August 5, 2019

The claimant, Volker Beck, a former member of the Bundestag (the German Parliament), wrote a manuscript on criminal policy relating to sexual offences committed against minors, which was published under a pseudonym as an article in a book published in 1988. At the time of publication, the publisher changed the title of the manuscript and shortened one of its sentences. Mr Beck objected and asked the publisher, to no avail, to make the changes clear. Over the following years, Mr Beck, who was criticised for the article, repeatedly contended that the meaning of his manuscript had been altered by the publisher. From at least 1993, Mr Beck distanced himself from the article.

In 2013, Mr Beck’s manuscript was discovered in documentary archives. He was questioned on it when he stood for election to the Bundestag. Mr Beck provided various newspaper editors with his original manuscript to prove that it had been altered in the article, but he did not consent to either being published. He did, however, publish both documents on his own website, stating that he distanced himself from them.

The defendant, Spiegel Online GmbH, which operates an online news portal, published an article in which it contended that, contrary to Mr Beck’s claim, the central statement in his manuscript had not been altered. Spiegel provided hyperlinks to both the original manuscript and the article.

Mr Beck issued proceedings for copyright infringement in the German courts. The claim was upheld and Spiegel’s appeal failed. Spiegel therefore appealed to the German Federal Court of Justice, which referred six questions to the CJEU. In short, it queried the scope of the exceptions under the Copyright Directive (2001/29/EC) on the reporting of current events (Article 5(3)(c)) and the use of quotations for criticism or review (Article 5(3)(d)).

The CJEU found that:

• the Directive does not fully harmonise the exceptions and limitations to a copyright holder’s exclusive right to reproduce his or her work and to communicate it to the public. Member States therefore enjoy a significant amount of discretion, albeit highly circumscribed, in its transposition and application;
• freedom of information and freedom of the press, under the Charter of Fundamental Rights of the European Union, are not capable of justifying, beyond the exceptions or limitations under the Directive, any derogation from the author’s exclusive rights of reproduction and of communication to the public;
• as for the balance between the exclusive rights of the author and freedom of expression, the protection of IP rights is not absolute and, where appropriate, particularly in political discourse and matters of public interest, the fact that the nature of the information concerned is of particular importance, must be taken into account;
• as for using protected works for the purpose of reporting current events (“to the extent justified by the informatory purpose and as long as the source, including the author’s name, is indicated, unless this turns out to be impossible”, as stated in Article 5(3)(c)), Member States cannot make the exception or limitation subject to the author’s prior consent;
• it was for the German courts to ascertain whether publication of the original manuscript and the article, without stating that Mr Beck distanced himself from the content of those documents, was necessary to achieve the “informatory” purpose;
• as for the quotation exception under Article 5(3)(d), the quoted work does not need to be inextricably integrated, by way of insertions or footnotes, into the subject matter citing it. On the contrary, quotations can also be inserted by including a hyperlink to the quoted work;
• nevertheless, the use in question must be made in accordance with fair practice, and to the extent required by the specific purpose. Accordingly, Spiegel’s use of the manuscript and article by way of quotation must not be extended beyond the confines of what is necessary to achieve its “informatory” purpose;
• the quotation exception only applies if the quotation relates to a work that has already lawfully been made available to the public. This includes where the rights holder has previously authorised the specific work to be made available or where it has been made available in accordance with a non-contractual licence or statutory authorisation;
• it was for the German courts to ascertain whether, at the time of the initial publication of the manuscript as an article in a book, the publisher had the right, whether contractually or otherwise, to make editorial amendments. If not, the court would have to find that publication had not been consented to and that it had not been lawfully made available to the public; and
• when Mr Beck published the manuscript and article on his own website, he had lawfully made those documents available to the public insofar as his statements distancing himself from them were also included.

(Case C-516/17 Volker Becker v Spiegel Online GmbH EU:C:2019:625 (29 July 2019) — to access the judgment in full, go to the curia search form, type in the case number and follow the link).