Volker Beck is a German politician. In 1988, a controversial essay was published under his name. Subsequently, he sought to distance himself from the views expressed in the essay, claiming that the editor of the collection in which the essay had appeared had made amendments without his approval. In 2013, he made two versions of his essay available on his website (the original manuscript version and the version as published) alongside text setting out his view that the text of the published version had been changed by the editor without his consent. Spiegel Online published an article claiming that, contrary to Beck’s position, the editor had not made significant changes to the material content of the essay. Alongside the article, both versions of the essay were made available for download via a hypertext link. Beck sued for copyright infringement and the BGH referred a series of questions about the interpretation of the exceptions and limitations under Art 5 to the Court of Justice. These include the latitude question, the broad Charter question and the Charter exceptions question. In addition, the BGH referred specific questions concerning the exception for reporting current events under Art 5(3)(c) and the quotation exception under Art 5(3)(d).
On the latitude question, noting his Opinion in Pelham, Advocate General Szpunar reiterates the limited nature of such freedom and rejects Spiegel Online’s argument that Member States enjoy a broad margin of appreciation because these proceedings fall within the sphere of “culture”.Footnote 45 In his view, such an approach would frustrate the Union’s ability to harmonise rules over a wide area of activity. Before tackling the questions relating to the relationship between the Charter and the law of copyright and related rights, which are left to the end of his Opinion, the Advocate General considers the questions referred on the interpretation of particular exceptions under the Directive.Footnote 46
The BGH asked whether the reporting current events exceptionFootnote 47 could be limited to situations in which it would be unreasonable to expect a user to seek permission to use a protected work. The Advocate General advises that such a restriction is not only permissible, but is actually an inherent requirement of the exception, which only applies “to the extent justified by the informatory purpose” of a use.Footnote 48 In any event, in the view of the Advocate General, the exception could not apply on the facts of this case because Spiegel Online’s use of the work was not simply in connection with a report of current events, but was rather intended to demonstrate that the two versions of the article were identical in essence. In order for such a purpose to be achieved, a reader of the defendant’s article had to read the essay in its two forms. Interpreted in the light of Art 10(2) of the Berne Convention, Art 5(3)(c) does not cover the use of a literary work within the setting of a news report when the reading of the whole or a part of the work is intended to take place as a consequence of such use.Footnote 49
The national court also referred two questions about the scope of the quotation exception. It asked, first, whether a quotation under Art 5(3)(d) could be made by hypertext link to a copy of a work, rather than through more traditional means. The Advocate General notes that the exception may apply to categories of work other than literary works (including musical, cinematographic and artistic works, for example) and that, in such circumstances, it is clearly necessary to adapt (i) the methods employed to incorporate a quotation into a quoting work and (ii) the means employed to identify quotations.Footnote 50 Similarly, even in the case of a literary work, a quotation may be effected by hypertext link. However, on the facts of this case, Beck’s article was published in its entirety as an independently-downloadable PDF. Links to the PDF appeared not only on the webpage carrying Spiegel Online’s article about the essay, but also on its homepage. Such use of the protected work exceeds the boundaries of the quotation exception.Footnote 51 While it may be possible to quote a whole work under the terms of Art 5(3)(d),Footnote 52 such quotation must not enter into competition by offering a substitute for the original.Footnote 53 In this instance, by offering a downloadable copy, the defendant provided a copy in potential competition with the right holder. According to the Advocate General, this conclusion concerns the limits of the exception as a general legal norm and is not therefore affected by the right holder’s apparent motivation to protect his personal interests through these proceedings.Footnote 54
The BGH also asked a further question about the stipulation that Art 5(3)(d) will only apply where a work has lawfully been made available to the public. The Advocate General notes that, in this instance, the work appeared to have been divulged with the consent of the author and that this issue was something which is to be determined by the national court. On Beck’s own website, the essay was accompanied by a disclaimer of the views expressed in the essay and this disclaimer was not reproduced by Spiegel Online. While this might affect Beck’s right to respect for his work, such moral rights do not fall with the harmonised copyright acquis.Footnote 55
Finally, in his Opinion, the Advocate General turns to the referring court’s questions about copyright law and the Charter. He reframes these as a single question. Do the rights of freedom of expression and of the media justify a limitation of the author’s exclusive rights in a case in which a media organisation publishes a work in the context of a debate on matters of general interest?Footnote 56 He refers to his Opinion in Pelham, in which he notes the existence of explicit limitations and exceptions designed to reconcile the exclusive rights of authors with other fundamental rights. The legislature enjoys a margin of appreciation in determining the appropriate balance between these competing rights. The judiciary should intervene only in an exceptional case, in which the essence of a right would otherwise be violated. The emergence of judicially-created exceptions outside Art 5 would imperil the effectiveness of copyright harmonisation in the Union. A form of “fair use” doctrine would be created because every use of a work, to some extent or other, implicates the right of freedom of expression.Footnote 57 Under such a system, the protection accorded to the rights of authors would differ according to national courts’ varying assessments of the requirements of freedom of expression and harmonisation would be transformed into a “pious wish”.Footnote 58
The Advocate General acknowledges (i) that Volker Beck is a political figure, (ii) that the work at issue here expresses his opinion on a matter of general interest and (iii) that the contested publication took place in the context of a debate preceding legislative elections. However, the situation in Spiegel Online is to be distinguished from that in Funke Medien, where the copyright claim was brought by the German state, which is not itself entitled to fundamental rights protection.Footnote 59 In Spiegel Online, the rightholder is an individual, who enjoys a fundamental right of property. The task of balancing this right with other fundamental rights was primarily for the legislator. A political figure, such as Beck, must expect to be subject to particularly close public scrutiny and, in some circumstances, this scrutiny might justify the publication of a work without permission. Consider, for example, a situation in which misleading information about the contents of a work had been provided.Footnote 60 However, here, Beck had disclosed the two versions of the essay on his own website. Spiegel Online could have achieved its objective without interfering as intrusively with his property interest, either by quoting the relevant parts of the articles or by providing a hyperlink to Beck’s site.Footnote 61 Spiegel Online suggested that the disclaimer on the copies of the texts published on Beck’s website might prevent a reader from making an objective assessment of the material. However, in the view of the Advocate General, readers were quite capable of weighing up the value of the disclaimer.Footnote 62 Similarly, he is not convinced by the argument that a hypertext link to Beck’s site is insufficient for its purposes because the effectiveness of the link depends on the continued posting of the versions of the essay on that site. If the versions of the essay were to be removed from Beck’s website, the balance of rights might shift.Footnote 63
The Advocate General’s conclusion on the balance of rights in this instance is not affected by the fact that Beck’s copyright action was motivated by a desire to protect his personal interests, rather than his property interests. Copyright protects authors against the unauthorised use of works by third parties. While moral rights are not covered by the legislative acquis, the existence of such rights in national law is to be taken into account when interpreting the Directive. In this instance, if the Court were to permit the free use of works where an author is motivated by purely personal, rather than economic, considerations, the existence of moral rights in national law would not be sufficiently acknowledged.Footnote 64 Furthermore, in balancing fundamental rights in a case like this, it is important to note that the right of property is not the only relevant right enjoyed by an author. Beck was motivated here by a desire to ensure that the publication of his essay was accompanied by a disclaimer of the views expressed therein. Freedom of thought, including the freedom to change beliefs, is protected under Art 10 of the Charter.Footnote 65 According to the Advocate General, there is no reason why a politician, such as Beck, should not enjoy this right. How could Beck exercise his freedom to change conviction if copies of the earlier essay were freely published in his name without the disclaimer? Where Beck seeks to protect his rights under the Charter by exercising the copyright in his works within the bounds of the law, there is no abuse and any limitation on Spiegel Online’s freedom of expression is justified.