A simple military report is not eligible for protection under copyright, Advocate General Maciej Szpunar said in conclusions returned on Thursday 25 October (case C-469/17).
Every week, the German authorities draft a military situation report on the actions of the Bundeswehr abroad. These reports, known as 'Unterrichtung des Parlaments' (UdP), are categorised at the lowest level of confidentiality and are sent to certain members of the Bundestag and units of the Federal Ministry of Defence.
The German company Funke Medien published some of these reports covering the last 11 years on the website of the German daily newspaper Westdeutsche Allgemeine Zeitung.
The German state did not take criminal action for disclosure of confidential information, but brought civil proceedings, arguing that Funke Medien had breached its copyright of these reports.
The Court of Justice, to which the German Federal Court of Justice referred the case, was asked to interpret the directive (2001/29) governing copyright protection in light of the right to the freedom of expression enshrined by the Charter Fundamental Rights of the EU.
In his conclusions, Szpunar expresses doubt that the UdP reports constitute works that can be protected under copyright.
These documents are purely for information, drafted in entirely neutral and standardised language and report on events that have actually occurred, the Advocate General notes, arguing that raw information of this kind is not covered by copyright.
At the end of the day, it is for the national court to assess whether these reports constitute a work within the meaning of the directive.
As for whether a State may rely on its copyright of documents of this kind to limit the freedom of expression, Szpunar responds in the negative.
He considers that the protection of certain information for the purposes of upholding national security is certainly a legitimate reason to restrict the freedom of expression, but in this case, copyright has been used to pursue unrelated objectives.
Although certain types of information must remain secret in order to avoid threatening the essential interests of a State, as long as they are classified and applied under judicial control, the media must also be able to carry out checks and balances on the political authorities by disclosing certain documents or information the content or even the existence of which the same political authorities may wish to hide. (Original version in French by Mathieu Bion)