Copyright Directive: CJEU rules on implementation and interpretation of copyright exceptions in Article 5(3)

How should copyright exceptions to authors’ exclusive rights to reproduce or communicate their works be implemented and interpreted?

The key takeaway

The CJEU’s ruling clarifies the application and interpretation of the copyright exceptions and should limit attempts to expand them on the basis of freedom of expression or freedom of the press.  

The background

Article 5(3) of the Copyright Directive (2001/29/EC) (the Copyright Directive) sets out exceptions and limitations to authors’ exclusive rights to reproduce their works, communicate their works to the public, and to prohibit their reproduction by others. These include exceptions for: 

• reporting current events for an informatory purpose, provided the source (including author’s name) is indicated (insofar as it is possible to do so) (Article 5(3)(c))
• quotations for purposes such as criticism or review, relating to a work that has already been lawfully made available to the public, where the use accords with fair practice, and provided the source (including author’s name) is indicated (insofar as it is possible to do so) (Article 5(3)(d)).

A dispute arose between Mr Beck, a member of the German parliament, and Spiegel Online (an internet news portal) concerning the publication of a 1988 manuscript, which Spiegel made available online via hyperlinks. Mr Beck brought a successful claim for copyright infringement, which Spiegel appealed. 

On appeal, the German Federal Court referred several questions to the Court of Justice of the European Union (CJEU) concerning the scope of the exceptions provided for under the Copyright Directive, particularly concerning the implementation and interpretation of Art 5(3)(c) and (d). 

The decision 

As regards the interpretation and implementation of Art 5(3)(c) and (d), the CJEU ruled as follows: 

• the Copyright Directive does not fully harmonise the exceptions and limitations to an author’s exclusive rights – Member States enjoy discretion in transposition and application of the Directive into national law

• freedom of information and freedom of the press, as enshrined in the Charter of Fundamental Rights of the EU (the Charter), do not justify derogation from an author’s exclusive rights beyond the exceptions already provided for by the Directive

• national courts must ensure that interpretation of Art 5(3)(c) and (d) fully adheres to the fundamental rights enshrined in the Charter

• Article 5(3)(c) precludes a national rule restricting the application of the exception or limitation in cases where it is not reasonably possible to make a prior request for authorisation from the author, before using a protected work to report current events. The provision does not require the right holder’s consent

• Quotations for the purpose of Article 5(3)(d) need not be inextricably integrated by way of insertions of footnotes – quotations will include hyperlinks to the quoted work, which can be downloaded independently

• In respect of Article 5(3)(d), that a work has already been “lawfully made available to the public” means that the work was previously made available with the rights holder’s authorisation or in accordance with a non-contractual licence or statutory authorisation.

Why is this important? 

The CJEU’s ruling provides clarification as regards the application and interpretation of the copyright exceptions in the context of the fundamental freedoms enshrined in the Charter and should prevent any attempt to justify expansion of the scope of the copyright exceptions on the basis of freedom of expression or freedom of the press.

Any practical tips?

The media and publishers (including online) should ensure they apply a strict interpretation of the Art 5(3) copyright exceptions, to their content, and bear in mind that the author’s rights may prevail over rights to freedom of information and/or freedom of the press.