Military status reports constituting purely informative documents, the content of which is essentially determined by the information which they contain and that those reports are thus entirely characterised by their technical function, are not protected by copyright: creativity has not been expressed in an original manner and there is no own intellectual creation. Article 5(3)(c) Copyright Directive does not constitute measures of full harmonisation of the scope of the relevant exceptions or limitations. Discretion in the implementation is circumscribed in several regards: discretion must be exercised within the limits imposed by EU law, discretion cannot be used so as to compromise the objectives of that directive, discretion also circumscribed by Article 5(5) of the directive, lastly, it is for the Member States to ensure a fair balance is struck between the various fundamental rights protected by the European Union legal order. 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 exceptions or limitations to the copyright not provided for in the Directive. In striking the balance between the exclusive rights of the author and the rights of the users of protected subject matter, the latter of which derogate from the former, a national court must rely on an interpretation of those provisions which fully adheres to the fundamental rights enshrined in the Charter. Publication of military status reports may amount to ‘use of works ... in connection with ... reporting’ within Article 5(3)(c), second case, of Directive 2001/29: reports are presented in a structured form in conjunction with an introductory note, further links and a space for comments
CJEU press release: “Freedom of information and the freedom of the press cannot justify a derogation from the rights of copyright holders beyond the exceptions and limitations set out in the Copyright Directive. However, as far as concerns military status reports, a national court must, first of all, ascertain whether the conditions are satisfied so that those reports can be regarded as protected by copyright, before considering whether the use of the reports is capable of falling within the scope of such exceptions or limitations. [...]
In today’s judgment, the Court makes clear that it is for the national court, first of all, to ascertain whether the conditions are satisfied so that military status reports are protected by copyright. Those reports can be protected by copyright only if they are an intellectual creation of their author that reflects the author’s personality and are expressed by free and creative choices made by that author in drafting those reports.
The Court adds that, if those conditions were satisfied and military status reports could therefore be regarded as ‘works’, freedom of information and freedom of the press are not capable of justifying, beyond the exceptions or limitations provided for in the Copyright Directive, a derogation from copyright, in particular, from the author’s exclusive rights of reproduction and of communication to the public.
The Court states, in that regard, that the EU harmonisation of copyright effected by that directive aims to safeguard, in particular in the electronic environment, a fair balance between, on the one hand, the interest of the holders of copyright and related rights in the protection of their intellectual property rights guaranteed by Article 17(2) of the Charter of Fundamental Rights of the European Union and, on the other hand, the protection of the interests and fundamental rights of users of protected subject matter, in particular their freedom of expression and information guaranteed by Article 11 of the Charter, as well as of the public interest. The mechanisms allowing for such a balance to be struck in an individual case are contained in that directive itself, in that it provides not only rightholders with exclusive rights but also provides for exceptions and limitations to those rights.
The Court also adds that, in so far as the Charter contains rights which correspond to those guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’), Article 52(3) of the Charter seeks to ensure the necessary consistency between the rights contained in it and the corresponding rights guaranteed by the ECHR, without thereby adversely affecting the autonomy of EU law and that of the Court of Justice. As is clear from the case-law of the European Court of Human Rights, for the purpose of striking a balance between copyright and the right to freedom of expression, that court has, in particular, referred to the need to take into account the fact that the nature of the ‘speech’ or information at issue is of particular importance, inter alia in political discourse and discourse concerning matters of the public interest. In those circumstances, having also underlined the way in which Funke Medien published the military status reports on the internet, the Court of Justice states that it is not inconceivable that such use may be covered by the exception concerning current events reporting provided for in the Copyright Directive.”