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CJEU delves into the world of German military reports and questions of copyright

Heidi Hurdle


United Kingdom

This blog looks at the CJEU's ruling in Funke Medien, one of the trilogy of significant copyright judgments published on the same day. Here the court delves into the world of German military reports, as well as the interplay between copyright and fundamental rights.

This blog looks at the CJEU's ruling in Funke Medien (C-469/17),  one of the trilogy of significant copyright judgments published on the same day. Here the court delves into the world of German military reports, as well as the interplay between copyright and fundamental rights.

The other two decisions in the trilogy were Pelham (C-476/17) and Spiegel Online (C-516/17). See our blog CJEU stays in tune with phonogram producers - sampling without permission can infringe a phonogram producer's rights, subject to certain conditions on the Pelham ruling.


As Advocate General (AG) Szpunar remarked (right at the beginning of his opinion back in October 2018) ‘All quiet on the Western Front’, is probably the most well-known military report in the history of literature. This phrase, featured in the novel by Erich Maria Remarque enjoyed copyright protection, as did the book as a whole.

This case also involved military reports, but real ones rather than fictional, and complex questions going to the heart of copyright and fundamental rights, as we discuss below...


The dispute was between the Federal Republic of Germany and Funke Medien NRW GmbH (Funke), the operator of a daily online newspaper, regarding Funke's unauthorised publication of several weekly military status reports. The Federal Public argued that Funke had infringed its copyright in the reports and sought an injunction.

The lower courts granted the injunction but when the case came before the Bundesgerichtshof (Federal Court of Justice) it decided to stay the proceedings and seek the CJEU's help. It put three questions to the CJEU, which raised key issues concerning the relationship between copyright and fundamental rights under the Charter of Fundamental Rights (the Charter).

The questions concerned how the fundamental rights under the Charter should be taken into account in determining the scope of the exceptions in Articles 5(2) and 5(3) of the InfoSoc Directive (2001/29/EC) to authors' exclusive rights to reproduce and communicate their works (under Articles 2(a) and 3(1) of that directive), and whether the right to freedom of information and freedom of the press in Article 11 of the Charter could justify exceptions or limitations beyond those provided for in Article 5.

CJEU ruling

Initial thoughts

Before getting into the nitty gritty of the referred questions the CJEU said it was for the national court (here Germany) to determine whether the military status reports qualified as "works" eligible for copyright protection. Did they constitute purely informative documents with their content entirely determined by the information they contained, or, was their originality reflected in the choice, sequence and combination of words used by the author? When the AG discussed this question, he seemed to doubt whether a military report could ever be protected as a copyright work, and suggested that it might be more appropriate to rely on the confidentiality in the documents.

The CJEU concluded that military status reports could be protected by copyright only if those reports were an intellectual creation of their author which reflect the author’s personality and are expressed by free and creative choices made by that author in drafting those reports. This was a decision for the national court in each case. In discussing this the court relied in particular on its recent ruling in the Levola Hengelo case (C-310/1&) concerning cheese (see our blog Taste of food is not a copyright "work" - a decision that may grate on the cheese industry).

First question

By the first question the CJEU was effectively asked for guidance on the harmonisation of copyright by the InfoSoc Directive (2001/29/EC). The court confirmed that the objective of the directive was to harmonise only certain aspects of the law on copyright and that member states had a certain degree of discretion in the implementation of a number of provisions.

The CJEU explained that Article 2(a) and Article 3(1) constituted measures of full harmonisation - they defined a copyright holder’s exclusive rights in the EU of reproduction and making available to the public in unequivocal term. By contrast, with the exception or limitations in Article 5(3)(c) and (d) of the Directive (reporting of current events and quotations for criticism or review), member states had significant discretion allowing them to strike a balance between the relevant interests.

Second question

When it came to answering the next two questions the CJEU swopped the order around from that of the original reference (just to keep people on their toes!). Here the court had to grapple with the relationship between copyright and fundamental rights.

The CJEU explained that the EU harmonisation of copyright effected by the Info Soc Directive aimed to safeguard (particularly in the electronic environment) a fair balance between the interests of right-holders in the protection of their IP rights (guaranteed by Article 17(2) of the Charter), and the protection of the interests and fundamental rights of users of protected subject matter, particularly their freedom of expression and information (guaranteed by Article 11 of the Charter), as well as of the public interest. The mechanisms allowing for such a balance to be struck in an individual case were contained in that directive itself as it provided not only right-holders with exclusive rights, but also provided for exceptions and limitations to those rights.

The court went on to conclude that freedom of information and freedom of the press, enshrined in Article 11 of the Charter did not justify, beyond the exceptions or limitations set out in Article 5(2) and (3) of the InfoSoc Directive, a derogation from the author’s exclusive rights of reproduction and of communication to the public (in Article 2(a) and Article 3(1) of that directive).

Third question

The CJEU's answer to the third question flowed on from the second question and looked at how a national court should balance the rights of an author and those of a user.

The court concluded that in balancing the rights of the author and the rights of users of subject matter referred to in Article 5(3)(c) (reporting current events) and (d) (quotation), a national court must rely on an interpretation of those provisions, which while consistent with their wording and safeguarding their effectiveness, fully adhered to the fundamental rights enshrined in the Charter.


It is interesting that the CJEU decided to provide detailed answers to the questions referred to it when the Advocate General had suggested that the court should find the questions inadmissible as they were hypothetical, being base on a premise (whether the military reports constituted works eligible for copyright protection), that the German court had not confirmed. The AG thought that as the CJEU would have the opportunity to answer similar questions going to the heart of copyright and fundamental rights in Pelham and Spiegel Online which were more typical situations involving the application of copyright, it would not be necessary to do so in this case. The CJEU obviously decided that it would nevertheless be helpful to analyse and answer those questions here, perhaps as it wanted to deal with the issues now together with the other two referrals and publish consistent rulings.

In its analysis of the third question, the CJEU made some noteworthy observations about the military reports in this case and seems to suggest that if there were protected by copyright, then it was possible that Funke Medien's use of them would be covered by the exception for reporting current events in the InfoSoc Directive.

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