CJEU rules on the scope of the "quotation" limitation to copyright infringement and the application of fundamental freedoms
Before the summer break, the CJEU released its judgment in three copyright cases. This blog will consider the impact of the judgment in the case of Spiegel Online (C-516/17). We have already separately posted blogs on the other two cases: Pelham (C-476/17) and Funke Medien (C-469/17) see: CJEU stays in tune with phonogram producers - sampling without permission can infringe a phonogram producer's rights, subject to certain conditions and CJEU delves into the world of German military reports and questions of copyright.
This case concerned an article published by Spiegel Online regarding an article by German politician, Volker Beck that was originally published in a book in the 1980s. The German court referred six questions to the CJEU. The majority of the judgment appears to be a revision of familiar and well-rehearsed principles of construction of EU law with repeated circular references back to the wording of the relevant Directives. However, there are some particular comments of interest on the interpretation of the exception to copyright infringement for the purposes of reporting current events and "quotation" more generally (see the response to question 5 below).
One of the reasons this case may have received particular attention is due to the subject matter of the particular facts. Volker Beck was the author of a manuscript that was published in 1988 under a pseudonym as part of a book. This manuscript related to criminal policy in sexual offences committed against minors and it appears that some controversial comments were attributed to Mr Beck. Mr Beck asserted that the publisher had amended his original manuscript without his consent.
The manuscript was discovered in 2013 and put to Mr Beck in the lead up to his election to the Bundestag. Mr Beck showed the text to the press to demonstrate that it had been altered, but he did not give consent to its publication. Mr Beck also published the manuscript and the article on his own website accompanied by a statement disassociating himself from the contribution and stated that the original publication of the article was unauthorised.
Spiegel then published an article that asserted that the publisher had not altered the original article. Spiegel made the original version of the manuscript and the article available via hyperlinks.
At first instance, Mr Beck succeeded in a claim for copyright infringement. However, on appeal the German appeal court referred six questions to the CJEU. These concerned the interpretation of the exceptions and limitations to copyright and the relationship with fundamental rights.
CJEU's ruling on questions referred
- Do the exceptions or limitations to copyright set out in Article 5(3) of the InfoSoc Directive allow any discretion in terms of implementation in national law?
The answer to this question predominantly revisits the wording of the Directive and established principles of EU law.
First, it is an exhaustive list of exceptions and limitations that member states "may provide". The wording of the Directive therefore makes clear that Article 5(3) is not fully harmonised.
Secondly, Article 5(3)(c) and (d) are limited "to the extent justified by the informatory purpose" and "in accordance with fair practice, and to the extent required by the specific purpose". This allows each member state discretion in how to strike the balance between the relevant interests. The objective of the Directive is to establish a high level of protection for authors and ensure the proper functioning of the internal market.
The CJEU confirmed that it is for member states to define the detailed conditions for these exceptions, although such criteria must be within the limits of Article 5(3) itself.
- In what manner should fundamental rights be taken into account when determining the scope of the exceptions and limitations in Article 5(3)?
Under general principles of EU law, when transposing the Directive and applying it in national courts, the courts must be consistent with the wording and effectiveness of the provisions but also not rely on an interpretation which would conflict with fundamental rights.
- Can the fundamental rights of freedom of information justify exceptions or limitations beyond those in Article 5(3)?
The CJEU referred back to the first question – the list in Article 5(3) is exhaustive, as confirmed in recital 32. The CJEU also confirmed that the "mechanisms allowing those different rights and interests to be balanced are contained in [the] Directive itself". Therefore, although member sates should have regard for the fundamental freedoms in the application of Article 5(2) and 5(3), the CJEU was clear that freedoms cannot justify further exceptions or limitations beyond those specified in the Directive. They also did not appear to expect a separate analysis by the courts of the fundamental freedoms beyond considering the rights and limitations set out in the Directive.
- Does Article 5(3) apply in a situation where it is not possible to obtain the author's consent?
The CJEU again focussed on the wording of the Directive, which does not require the right-holder's consent prior to the reproduction under this limitation. They held that the Directive must be interpreted as precluding any national rule which restricts the application of the exception in cases where it is not possible to make a request for consent.
- Is there no publication for quotation purposes under Article 5(3)(d) if quoted textual works are not inextricably integrated into new text but are instead made available through a link?
The CJEU has dealt extensively with the use of hyperlinks and other means of making content available online in the cases regarding the communication to the public such as GS Media (C‑160/15) and Renckhoff, (C‑161/17). (See our blog on the latter case here: School Taught a Lesson on Communicating Copyright Works.) It therefore held that it did not matter whether the quoted work was "inextricably integrated" and Article 5(3)(d) covers a situation where reference is made by way of a hyperlink.
In the context of this question, the CJEU also made some interesting comments about the meaning of "quotation" generally. The starting point is that it should have its "usual meaning in everyday language". However, the CJEU expanded on this as follows (emphasis added):
"As regards the usual meaning of the word ‘quotation’ in everyday language, it should be noted that the essential characteristics of a quotation are the use, by a user other than the copyright holder, of a work or, more generally, of an extract from a work for the purposes of illustrating an assertion, of defending an opinion or of allowing an intellectual comparison between that work and the assertions of that user."
They also stated "the use of the quoted work must be secondary in relation to the assertion of that user" given that it cannot conflict with the normal exploitation of the work as per the three-step test in Article 5(5) of the Directive.
- In determining when a work has already been made lawfully available to the public within Article 5(3)(d) is the focus on whether the work in its specific form was published previously with the author's consent?
The court again repeated and referred back to the wording of the Directive and stated that the exception is only available for a work which has already been lawfully made available to the public. They stated that it is for the national court to consider if the work is lawfully available but this includes the express authorisation of the copyright holder, being available in accordance with a non-contractual licence and/or a statutory authorisation.
Questions 1-3: Balancing fundamental freedoms with application of copyright law
The answers to questions 1 to 3 generally are just helpful revision on how Member States can apply and interpret copyright law having regard to the fundamental freedoms. The judgment makes clear that although any application of the general rules should be consistent with the fundamental freedoms, this cannot alter or expand the wording of the Directive itself and such analysis should already be inherent in the application of the rights and limitations set out in the Directive.
There has been a recent trend to refer to the fundamental freedoms as part of an analysis of the application of copyright law. This decision may assist to prevent the growth of this. It prevents freedom of expression or freedom of the press being used to justify any attempt to expand the scope of the exceptions and limitations to the rights of the author. Therefore, this should strengthen the rights of authors.
Questions 4 and 6: Consent of rights-holder and lawfully available
It is thankful that the CJEU reached the view that the exceptions and limitations are not precluded where the consent of the rights-holder is not sought since this is precisely the purpose of having such exceptions and limitations. In respect of the sixth question, the answer effectively repeated the Directive and left it as a matter for the national courts to determine.
Therefore, these questions do not add much to the existing law.
Question 5: Definition of quotation
The conclusion that a hyperlink is covered by Article 5(3)(d) is far from controversial. Of far more interest in this question was the additional commentary provided by the CJEU generally on the scope of the meaning of "quotation". This is of particular interest in the UK given that the way in which our legislature has implemented exceptions and limitations in the Directive in section 30(1ZA) of the Copyright, Designs and Patents Act 1988.
Section 30(1ZA) permits use of a quotation from the work provided the standard fair dealing criteria is satisfied and that the extent of the quotation is no more than is required by the specific purpose for which it is used. Given the absence of a particular purpose in this sub-section, the exception has been seen by many commentators as effectively allowing a broad 'fair use' defence by the back door. It allows the user to consider their own purpose and how this can be satisfied, rather than fit within one of the other statutory purposes such as criticism and review, research, caricature, parody or pastiche. Therefore, this guidance on the interpretation of "quotation" is helpful to understand the scope of this exception under the CDPA.