On 25 October 2017, the Advocate General (AG) Mr. Szpunar delivered his opinion in the Case C-469/17 Funke Medien NRW GmbH v Federal Republic of Germany. The dispute was raised by unauthorized publication by the German newspaper WAZ of the so called 'Afghanistan Papers', which are confidential military briefings on the operations of German armed forces.
The Federal Republic of Germany decided to bring civil legal actions against the newspaper on the grounds of copyright infringement. It is true that they could have brought a criminal action however according to the German government the threat to national security arising from the disclosure was not such as to justify interfering with the right to freedom of expression and freedom of the media article 11(1) and 11(2 )of the Charter of Fundamental Rights of the European Union)
The German Federal Court of Justice stayed the proceedings, and asked the CJEU to clarify several questions, we will focus on two of them. The Court asked if a military report can be protectable under copyright law, and the interference between copyright and freedom of expression.
Regarding the protection under copyright, the AG doubted that military reports can be subject of copyright protection. They were purely informative, drafted in neutral and standardised terms and reported on military events or stated simply that no events of interest had occurred. Such “raw” information, according to the e AG was excluded from copyright protection, which protects only the expression of ideas and not the ideas (including raw information) themselves.
Regarding the originality requirement, the AG said: that the author or authors of those documents, whose identity is unknown but who are probably civil servants or officers of the federal armed forces, were not able to make free and creative choices in order to express their creative abilities when drafting those documents. The content of purely informative documents that are inevitably drafted in simple and neutral terms is entirely determined by the information they contain, so that such information and its expression become indissociable, thus precluding all originality. A degree of effort and skill is required to draw them up, but those elements on their own cannot justify copyright protection.
In relation to the interface between fundamental rights and copyright, the AG stated that copyright has two main objectives. The first is to protect the personal relationship between the author and his work as his intellectual creation (moral rights). The second objective is to enable authors to exploit their works economically and thus earn an income from their creative endeavours (property rights). In order for a restriction on freedom of expression flowing from copyright to be characterised as necessary, it must meet those two objectives. However, military reports such as those at issue in the main proceedings meets neither.
Moreover, it has been established that the sole objective of the action taken by the Federal Republic of Germany in the main proceedings was to protect the confidential nature not of the documents at issue. That falls completely outside the scope of copyright. Copyright is therefore used here to pursue objectives that are entirely unrelated to it. Thus, having considered that the interest in protecting the documents at issue as confidential information did not justify the resulting restriction on freedom of expression, the Federal Republic of Germany decided to achieve the same result by invoking its copyright over those documents, despite the fact that copyright pursues completely different aims and it is not even established that those documents are works for the purpose of copyright.
Finally AG concluded that Article 11 of the Charter precludes a Member State from invoking copyright under Articles 2(a) and 3(1) of Directive 2001/29 on copyright in the information society in order to prevent the communication to the public, in the context of a debate concerning matters of public interest, of confidential documents emanating from that Member State. That interpretation did not, however, prevent the Member State from applying other provisions of its domestic law, including those relating to the protection of confidential information.