoing, the Court of Justice found that a national rule restricting the application of the exception or limitation at hand in cases where it is not reasonably possible to make a prior request for authorization for the purposes of reporting current events would conflict with EU law.

The meaning of “quotations”

The fifth question analyzed by the Court of Justice in Spiegel Online focused on the notion of quotations, the meaning and scope of which, moreover, the InfoSoc Directive does not define. This step was necessary to determine whether a quotation, as a derogation from copyright, could be considered as such by the use of a hyperlink.

The Court observed that in everyday language the latter stands for the use of a work or an extract of the same for the purposes of illustrating an assertion, of defending an opinion or of allowing an intellectual comparison between the quoted work and the assertions of the user. The user of a protected work relying on this exception must establish a direct and close link between the quoted work and their own thoughts. However, the work must not necessarily be integrated, with insertions or reproductions in footnotes, into the subject matter citing it. Accordingly, a quotation may be made by including a hyperlink to the quoted work.

In the view of the Court of Justice, such option is consistent with the legislative context, as hyperlinks contribute to the sound operation of the Internet, which is of particular importance to the freedom of information and to the exchange of opinions and information in that network. Therefore, the concept of quotations covers a reference made with a hyperlink to a file which can be downloaded independently.

“Lawfully Available to the public?”

The last point explored by the Court of Justice in Spiegel Online deals with the requirement that a work has already been lawfully made available to the public. The referring court had asked the Court of Justice to establish whether such wording implied that the work, in its specific form, had been published previously with the author’s consent. Under the InfoSoc Directive, such characterization is a precondition for a work to be subject to the exception for quotations.

According to the Court of Justice, a work is made available to the public not only when the copyright holder has provided their consent, but also when the work is used in accordance with a non-contractual license or a statutory authorization. In the case involving the litigation between Mr. Beck and Spiegel Online, in fact, the referring court evaluated whether the publication by the author on his website of a document accompanied by statements of dissociation amounted to making it lawfully available to the public. In the view of the Court of Justice, at the time of the first publication, the documents were lawfully made available to the public only insofar as they were accompanied by the statements of dissociation. It is instead for the national court to ascertain whether the separate publication of the same manuscript by Spiegel Online without the author’s statements occurred with fair practice and in accordance with the purpose of quotation.


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