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EU Court of Justice issues three important decisions on copyright and fundamental rights

On 29 July 2019, the EU Court of Justice (Grand Chamber) issued three important copyright decisions. The decisions relate to the interconnection between copyright and related rights and the exercise of fundamental rights (fair use).

1. Funcke Medien (C-469/17):

On the publication of the so-called 'Afghan Papers' by a German newspaper, the Court decided that:

"Freedom of information and the freedom of the press cannot justify a derogation from the rights of copyright holders beyond the exceptions and limitations set out in the Copyright Directive. However, as far as concerns military status reports, a national court must, first of all, ascertain whether the conditions are satisfied so that those reports can be regarded as protected by copyright, before considering whether the use of the reports is capable of falling within the scope of such exceptions or limitations."

You can read the full press release here.

It is debatable that military reports meet the orginality threshold to be eligible for copyright protection. Even if this is the case, a proper balance must always be struck with the fundamental right to freedom of expression and information, especially where the communication of a protected work is important in relation to the political discourse, democratic structure and general public interest. If the balance weighs in favour of the public interest, such communication should not be subject to the prior consent of the author, notably where the communication is made for the purpose of reporting important current events (see the 'Spiegel Online' case below).

2. Pelham (C-467/17 - Metall auf Metall):

On the issue of 'sampling', the Court decided that:

"Sampling without authorisation and in a form which allows the work from which that sample was taken to be identified can infringe a phonogram producer’s rights. However, the use of a sound sample taken from a phonogram in a modified form unrecognisable to the ear does not infringe those rights, even without such authorisation."

You can read the full press release here.

In practice, artists using samples from other songs, no matter how small, would need a licence and/or authorisation from the phonogram producer if the sample is unmodified or only modified to an extent that the original song is still recognisable. How this equivalence is established and what the relevant 'ear' will be to consider a certain sample recongisable is not determined. These benchmarks will likely be heavily debated in other sampling cases to come.

3. Spiegel Online (C-516/17):

On the communication and hyperlinking of a manuscript in a news article, the Court decided that:

"The use of a protected work for the purposes of reporting current events does not, in principle, require a prior request for authorisation. Furthermore, a work may be quoted by means of a hyperlink, provided that that quoted work, in its specific form, was previously made available to the public with the copyright holder’s authorisation or in accordance with a non-contractual licence or statutory authorisation."

You can read the full press release here.

As is the case with the 'Funcke Medien' case above, one must first evaluate whether the communication of a protected work for the purpose of providing information to the public serves the public interest and is sufficiently proportionate to justify the communication on the basis of the freedom of expression and information, without the authorisation of the author. Such a balancing exercise would require the evaluation of additional factors, such as the fact that the communication of the full work - instead of only part of the work - would be necessary to achieve the informatory purposes.

Should you have any questions or require further information on these decisions or copyright matters in general, please contact Flip Petillion at

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