October 29, 2018

Every week in Germany a military status report on the overseas deployments of the armed forces is drawn up. The reports are categorised as Parliament briefings and are sent to selected members of the German Parliament, various Government ministries, including the Ministry of Defence and certain of its departments. Parliament briefings are categorised as “Classified Documents — Restricted”, the lowest level of confidentiality. The German Government publishes summary versions of Parliament briefings, known as public briefings.

The claimant, Funke Medien NRW GmbH, operated the website of the daily newspaper Westdeutsche Allgemeine Zeitung. In September 2012, it applied for access to all Parliament briefings drawn up over the previous eleven years. That application was refused on the ground that disclosure could adversely affect the security-sensitive interests of the armed forces. Funke Medien nevertheless obtained a large proportion of documents and published several of them, naming them the “Afghanistan Papers”.

The German Government did not prosecute Funke Medien for disclosure of confidential information, as it decided that the threat to national security arising from their disclosure was not such as to justify interfering with the right to freedom of expression and freedom of the media (Article 11 of the Charter of Fundamental Rights).

However, the Government issued civil proceedings against the newspaper alleging copyright infringement, and the German court referred two questions to the Court of Justice of the European Union on copyright and the fundamental right of freedom of expression.

The AG doubted that the military reports attracted copyright protection, as 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, the AG said, i.e. basic, unaltered information, was excluded from copyright protection, which protects only the expression of ideas and not the ideas (including raw information) themselves.

The AG doubted that the reports could be “works” for the purpose of copyright, since they would have to be “original in the sense that it is its author’s own intellectual creation” (Case C-5/08 Infopaq International EU:C:2009:465). The AG said that “Intellectual creation” required the author to express his creative abilities in the production of the work by making free and creative choices. Where the expression of the components of the text was dictated by their technical function, the criterion of originality was not met, since the method of expressing an idea was so limited that the idea and the expression became indissociable.

Ultimately, the AG said, it was for the national courts to assess whether the case concerned “works” under copyright law. As the German court had not yet undertaken that assessment, the AG said that the questions submitted to the CJEU were inadmissible on the ground that they were hypothetical in character.

If that were wrong, the AG said, and the documents did in fact attract copyright protection, he considered whether a Member State relying on that copyright would be infringing the right to freedom of expression.

The AG pointed out that protecting confidential information for the purposes of national security was a legitimate ground for restricting freedom of expression. However, these proceedings did not concern the protection of confidential information, but the protection of copyright.

The right to intellectual property was, the AG said, a fundamental right, just as the right to freedom of expression was a fundamental right. However, a Member State could not rely on one fundamental right as a means of restricting another such right. Further, he said, it was not necessary to protect military reports using copyright.

The sole objective of the German Government was to protect the confidential nature of certain sensitive information in the military reports. That did not form part of the objectives of copyright law. The German Government was essentially using copyright law to pursue objectives that were entirely unrelated to it.

In conclusion, the AG said that Article 11 of the Charter precludes a Member State from invoking copyright under Articles 2(a) and 3(1) of the Copyright Directive 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. (Case C-469/17 Funke Medien NRW GmbH v Federal Republic of Germany (Opinion of Advocate General) (25 October 2018) — to access the Opinion in full, go to the curia search form, type in the case number and follow the link).