Funke Medien has not, a priori, infringed the Copyright Directive by publishing documents of the German army classified as restricted, in that its work may contribute to the duty to inform the public. It is, however, for the national court to determine in advance whether these classified documents are indeed covered by the Copyright Directive and, consequently, whether Funke Medien's work can be included in the criteria for a derogation from that Directive.
The Court of Justice of the European Union delivered this judgment on Monday 29 July (Case No. C-469/17). The judges recalled that Funke Medien had requested in September 2012 access to these information reports on Bundeswehr interventions abroad, spread over 11 years and called "Unterrichtung des Parlaments" (parliamentary information or "UdP"). This request was rejected on the grounds that the disclosure of certain information could have significant adverse security effects. However, Funke Medien had obtained a large part of the UdPs and had published several of them as the "Afghanistan-Papers".
Considering that Funke Medien had infringed the Copyright Directive with these UdPs, the Federal Republic of Germany brought an action before the German civil courts to stop the infringement.
In its judgment, the Court states that it is primarily for the national court to verify that the conditions for UdPs to be protected by copyright are met. If these conditions are met, it stresses that freedom of information and freedom of the press, even if guaranteed by the Charter of Fundamental Rights, are not likely to justify a derogation from copyright, in particular from the author's exclusive rights of reproduction and communication to the public, apart from the exceptions and limitations provided for in Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.
These exceptions and the balance provided for in the Directive between copyright protection and the protection of the interests and fundamental rights of users of protected subject-matter, in particular their freedom of expression and information, as well as the general interest, must therefore be examined more closely.
It is also necessary to examine the case law of the European Court of Human Rights in order to balance copyright and the right to freedom of expression. This case law has highlighted the need to take into account the fact that the type of "discourse" or information in question is of particular importance, particularly in the context of political debate or a debate of general interest.
On this basis, the Court of Justice of the European Union states in its judgment that it is not excluded that the use of UdPs by Funke Medien "may be covered by the exception concerning reports of current events provided for by the Copyright Directive" (Original version in French by Solenn Paulic)