On 29 July 2019, the Court of Justice of the European Union (CJEU) delivered a judgment that could have serious impact on freedom of expression. The case (C‑469/17) concerns Funke Medien NRW GmbH, the editor of the German daily newspaper Westdeutsche Allgemeine Zeitung, and Bundesrepublik Deutschland (Federal Republic of Germany). It follows a request in the proceedings between those two parties concerning the publication of classified documents (with the lowest degree of confidentiality) called “Parliament briefings”, or “UdPs”, by the German publisher.

Copyright or freedom of the press?

The UdPs in question are military status reports regularly sent to Federal ministries about the deployment of the German military abroad. Funke Medien tried initially to obtain a series of documents via a freedom of information request, which was denied. Later on, the publisher obtained the documents via an unknown source and published them as part of the “Afghanistan papers”. The German government took the view that Funke Medien had infringed the copyrights by publishing the UdPs. The Regional Court in which the dispute was being settled referred the case to the CJEU for a preliminary ruling regarding the exception to use copyrighted work for journalistic reasons (Article 5(3) of Directive 2001/29, the “Infosoc Directive”) and the limits of freedom of information and freedom of the media in relation to copyrighted works. Exceptions and limitations allow to use copyrighted works without specific authorisation from the rights holder (the author or the entity owning the rights of reproduction).

CJEU replies: Copyright is king. Or freedom of the press. It depends.

In the preliminary ruling, the Court stated that military reports can be protected by copyright “only if those reports are an intellectual creation of their author which reflect the author’s personality and are expressed by free and creative choices”. Whether military reports (or any other piece of public information) is protected by copyright must be, according to the CJEU, defined case by case by national member states courts. This national interpretation also applies to exceptions in Article 5(3) of the Infosoc Directive, in this case for reproduction rights for journalistic purposes. The CJEU said that it is also up for the Member States to decide how copyright exceptions and limitations apply on a case by case basis, but that, when implementing EU law, States need to “ensure that they rely on an interpretation of the directive which allows a fair balance to be struck between the various fundamental rights protected by the European Union legal order”.

The Court said that even if the UDPs were considered works protected by copyright, Funke Medien had the right to use the work for journalistic purposes under the copyright exception, and that therefore the publication of the papers was legal. However, this does not set a precedent for similar piece of content in other Member States (or even in Germany), since it’s up to the national courts to decide how to balance fundamental rights at stake (protection of “Intellectual Property” versus freedom of expression and freedom of information, for example).

Towards nationally implemented upload filters?

This judgment does not act in vacuum. It’s only a few months since the EU copyright Directive was adopted. From the very beginning of the discussion EDRi and other civil society groups raised the alarm on the risks of Article 13, and we published thorough analysis of Article 17 (then Article 13). One of the main risks of the adopted text is that, in order to ensure that they make their “best efforts to ensure the unavailability of specific works”, platforms will be obliged to use upload filters and scan each text, video, image (yes, including memes!) and audio uploaded to their services to avoid being sued by rights holders. Despite the widely extended claims that the copyright Directive would not lead to upload filters, it became pretty clear pretty quickly that it was all about implementing upload filters.

National parliaments are deciding how to implement the copyright Directive, and the way this happens could lead to upload filters taking care of how even documents from public authorities with a public relevance become part of the public discourse. The EU-approved censorship machines could decide to block this content to avoid judicial disputes over “copyrighted” content with a public relevance, such as the ones at stake in this court case.

Get in touch with your national EDRi members, Wikimedia chapter or consumer organisation, and make sure upload filters are not going to be mandatory in your country!

CJEU judgment Funke Medien NRW GmbH vs Bundesrepublik Deutschland, Case C‑469/17 (29.07.2019)
http://curia.europa.eu/juris/document/document.jsf?text=&docid=216545&pageIndex=0&doclang=en

Press Release: Censorship machine takes over EU’s internet (26.03.2019)
https://edri.org/censorship-machine-takes-over-eu-internet/

Re-Deconstructing upload filters proposal in the copyright Directive (28.06.2018)
https://edri.org/redeconstructing-article13/

(Contribution by Diego Naranjo, EDRi)

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