Military Reports Not Entitled to Copyright, EU Magistrate Says

(CN) – Beginning with a reference to the novel “All Quiet on the Western Front,” an EU magistrate determined Thursday that military reports are not entitled to copyright protection.

German news group Funke Medien NRW brought the matter to a head in 2012 when it began publishing classified briefings about Germany’s military deployments in Afghanistan.

According to today’s ruling, it is unknown where Funke Medien obtained the the UdPs, short for Parliament briefings in German, which are drawn up weekly and sent to select members of Germany’s Federal Parliament.

As publisher of the daily newspaper Westdeutsche Allgemeine Zeitung, Funke Medien had first asked the German government to give it access to all UdPs drawn up between Sept. 1, 2001, and Sept. 26, 2012, but Germany refused the the application on the basis that it would harm national security.

When Funke Medien published its so-called Afghanistan Papers, a Regional Court found that the publication had infringed the government’s copyright.

As Germany’s Federal Court of Justice considers an appeal of that injunction, which forced Funke Medien to withdraw the documents from its website, it invited the European Court of Justice to weigh in.

Advocate General Maciej Szpunar recommended Thursday that Funke Medien prevail after expressing “serious[] doubt that such documents should be classified as works protected by copyright.”

“These are purely informative documents, drafted in absolutely neutral and standardized terms, providing an accurate report of events or stating that no events of interest have occurred,” Szpunar wrote.

“It is commonly accepted as a principle that copyright does not protect ideas but expressions,” he added. “According to one classic formulation, ideas roam free, in that they cannot be monopolized by copyright, unlike the case of, for instance, patents protecting ideas, inventions and suchlike. Copyright protects only the way in which ideas have been articulated in a work. Ideas themselves, severed from any work, can therefore be freely reproduced and shared.”

Szpunar also called it rather unlikely that those wrote the reports here “were able to make free and creative choices in order to express their creative abilities when drafting those documents.”

“The content of purely informative documents that are inevitably drafted in simple and neutral terms is entirely determined by the information they contain, so that such information and its expression become indissociable, thus precluding all originality,” the opinion states. “A degree of effort and skill is required to draw them up, but those elements on their own cannot justify copyright protection. During the discussions in that regard at the hearing, the parties also argued that the structure of the documents at issue could itself be protected by copyright. However, that structure consists in setting out evenly spaced information concerning each foreign mission in which the federal armed forces are participating. Therefore, I do not think that the structure of those reports is more creative than their content.”

Though Germany could invoke the public-interest exception to limit the freedom of expression, Szpunar noted that Germany elected opted here not to prosecute Funke Medien on the basis that such “proceedings would be disproportionate in relation to the public interest in protecting the confidentiality of those documents.”

“In such a situation, the member state cannot invoke its copyright instead of the public interest,” Szpunar added.

Szpunar noted that the court has not been able to review the exact contents of the reports because Funke Medien was forced to remove them.

Because Germany puts out public versions of the UdPs, however, Szpunar said he studied whether these documents known as UdÖs are copyright eligible.

“In my opinion, it can be assumed that even if the information contained in UdPs is more detailed, the form in which it is presented (its expression, in copyright language) is the same in both cases,” he added.

In the opening reference to the German novel by Erich Maria Remarque, Szpunar noted that “‘All Quiet on the Western Front’ declared what is probably the most well-known military report in the history of literature.”

While Szpunar called it natural that this phrase, together with the work as a whole, enjoyed copyright protection, he said that a real military report is not entitled to the same protection as other literary works.

Szpunar’s opinion is not binding on the Luxembourg-based Court of Justice, which will now begin its own deliberations in the case.

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