Online publishers are able to use copyrighted content in news reports without the consent of rights holders in cases where they can rely upon a statutory limitation or exception from copyright, the EU's highest court has ruled.
The ruling makes clear that it is not necessary to seek the authorisation of the rightholder where reasonably possible and that the Information Society Directive does not include a requirement to do so and that it cannot be read into Article 5(3)(c) of the Directive.
The Court of Justice of the EU (CJEU) confirmed that publishers can also link to content that rights holders have previously made public themselves without the need to obtain authorisation. This derives from the right of quotation, yet another statutory limitation to copyright.
In its judgment, the CJEU clarified, though, that publishers cannot rely on the freedom of expression rights they enjoy under EU law to make use of copyrighted content owned by others in ways that go beyond what is justified under one of the statutory limitations and exceptions to copyright. Any exuberant use requires the rights holders' consent for such use.
The CJEU made its ruling in a case referred to it from Germany where a member of the Bundestag, Germany's parliament, has challenged digital publisher Spiegel Online's publication of a manuscript that the politician, Volker Beck, had made available to it and which he had published online.
Spiegel Online reported on the contents of the manuscript and further provided a link to the full manuscript that Beck had published on his own website amidst scrutiny over whether the contents of what he had authored differed from a version published in a book. Beck has maintained that his original version was altered by the book publisher. Spiegel Online has challenged Beck's version of events in its reporting, according to the CJEU ruling.
It is now up to the Federal Court of Justice in Germany to interpret the CJEU's judgment and determine whether, in light of the court's clarifications, whether Spiegel Online is responsible for copyright infringement as Beck has alleged.
EU copyright law provides rights holders with a qualified right to control how their work is reproduced and communicated to the public. Exceptions and limitations to these rights are written into the law, however, and make provision for the otherwise unauthorised use of copyright work for current events reporting and quotation purposes, among other things.
The CJEU said quotations are legally permissible if the quoted work has already been lawfully made available to the public in its specific form, for example with the rightholder’s authorisation or in accordance with a non-contractual licence or statutory authorisation.
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