Copyright does not prevent publication of military reports: AG opinion
EU member states should not be able to rely on copyright protection to prevent publication of confidential military reports, according to an advocate general (AG) of the Court of Justice of the European Union (CJEU).
AG Maciej Szpunar delivered his opinion on Thursday, October 25.
The German government generates a weekly military status report centring on the foreign developments of its army. The reports, which are categorised as ‘classified documents—restricted’, are sent to certain members of the Bundestag (German parliament) and other relevant bodies.
The government also publishes versions of the reports as public briefings.
In 2012, German news group Funke Medien sought to obtain all of the classified reports compiled over the previous 11 years.
The government denied the request, as it claimed that the disclosure of certain briefings could have adverse effects on the interests of the armed forces.
However, having obtained copies of a large portion of the briefings through an unknown means, Funke Medien published several of them.
The government claimed that Funke Medien had infringed its copyright in the reports, and a Landgericht (a Regional Court in Germany) granted an injunction.
On appeal, the Bundesgerichtshof (Federal Court of Justice) referred the matter to the CJEU.
Szpunar noted two core issues in the referral: whether the reports are works eligible for copyright protection, and whether fundamental rights (such as freedom of expression) can overrule such protection.
He explained that the CJEU does not know the “exact content” of the published documents as Funke Medien had to withdraw them from its website, but it can be assumed that they are “more detailed” versions of the corresponding public briefings.
As such, Szpunar suggested that they are “purely informative documents, drafted in absolutely neutral and standardised terms”.
Purely informative documents that are entirely determined by the information they contain lack originality, Szpunar explained.
He said: “It seems to me to be rather unlikely 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 able to make free and creative choices in order to express their creative abilities when drafting those documents.”
Szpunar found that Germany is seeking to rely on copyright protection to “pursue objectives that are entirely unrelated to it”, such as the protection of confidential information, without first establishing that the briefings constitute works for the purpose of copyright.
“Such a practice cannot be accepted,” he concluded.
Szpunar advised the CJEU to rule that the questions referred to it are inadmissible, as a factual assessment on the works has not been carried out.
If the CJEU does not accept this, then it should find that a member state cannot rely on copyright to curtail freedom of expression in matters relating to the publication of confidential documents in the context of a debate concerning matters of public interest, he said.
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