AG Szpunar advises CJEU to rule that quotation exception is not limitless and that there is no fair use in the EU

After the late 2018 Opinions in Funke Medien [here] and Pelham[here], yesterday Advocate General Maciej (AG) Szpunar - IPKat's copyright person of the year 2018 - issued his Opinion in Spiegel Online, C-516/17 [background here], the third German referral asking the Court of Justice of the European Union (CJEU) to weigh in on, among other things, the interplay between copyright and other fundamental rights.

The Opinion, which is not yet available in English, advises the CJEU to rule that, among other things:

1. The exception within Article 5(3)(d) of the InfoSoc Directive requires one to consider the purpose of the quotation at issue, and 
2. Fundamental rights like freedom of expression do not allow EU Member States to go beyond the catalogue of exceptions in Article 5 therein to envisage new exceptions or even introduce a general fair use clause.

Background

Volker Beck 

(photo by Mathias Schindler

CC-BY-SA)

As readers might remember, this referral originated in the context of litigation initiated by a German politician (Volker Beck) who, in 1988, authored a work about “sexual acts of adults with children”. The publisher apparently edited the manuscript without the author's consent and the resulting publication was, according to the author, a distortion of his views.

The original manuscript was found in an archive in 2013, and the author submitted it to several newspapers to demonstrate what he had actually written. Although he did not authorize publication of the manuscript or extracts thereof, he consented to newspapers linking to a statement he published on his own website.

The publisher also released a press report on its own portal, Spiegel Online, to support its view that the original manuscripts had not been distorted. To this end, the publisher included a link that allowed users to download both the original manuscript and the resulting publication. No link to the author’s website was provided.

The politician argued successfully at both first instance and on appeal that all this would amount to copyright infringement.

The case is currently pending before Germany's Federal Court of Justice, which has stayed the proceedings and asked the CJEU to clarify, among other things, how far the 'quotation' exception can go and what discretion EU Member States enjoy when transposing and applying relevant EU copyright directives.

The AG Opinion

AG Szpunar started by noting the relevance of freedom of expression (which has been recognized as a fundamental freedom since the 1789 Declaration of the Rights of the Citizen) and freedom of the press in a democratic society. However, the drafters of the 1789 Declaration itself were also aware of how freedom of expression could limit third-party rights and freedoms. As such, Article 4 therein provides that

 Liberty consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights. These bounds may be determined only by Law.

Freedom of EU Member States

This said, the AG tackled the question of Member States' discretion when transposing relevant exceptions within Article 5 of the InfoSoc Directive into their own laws, and noted how this is a similar issue to the one at stake inPelham.

Like in his Opinion in that case, AG Szpunar reiterated that - while EU Member States are free to determine the means for transposing relevant EU directives into their own laws - they are bound to achieve the objectives of those directives. In the case of the InfoSoc Directive, these include providing a 'high level of protection' of economic rights.

Article 5(3)(c)

The referral also includes a question concerning the exception within Article 5(3)(c) of the InfoSoc Directive, in particular whether the making available to the public of copyright works on the web portal of a press undertaking does not fall within its scope because it was possible and reasonable for the press undertaking to obtain the author’s consent before making his works available to the public (this is the approach under the German news reporting exception).

According to the AG, such a limitation of the exception would not be problematic from an EU law standpoint because it is Article 5(3)(c) itself that limits reproductions 'to the extent justified by the informatory purpose'. Accordingly [the translation from Italian is mine]

 It is my view that such limitation does not only concern the extent of the authorized reproduction and communication, but also those situations in which the exception applies, that is those in which the author of the report could not be reasonably required to request the authorization of the author of the work reproduced and communicated in the context of said reporting. As such, in my view, a limitation of the exception at issue like the one under German law, not only does not contravene the relevant provision in Directive 2001/29, but is actually in line with the nature and objective of said exception. 

According to the AG, the reason why this exception would not apply in the present case is different, and lies in the fact that the EU provision should be read in light of Article 10bis(2) of the Berne Convention. This provision states that:

It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public. 

The exception is limited to 'works seen or heard in the course of the event' subject to the reporting. This is not the case of the background proceedings, as the work reproduced is a literary work which one needs to read, rather than just view or hear.

Kat quotation

Article 5(3)(d)

This said, the key issue in this case relates to the scope of the quotation exception. The AG noted that:

The exception in principle is not limited to certain types of work only, and  The methods for including a qutotation into one's own work and identifying the quotation might differ depending on the situation. Also the provision of a link might be appropriate for the sake of making a quotation.

• 
  

The problem is not, however, how that quotation may be realized but - rather - the extent of what may be quoted. In the present case what the defendant reproduced is the entirety of the claimant's work.

Although the CJEU appears to have allowed the possibility of quoting a photographic work in its entirety (inPainer), it has also spoken of 'reproduction of extracts' (Painer, para 135). The Berne Convention originally spoke of short quotations, while the current text states that the extent of a quotation must not exceed what is justified by the purpose. A similar formulation can be found in Article 5(3)(d). It follows that a quotation may be also of a work in its entirety, insofar as the aim pursued justifies it.

In any event, a quotation must not compete with the original work. Holding otherwise would allow one to elude the economic rights of an author over their work, rendering them devoid of any content thereof:

 the quotation exception may not be applied in situations in which, lacking the authorization of the author, a work is made available to the public on the internet, in its entirety, in the form of an accessible and autonomously downloadable file.

In addition, allowing a quotation that was a substitute for the original would also be contrary to the three-step test in Article 5(5) of the InfoSoc Directive and Article 9(2) of the Berne Convention, notably the requirement that an exception does not conflict - whether actually or even just potentially - with a normal exploitation of the work. 

Fundamental rights: no fair use in Europe

Having excluded that the exceptions within Article5(3)(c) and (d) would apply, the AG considered whether the use made by the defendant of the claimant's work might be nonetheless justified in light of Article 11 of the Charter of Fundamental Rights of the EU (freedom of expression/information and freedom of the press). This is also a question at issue in Funke Medien and Pelham.

In line with his Opinions in those cases, the AG proposed to rule that normally it is necessary to respect the choices made by legislature, considering that copyright already contains limitation and exceptions aimed at reconciling the exclusive rights of authors with third-party freedoms and rights, including freedom of expression/information.

Holding that it might be possible to supplement the exceptions and limitations provided for in Article 5 of the InfoSoc Directive with further exceptions and limitations would also run contrary to the harmonization objectives of the EU. Above all:

 such possiblity would be tantatmount to introducing into EU law some sort of "fair use clause", in that basically any use of a work that infringes copyright could rely, in one way or another, on freedom of expression. This way, the protection actually available to the rights of authors would depend on the sensitivity of the judges in each Member State towards freedom of expression, thus transforming any harmonization effort into an unattainable goal.

Comment

The Opinion of AG Szpunar might appear restrictive to some - especially with regard to the scope of quotation and the take on fair use - but it is not at all surprising, also considering earlier CJEU case law and the wording of the InfoSoc Directive.

That quotation is not borderless appears correct, considering the wording of the Berne Convention and the InfoSoc Directive, as well as the three-step test. This said, consideration of the circumstances at issue is key: the AG was correct in reiterating that a quotation might be also of a work as a whole, but whether that might be the case depends on the purpose of said quotation. 

Finally, the fundamental rights assessment also appears correct and - even if the Opinion does not mention it, it is in line with the case of law of the European Court of Human Rights which has tackled the interplay between copyright and freedom of expression, eg Ashby Donald [here], The Pirate Bay [here] (see also here). 

Let's now see what the CJEU rules. One will have an idea of the fate of Funke Medien, Pelham and Spiegel Online as soon as the first of these three decisions is out.

By Eleonora Rosati writing on the IPKat 

The CJEU decision in Soulier: what does it mean for laws other than the French one on out-of-print books?

As reported by the IPKat through a breaking news post, yesterday the Court of Justice of the European Union (CJEU) issued its decision in Soulier and Doke, C-301/15. This is a further updated posted by Eleonora Rosati on the IPKat on the same case, and one we though we shoukd share in the 1709 Blog.

This was a reference for a preliminary ruling from the French Conseil d’État (Council of State) and concerned the compatibility with EU law [read: the InfoSoc Directive] of the 2012 French law to allow and regulate the digital exploitation of out-of-print 20th century books.

The late Marc Soulier, also known as Ayerdhal

As explained more at length here, by introducing into the French Code de la propriété intellectuelle (CPI) a new chapter [Chapter IV - Articles L 134-1 to L 134-9, subsequently amended] to Title III of Book I, this piece of legislation has vested approved collecting societies with the right to authorise the reproduction and the representation in digital form of out-of-print books, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice subject to certain conditions. 

More specifically, the relevant implementing decree has established a legal framework intended to encourage the digital exploitation of works reproduced in books published in France before 1 January 2001 which are no longer commercially distributed by a publisher and are not published in print or digital format. In that case the right to authorise the reproduction or performance of those books in digital format is exercised, six months after their registration in a publicly accessible database for which the National Library of France is responsible, by collecting societies approved to do so by the Ministry of Culture.

In yesterday's post, I expressed the view that this new CJEU decision might have far-reaching implications, that go well beyond the sole piece of legislation at the centre of the case.

After reading the decision, this seems indeed to be the case.

What the CJEU said

Preliminary remarks

In its 53-paragraph decision, also clarifying that the case had nothing to do with copyright exceptions [so that, in line with the Opinion, here, of Advocate General (AG) Wathelet, Article 5 of the InfoSoc Directive would be irrelevant], the Court noted that the national legislation at issue would call into consideration: (1) the right of reproduction within the meaning of Article 2(a) of the InfoSoc Directive; and (2) the right to authorise the representation under that form and that such a representation constitutes a communication to the public within the meaning of Article 3(1) of that directive.

The actual question referred by the French court should be therefore read as asking whether Article 2(a) and Article 3(1) of the InfoSoc Directive preclude national legislation that gives an approved collecting society the right to authorise the reproduction and communication to the public, in digital form, of out-of-print books, while allowing the authors of those books or their successors in title to oppose or put an end to that practice on the conditions that that legislation lays down.

The other author
at the centre of the case:
Sara Doke

Broad and preventive rights

The Court noted at the outset that the protection conferred by Articles 2(a) and 3(1) of the InfoSoc Directive must be given a broad interpretation. It follows [para 31] that, in line with the Berne Convention, “that protection must be understood, in particular, as not being limited to the enjoyment of the rights guaranteed by Article 2(a) and Article 3(1) of Directive 2001/29, but as also extending to the exercise of those rights.”

The Court then recalled that [para 33] such exclusive rights are preventive in nature, in the sense that any reproduction or communication to the public of a work by a third party requires the prior consent of its author.

The most straightforward consequence of this is that [para 34], subject to the exceptions and limitations laid down exhaustively in Article 5, any use of a work carried out by a third party without such prior consent (of the author) must be regarded as infringing copyright in that work. 

The form and substance of consent

This said, the Court conceded [para 35] that neither Article 2(a) nor Article 3(1) specify the way in which the prior consent of the author must be expressed: those provisions do not require such consent to be necessarily expressed explicitly. Hence, those provisions also allow that consent to be expressed implicitly. An example - said the Court - is what happens in the case of communication to the public in an online environment with the (psychological) notion of ‘new public’ [para 36], as adopted in Svensson.

However, [paras 37-40]

“[T]he objective of increased protection of authors to which recital 9 of Directive 2001/29 refers implies that the circumstances in which implicit consent can be admitted must be strictly defined in order not to deprive of effect the very principle of the author’s prior consent.

In particular, every author must actually be informed of the future use of his work by a third party and the means at his disposal to prohibit it if he so wishes.

Failing any actual prior information relating to that future use, the author is unable to adopt a position on it and, therefore, to prohibit it, if necessary, so that the very existence of his implicit consent appears purely hypothetical in that regard.

Consequently, without guarantees ensuring that authors are actually informed as to the envisaged use of their works and the means at their disposal to prohibit it, it is de facto impossible for them to adopt any position whatsoever as to such use.”

Having said so, the Court turned to consideration of the French law, and noted how that legislation does not appear to offer a mechanism ensuring that authors are actually and individually informed. Therefore, it is not inconceivable that some of the authors concerned are not, in reality, even aware of the envisaged use of their works and, therefore, that they are not able to adopt a position, one way or the other, on it. In those circumstances, a mere lack of opposition on their part cannot be regarded as the expression of their implicit consent to that use.

Writer's block for Merpel

But initiatives on out-of-commerce works are not completely out

In all this, the Court did not place an absolute ban on future legislative interventions based on the InfoSoc Directive [and it would seem also on other pieces of legislation, eg the recent proposal of the EU Commission for a Directive on copyright in the Digital Single Market, here]. In fact [para 45]:

“Admittedly, Directive 2001/29 does not preclude national legislation, such as that at issue in the main proceedings, from pursuing an objective such as the digital exploitation of out-of-print books in the cultural interest of consumers and of society as a whole. However, the pursuit of that objective and of that interest cannot justify a derogation not provided for by the EU legislature to the protection that authors are ensured by that directive.”

Removing consent

The Court also added that the InfoSoc Directive does not prohibit Member States from granting certain rights or certain benefits to third parties, such as publishers, as long as those rights and benefits do not harm the rights which that directive gives exclusively to authors. 

When the author of a work decides to put an end to the future exploitation of that work in a digital format, that right must be capable of being exercised:

a)  without having to depend, in certain cases, on the concurrent will of persons other than those to whom that author had given prior authorisation to proceed with such a digital exploitation and, thus, on the agreement of the publisher holding only the rights of exploitation of that work in a printed format [para 49]; and

b)  without being subject to any particular formality [para 50].

In conclusion

Article 2(a) and Article 3(1) of the InfoSoc Directive must be interpreted as precluding national legislation that gives an approved collecting society the right to authorise the reproduction and communication to the public in digital form of ‘out-of-print’ books, namely, books published in France before 1 January 2001 which are no longer commercially distributed by a publisher and are not currently published in print or in digital form, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that that legislation lays down.

Comment

Yesterday’s decision marked an important moment in CJEU copyright jurisprudence. 

Any freedom left?

From an EU perspective

Although the Court relied on concepts also employed in previous decisions [eg that economic rights must be interpreted broadly and considered preventive in nature], it used the so called author principle [ie the principle that, as a general rule, the author is also the first owner of copyright] to push the boundaries of EU harmonisation further and, by doing so, restrict Member States' legislative freedom.

First, despite contrasting hints in the past in which the CJEU appeared to employ the terms 'authors' and 'rightholders' interchangeably, the Court reinforced the idea that who the InfoSoc Directive intends to grant a 'high level of protection' to is authors.

Secondly, although not referring explicitly to the notion of EU preemption [on which see also here], the CJEU fully embraced it. In this sense, there is no gap between the CJEU judgment and the AG Opinion [paras 55-57], which rejects the view that the national legislation at issue would not affect the protection of copyright because it simply constitutes an arrangement for managing certain rights which the InfoSoc Directive does not preclude. What matters - for both the CJEU and the AG - is whether authors have had the possibility to express their individual consent. 

From a practical perspective

It would appear that, post-Soulier and lacking specific 'EU-endorsed authorisation' to the contrary, national legislative initiatives (including licensing schemes) that fail to incorporate appropriate and streamlined procedures to (1) inform authors of possible future uses of their works, and (2) obtain their relevant, individual, consent are likely to be regarded as incompatible with EU law.

In light of all this one may wonder whether another piece of French legislation, ie the law on freedom of creation, architecture and cultural heritage, is against EU law. 

As this blog reported, among other things this introduced new provisions [Articles L 136-1 to 136-4] into the CPI to regulate the exercise of the exclusive rights of reproduction and representation vis-à-vis automated image referencing services. Article 136-2(1) CPI clarifies that the publication of a plastic artwork, graphic or photographic work by an online communication service is subject to the consent - not of authors - but rather one or more collecting societies appointed to this end by the French Ministry of Culture. It would appear that an author only has the right to indicate which collecting society would undertake this task (lacking such indication, then a presumption would operate in favour of a designated collecting society), but not also authorise the relevant collecting society to authorise the making of acts restricted by copyright.

On a similar note, as suggested by Sylvie Nérisson on the Kluwer Copyright Blog at the time of the AG Opinon, also certain national licensing schemes - including systems of extended collective licensing - may fall short of what EU law requires in terms of authors' consent.  

All in all ... a subtle message from the CJEU

Turning now to the provisions on out-of-commerce works as contained in the recently proposed Directive on copyright in the Digital Single Market, Article 7(1) states that:

"Member States shall provide that when a collective management organisation, on behalf of its members, concludes a non-exclusive licence for non-commercial purposes with a cultural heritage institution for the digitisation, distribution, communication to the public or making available of out-of-commerce works or other subject-matter permanently in the collection of the institution, such a non-exclusive licence may be extended or presumed to apply to rightholders of the same category as those covered by the licence who are not represented by the collective management organisation, provided that: 

(a) the collective management organisation is, on the basis of mandates from rightholders, broadly representative of rightholders in the category of works or other subject-matter and of the rights which are the subject of the licence; 

(b) equal treatment is guaranteed to all rightholders in relation to the terms of the licence; 

(c) all rightholders may at any time object to their works or other subject-matter being deemed to be out of commerce and exclude the application of the licence to their works or other subject-matter."

One may question whether the extension of the licence also to non-members and the fact that the mechanism envisaged by the proposed directive is opting-out rather than opting-in, is fully compliant with Soulier.

A conclusion of the conclusion

In all this, yesterday's CJEU decision does not necessarily mean the end for all these sorts of initiatives - whether at the national or EU levels. 

However, what is (now?) required is a more careful approach by relevant legislators to ensure that the principles established at the level of the InfoSoc Directive and elaborated further in yesterday's CJEU decision are fully respected. 

As a final note - although the CJEU did not bring fundamental rights into the picture this time - as I also discussed here, these may matter in a situation in which authors are deprived of their ability to authorise the making of acts restricted by copyright. In fact, it may be argued that all this could amount to a deprivation of authors' fundamental right to intellectual property protection, as per Article 17(2) of the Charter of Fundamental Rights of the European Union. 

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Posted By Eleonora Rosati to The IPKat on 11/17/2016 09:35:00 am

Linking after GS Media ... in a table

Readers may remember that a few months ago I published a table that I had prepared for my students at the University of Southampton, attempting to summarise the position of the Court of Justice of the European Union as regards linking to protected content.

Further to this week's GS Media decision [here and here], here's an updated version of my 'linking table' [check out also this useful tool prepared and shared by Martin Husovec the same day of the GS Media decision]:

The table was originally published on The IPKat on 10 September 2016.

One Year on, the Private Copying Exception is now Dead

Following the CJEU's decision in the Reprobel case (reported here and here), it is perhaps not surprising that the UK Intellectual Property Office has announced that it is to abandon the UK's private-copying exception which was introduced in October 2014, and which was effectively declared illegal by the High Court in July of this year, and so had to be withdrawn. 

For the background to Mr Justice Green's decision in July's Judicial Review, please see this blog post. It now seems clear that the IPO were never going to find a workable scheme which met the criterion of 'fair compensation' for rights holders demanded by the EU InfoSoc Directive, while at the same time avoiding unpopular levies on consumables and hardware capable of being used to copy, in particular, music, computer games, ebooks and films, for personal use.

The Reprobel decision, although not specifically concerned with copying for private use, highlights just how complicated the levy system can become. Each EU member state has found its own way of tackling the issue, with no overall EU-wide harmonisation in prospect. It seems that the IPO and those representing rights owners could not find an existing model to achieve 'fair compensation'.

So where does this leave ordinary users in the UK? Clearly some will have been unaware of the introduction of the exception last year, and possibly a larger minority will have been unaware of the rescinding of the exception, so they will no doubt continue to format shift their personally owned music and store tracks on the cloud in blissful ignorance that that is not legal in most cases. Then there is the grey area of the legality of copies made while the exception was in force. Those users who are aware of the changes face a difficult decision: whether to make copies for personal use in contravention of the law in the reasonably sure knowledge that they won't get caught, or abide by the law and deny themselves a degree of sensible flexibility in their viewing and listening choices. One thing they will not do is go out and buy a digital replacement such as a download, for a CD or DVD they already own.

The decision not go ahead with the private copying exception will also have implications for other parts of the music distribution industry. Operators of cloud services may face pressure to amend their terms of service to reflect the new status quo, and some streaming services may be forced to tighten up their procedures to prevent users from creating multiple copies of the same download. But what also seems clear is that the music industry has won a Pyrrhic victory since whether or not it is illegal, many users will continue to make private copies of their legally owned music etc, just as they used to do in the pre-digital age. No doubt the BPI and its members will complain that they will lose revenue through this behaviour but I think it is fair to say that they will, privately, continue with their old policy of not seeking to sue or prosecute anyone for personal format shifting. To do otherwise would undoubtedly alienate the buying public and strengthen the argument that the record labels are out of touch with what music fans want. It remains to be seen how organisations such as the Featured Artists Coalition and the collecting societies will react to this latest development. Arguably it was the artists who stood to gain from the imposition of a levy on consumables etc, but even they would no doubt acknowledge that a blanket system is neither fair to consumers, in that much copying is of non-copyright material, nor does it result in a fair distribution of the proceeds to the artists and authors of the works, since there is no way to monitor which actual works have been copied.