Three copyright decisions issued by the Court of Justice (CJEU) at the end of July this year explore the relationship between copyright and fundamental rights. They emphasise that Member States may not expand on or limit the permitted exceptions included in the Copyright Directive (2001/29/EC) and must apply the law on fundamental rights guaranteed by the EU Charter rather than national rules. Focusing in particular on the exceptions for reporting current events and quotation, the Court explains that the exceptions contain an element of flexibility within themselves as national courts must strike a balance between the exclusive rights of the copyright owner and the rights of the user. However, the interpretation of the scope of the exceptions should be consistent across the EU.
Spiegel Online v Beck (Case C-517/17)
Spiegel Online is a well-known German news website. From 1994-2017 Volker Beck was a member of the German parliament (Bundestag) for the Greens. In September 2013, during an election campaign, he was challenged about an article he had written in 1988 about criminal policy relating to sexual offences against minors. He contended that the meaning of the article had been changed by amendments made by the publisher, and he distanced himself from the article. Spiegel Online then published a piece arguing that the central statement of Beck’s article had not in fact been changed by the publisher and that Beck had misled the public in this regard; it made the original version of the article available via hyperlinks. Initially, Beck was successful in claiming copyright infringement. However, Spiegel appealed and the German Supreme Court referred questions to the CJEU about the relationship between the exceptions and the fundamental right of press and information freedom. The Court makes it clear on the one hand that the national court must interpret the exceptions in a way that takes full account of fundamental rights under the EU Charter but on the other that it cannot go beyond the terms of the exceptions themselves, which are designed to protect press and information freedom. It also held that a quotation can include a reference made by means of a hyperlink.
A consequence of this decision for the German court is that it cannot rely on a national rule which requires consent of the author for use in reporting current events in some circumstances.
Funke Medien (Case 469/17)
Funke Medien, the daily website of the German newspaper, Westdeutsche Allgemeine Zeitung, published a series of low level military status reports about the deployment of German troops abroad without permission, whereupon the German government obtained an injunction against them based on copyright infringement. Funke Medien argued that, notwithstanding any copyright in the reports (a point which was disputed), the principles of freedom of information and freedom of the press, enshrined in Article 11 of the EU Charter, justified their publication. The CJEU rejected the idea that these fundamental rights could simply override the copyright owner’s rights in this way. In order to succeed in its arguments Funke Medien would need to bring their use of the material within the terms of one of the permitted exceptions to copyright. Again the Court emphasised that these exceptions are designed to protect freedom of information.
Pelham (Case C-476/17)
This case involved the controversial subject of ‘sampling’, often associated with musical art forms such as hip hop and rap. In 1997 German rap artist Sabrina Setlur released the song Nur Mir, which used a two-second clip of a drum riff as a continuous background loop. The clip had been ‘sampled’ – borrowed - from pioneering techno band Kraftwerk’s 1977 hit Metall auf Metall. Kraftwerk claimed infringement of the copyright in the sound recording. One of the key issues was the balance between copyright protection and the artistic freedom to use samples to create a new artwork. In accordance with the general policy of EU law to give IP right holders a high level of protection, the Court of Justice confirmed that unauthorised sampling from third party sound recordings infringed copyright even if very short. This meant that a German national law which allowed sampling in some limited situations was not permissible. However, the Court held that although sampling even a short clip will in principle amount to copyright infringement, there will be no infringement where the borrowed extract is included in the new sound recording in a modified form ‘unrecognisable to the ear’ (the Court does not expand on exactly what is meant by this). The Court does not categorise this as an exception but holds that where the clip borrowed is not recognisable this does not constitute reproduction at all. The Court also confirmed the view of the Advocate General that samples may in some circumstances benefit from the copyright exception for quotations where there is an intention of entering into a ‘dialogue’ with the work from which the sample was taken. The concept of a ‘quotation’ does not, however, extend to a situation where the work from which the sample is taken cannot be identified.
Implications of these cases
These cases may be regarded as small but significant steps in the ongoing EU harmonisation project for copyright. The Court of Justice makes it clear that the terms of the exceptions in the Copyright Directive themselves define the interplay between copyright and the right to freedom of information and expression and that national courts should focus on developing a consistent interpretation of these. The idea of a general concept of ‘fair use’ appears to be ruled out. However, it is arguably an inflexible approach which could make it difficult for courts to adapt exceptions to new situations in the fast-moving digital context. It is interesting to see that in Pelham the Court sought to modify the meaning of reproduction rather than reaching for an exception, so this may be an approach we will see more of in the future.