EU Court Of Justice Advocate General: No, Of Course You Can't Copyright Military Reports

from the don't-be-silly dept

Last year we mentioned an interesting (or crazy, depending on your point of view) case that was being sent to the EU Court of Justice (CJEU), on a German case, exploring whether or not a German newspaper had infringed on the government's copyrights in publishing leaked military reports about German operations in Afghanistan (which people are calling the "Afghanistan Papers"). And, yes, as we've discussed before, while US copyright law is quite explicit that works created by our federal government cannot be subject to copyright law, many other countries do have a terrible and highly questionable concept of "crown copyright." In most cases -- including the one at the heart of this case -- such laws are used to stifle the press and freedom of speech. Here it's quite obvious that the case is being brought not because of the copyright incentives in these military reports, but in an attempt to stifle the leaks and intimidate the media from publishing such things.

Either way, the CJEU's Advocate General has weighed in and is now saying that there can be no copyright interest in such a document:

The Advocate General doubts that such reports can be classified as works eligible for copyright protection. He notes in particular that these are purely informative documents, drafted in absolutely neutral and standardised terms, providing an accurate report of events or stating that no events of interest have occurred. Such ‘raw’ information, that is to say, information presented in an unaltered state, is excluded from copyright, which protects only the manner in which ideas have been articulated in a work. Ideas (including raw information) themselves can therefore be freely reproduced and shared.

The Advocate General further states that the actual questions submitted to the CJEU are premature, because German courts should actually first go through the process of determining whether these reports are subject to copyright, even if he doubts it could be.

The Advocate General goes even further in noting that even if there was a copyright interest in the reports, using copyright in this manner would stifle freedom of expression:

...the Advocate General examines further the question whether a Member State can rely on its copyright over documents such as those at issue in order to curtail freedom of expression. In his opinion, the answer to that question should be in the negative.

He points out that the protection of the confidentiality of certain information for the purpose of safeguarding national security is a legitimate ground for restricting freedom of expression.

However, the main proceedings are not concerned with the protection of the documents at issue as confidential information, but as the subject matter of copyright protection.

Although the State is entitled to benefit from the civil right of ownership, such as the right to intellectual property, it cannot rely on the fundamental right to property as a means of restricting another fundamental right such as freedom of expression. The State is not a beneficiary of fundamental rights, but is rather under an obligation to safeguard fundamental rights.

Furthermore, it does not appear necessary to protect military reports by way of copyright.

Of course, this is just the Advocate General making his arguments for the CJEU judges, and they don't have to follow his recommendations. Hopefully, this is one of the times that they actually do listen.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: afghanistan papers, cjeu, copyright, germany, leaks, military reports