29 July 2019CopyrightSaman Javed

Copyright protection of military reports is national issue, CJEU says

Europe’s highest court has delivered an opinion in a copyright dispute concerning confidential German military reports that were published by a newspaper.

In a  judgment, published today, July 29, the Court of Justice of the European Union ( CJEU) said national courts must first ascertain whether the military status reports are protected by copyright.

The dispute dates to 2012, when German publisher  Funke Medien, which owns daily newspaper Westdeutsche Allgemeine Zeitung filed for access to all military status reports drawn up over the previous 11 years.

Every week, the Federal Republic of Germany draws up a military status report on the foreign deployment of its armed forces.

The reports are sent to selected members of the country’s government, to the Federal Ministry of Defence and other federal ministries.

These reports are categorised as “classified documents-restricted”, the lowest level of confidentiality.

The court said the Federal Republic publishes summary versions of the report which are made available to the public.

Funke Medien’s application was refused on the grounds that disclosure of the full reports could have adverse effects on security-sensitive interests of the country’s armed forces.

Despite this, Funke Medien obtained, by unknown means, a large proportion of the reports and published several of them as the “Afghanistan papers”.

The Federal Republic then sued the publisher, arguing that it had infringed its copyright over the reports.

Germany’s Federal Court of Justice then asked the CJEU for an interpretation of EU copyright law in regard to the fundamental right of freedom of expression.

In its opinion, the CJEU said that under EU law, the reports may only be granted copyright protected if they are an intellectual creation of their author, that they reflect the author’s personality, and that the author made free and creative voices when drafting the reports.

It said that if it was found that these works are protected by copyright, a freedom of information and freedom of the press defence would not justify the reproduction and publication of the reports to the public.

Additionally, the opinion said that in order to strike a balance between copyright and the right to freedom of expression, courts need to take into account the nature of the information at issue, and whether it is of particular importance in political discourse and matters concerning the public.

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