Copyright - Beck v Spiegel Online

Court of Justice of the European Union





















Jane Lambert

Court of Justice of the European Union (K. Lenaerts, President, Arabadjiev and Judges Vilaras, von Danwitz, Toader, Biltgen and Lycourgos and Presidents of Chambers, Juhász, Ilešič, Bay Larsen and S. Rodin) Case C-516/17 Beck v Spiegel Online GmbH [2019] EUECJ C-516/17, EU:C:2019:625, ECLI:EU:C:2019:625, [2019] WLR(D) 440

This was a reference under art 267 of the Treaty on the Functioning of the European Union by the Bundersgerichthof (German federal supreme court) on the interpretation of art 5 (3) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10). It arose in the course of an appeal against an appellate court's decision to dismiss an appeal from a first instance court's finding that Spiegel Online GmbH had infringed Volker Beck's copyright.

The Action
Until 2017 Mr Beck had been a member of the German federal parliament. While he was an MP Mr Beck had written an article on criminal justice which had been published with modifications as part of a collective work.  The modified article had attracted some criticism. Part of Mr Beck's response was that the modifications were not his and had been made without his authority and that they distorted his opinion.  To reinforce his point Mr Beck distributed copies of his original article to the press and online media including Spiegel Online and posted it to his own website. Spiegel Online published the original manuscript without Mr Beck's permission as part of an article contesting his response.  Mr Beck sued Spiegel Online for copyright infringement and won in the Landgericht (court of first instance) and Oberlandsgerichtht (court of appeal}.  In its appeal to the Supreme Court, Spiegel Online argued that it had a right to publish the article under the legislation implementing the Information Society Directive and German constitutional law. 

The Reference
The German supreme court considered that the interpretation of art 5 (3) (c) and (d) of the Information Society Directive read in the light of fundamental rights, in particular of freedom of information and of freedom of the press, was not obvious. It stayed the proceedings and referred the following questions to the Court of Justice:

"(1) Do the provisions of EU law on the exceptions or limitations [to copyright] laid down in Article 5 (3) of Directive 2001/29 allow any discretion in terms of implementation in national law?
(2) In what manner are the fundamental rights of the Charter of Fundamental Rights of the European Union to be taken into account when determining the scope of the exceptions or limitations provided for in Article 5 (3) of Directive 2001/29 to the exclusive right of authors to reproduce (Article 2 (a) of Directive 2001/29) and to communicate to the public their works, including the right to make their works available to the public (Article 3(1) of Directive 2001/29)?
(3) Can the fundamental rights of freedom of information (second sentence of Article 11 (1) of the Charter) or freedom of the press (Article 11 (2) of the Charter) justify exceptions or limitations to the exclusive rights of authors to reproduce (Article 2 (a) of Directive 2001/29) and communicate to the public their works, including the right to make their works available to the public (Article 3 (1) of Directive 2001/29), beyond the exceptions or limitations provided for in Article 5 (3) of Directive 2001/29?
(4) Is the making available to the public of copyright-protected works on the web portal of a media organisation to be excluded from consideration as the reporting of current events not requiring permission as provided for in Article 5 (3) (c), second case, of Directive 2001/29, because it was possible and reasonable for the media organisation to obtain the author’s consent before making his works available to the public?
(5) Is there no publication for quotation purposes under Article 5 (3) (d) of Directive 2001/29 if quoted textual works or parts thereof are not inextricably integrated into the new text — for example, by way of insertions or footnotes — but are made available to the public on the Internet by means of a link in [Portable Document Format (PDF)] files which can be downloaded independently of the new text?
(6) In determining when a work has already been lawfully made available to the public within the meaning of Article 5 (3) (d) of Directive 2001/29, should the focus be on whether that work in its specific form was published previously with the author’s consent?"

The Directive
The Information Society Directive requires member states to provide for the exclusive right of authors to authorize or prohibit direct or indirect, temporary or permanent reproduction and communication of their works to the public subject to a number of exceptions.  Two of those exceptions were laid down in art 5 (3) of the Directive:

"(c) reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author’s name, is indicated, or use of works or other subject matter in connection with the reporting of current events, to the extent 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;
(d) quotations for purposes such as criticism or review, provided that they relate to a work or other subject matter which has already been lawfully made 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...."

The First Question
The Court of Justice of the European Union considered the first question between paragraphs [16] and [39] of its judgment and replied as follows:

"Article 5(3)(c), second case, and (d) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as not constituting measures of full harmonisation of the scope of the exceptions or limitations which they contain."

The Third Question
The Court considered the third question between paragraphs [40] and [49] and ruled:

"Freedom of information and freedom of the press, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union, are not capable of justifying, beyond the exceptions or limitations provided for in Article 5 (2) and (3) of Directive 2001/29, a derogation from the author’s exclusive rights of reproduction and of communication to the public, referred to in Article 2 (a) and Article 3 (1) of that directive respectively."

The Second Question
The Court addressed the second question between paragraphs [50] and [59] and decided as follows:
"In striking the balance which is incumbent on a national court between the exclusive rights of the author referred to in Article 2(a) and in Article 3(1) of Directive 2001/29 on the one hand, and, on the other, the rights of the users of protected subject matter referred to in Article 5(3) (c), second case, and (d) of that directive, the latter of which derogate from the former, a national court must, having regard to all the circumstances of the case before it, rely on an interpretation of those provisions which, whilst consistent with their wording and safeguarding their effectiveness, fully adheres to the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union."

The Fourth Question
The fourth question was considered between paragraphs [60] and [74] and decided as follows:

"Article 5 (3) (c), second case, of Directive 2001/29 must be interpreted as precluding a national rule restricting the application of the exception or limitation provided for in that provision in cases where it is not reasonably possible to make a prior request for authorisation with a view to the use of a protected work for the purposes of reporting current events."

The Fifth Question
The Court considered the fifth question between paragraphs [75] and [84] and concluded:
"Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that the concept of ‘quotations’, referred to in that provision, covers a reference made by means of a hyperlink to a file which can be downloaded independently."

The Sixth Question
The last question was addressed between [aragraphs [85] and [95] and answered as follows:

"Article 5 (3) (d) of Directive 2001/29 must be interpreted as meaning that a work has already been lawfully made available to the public where that work, in its specific form, was previously made available to the public with the rightholder’s authorisation or in accordance with a non-contractual licence or statutory authorisation."

This is an important decision on balancing two importing conflicting public interests, namely the protection of intellectual property rights and press freedom and freedom of information. It will be interesting to see how the Bundergerichtsdof applies the Court's guidance in the context of Spiegel Online's appeal.  Possibly decisive will be the finding that freedom of information and freedom of the press, are not capable of justifying a derogation from the author’s exclusive rights beyond those provided by art 5 (3) (c) and (d) of the Directive.  Should anyone wish to discuss this article or copyright law in general, he or she should call me on 020 7404 5252 or send me a message through my contact form.

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