Case C‑516/17
Spiegel Online GmbH
v
Volker Beck
(Request for a preliminary ruling from Bundesgerichtshof)
Judgment of the Court (Grand Chamber), 29 July 2019
(Reference for a preliminary ruling — Copyright and related rights — Directive 2001/29/EC — Information Society — Harmonisation of certain aspects of copyright and related rights — Article 5(3) — Exceptions and limitations — Scope — Article 5(3)(c) and (d) — Reporting of current events — Quotations — Use of hyperlinks — Lawfully making available to the public — Charter of Fundamental Rights of the European Union — Article 11 — Freedom of expression and of information)
1. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Rights reproduction and of communication to the public — Exceptions and limitations — Reporting of current events and quotations — Scope — No full harmonisation — Limits — Compliance with EU law
(European Parliament and Council Directive 2001/29, Art. 5(3)(c) and (d))
(see paragraphs 31, 36, 39, 42, operative part 1)
2. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Rights reproduction and of communication to the public — Exceptions and limitations — Scope — Freedom of expression and of information — Not included
(Charter of Fundamental Rights of the European Union, Art. 11; European Parliament and Council Directive 2001/29, Arts 2(a), 3(1) and 5(2) and (3))
(see paragraphs 41, 49, operative part 2)
3. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Rights reproduction and of communication to the public — Exceptions and limitations — Reporting of current events and quotations — National court to strike a balance — Conformity with the fundamental rights enshrined in the Charter
(European Parliament and Council Directive 2001/29, Arts 2(a), 3(1) and 5(3)(c) and (d))
(see paragraph 59, operative part 3)
4. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Rights reproduction and of communication to the public — Exceptions and limitations — Reporting of current events — National rule restricting the application of the exception on the reporting of current events if impossible to make a prior request for authorisation with a view to the use of a protected work for those purposes — Not permissible
(European Parliament and Council Directive 2001/29, Art. 5(3)(c))
(see paragraphs 71, 74, operative part 4)
5. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Rights reproduction and of communication to the public — Exceptions and limitations — Concept of citations — Reference made by means of a hyperlink to a file which can be downloaded independently — Included
(European Parliament and Council Directive 2001/29, Art. 5(3)(d))
(see paragraphs 81, 84, operative part 5)
6. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Rights reproduction and of communication to the public — Exceptions and limitations — Quotations — Work already lawfully made available to the public — Conditions
(European Parliament and Council Directive 2001/29, Art. 5(3)(d))
(see paragraph 95, operative part 6)
Résumé
In the judgment of 29 July 2019, Spiegel Online (C‑516/17), the Grand Chamber of the Court of Justice interpreted the exclusive rights of authors to reproduce and communicate to the public their works as well as the exceptions and limitations to those rights, as provided for in Directive 2001/29, in a case where a manuscript and an article published in a book were published on an internet news portal, available to the public for download by means of hyperlinks. (1)
The case in the main proceedings involved the company Spiegel Online, an internet news portal operator, and Mr Volker Beck, who was a member of the Bundestag (Federal Parliament, Germany), in respect of Spiegel Online’s publication on its website of a manuscript by Mr Beck and of an article published in a book. Mr Beck brought an action before a regional court, challenging the making available of complete texts of the manuscript and article on Spiegel Online’s website, which he considered to be an infringement of copyright. That court upheld Mr Beck’s action. After its appeal was dismissed, Spiegel Online brought an appeal on a point of law (Revision) before the referring court.
Asked whether the provisions of Directive 2001/29 which allow for derogation from authors’ exclusive rights in respect of the reporting of current events (2) and of quotations (3) leave the Member States discretion in their transposition into national law, the Court of Justice held that those provisions constitute measures of full harmonisation. However, the Member States’ discretion in the implementation of those provisions must be exercised within the limits imposed by EU law, in order to safeguard a fair balance between, on one hand, the interest of the holders of rights in the protection of their intellectual property rights (4) guaranteed by the Charter of Fundamental Rights of the European Union (‘the Charter’) and, on the other hand, the rights and interests of users of works or protected subject matter, in particular their freedom of expression and information (5) also guaranteed by the Charter, as well as the public interest.
The Court added that the freedom of expression and of information is not capable of justifying, beyond the exceptions or limitations provided for in Directive 2001/29, a derogation from the authors’ exclusive rights to reproduce and communicate their works to the public, other than those set out in that directive. (6) In that regard, the Court noted that the list of exceptions and limitations set out in that directive is exhaustive.
Furthermore, according to the Court, in striking the balance which is incumbent on a national court between the exclusive rights of authors to reproduce (7) and communicate to the public (8) their works on the one hand, and, on the other, the rights of the users of protected subject matter set out in Directive 2001/29 in respect of the reporting of current events, the latter of which derogate from the former, a national court must, having regard to all the circumstances of the case before it, rely on an interpretation of those provisions which, whilst consistent with their wording and safeguarding their effectiveness, fully adheres to the fundamental rights enshrined in the Charter.
In the first place, the Court ruled on the provision of Directive 2001/29 on reporting current events which derogates from the general rule, holding that that provision precludes a national rule restricting the application of the exception or limitation provided for in that provision in cases where it is not reasonably possible to make a prior request for authorisation with a view to the use of a protected work for the purposes of reporting current events. When a current event occurs, it is necessary, as a general rule, particularly in the information society, for the information relating to that event to be diffused rapidly, which is difficult to reconcile with a requirement for the author’s prior consent, which would be likely to make it excessively difficult for relevant information to be provided to the public in a timely fashion, and might even prevent it altogether.
In the second place, the Court ruled on the provision of Directive 2001/29 on quotations which derogates from the general rule, holding, first, that the concept of ‘quotations’, referred to in that provision, covers a reference made by means of a hyperlink to a file which can be downloaded independently. In that context, the Court set out its case-law according to which hyperlinks contribute to the sound operation of the internet, which is of particular importance to freedom of expression and of information, enshrined in the Charter, as well as to the exchange of opinions and information in that network characterised by the availability of incalculable amounts of information. Secondly, the Court held that a work has already been lawfully made available to the public where that work, in its specific form, was previously made available to the public with the rightholder’s authorisation or in accordance with a non-contractual licence or statutory authorisation. It is for the national court to decide whether a work has been lawfully made available to the public, in the light of the particular case before it and by taking into account all the circumstances of the case.