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[Editor's note] Like most countries and regions in the world, The rulings of the Court of Justice of the European Union have important guiding significance and predictive value for understanding the legal norms of the European Union. Esabaril (ELZABURU) At the beginning of each year, typical cases of the Court of Justice of the European Union in the previous year are summarized and published, And a brief review of each case, In order to help customers and partners to understand the EU intellectual property norms. Given the importance of Chinese customers and partners, We try to publish the Chinese version of typical cases on a weekly basis, It is convenient for Chinese partners to learn the latest information in a timely manner.
[background]
The Federal government of Germany produces a weekly newspaper, Reporting on the operations of its armed forces overseas. Funke Medien Is a German news website operator, Application for inspection 2001 years 9 Lunar solstice 2021 years 9 The above report was produced between months, But it was rejected, The reason is that "May adversely affect the security interests of the armed forces" . Funke Medien Immediately after "Afghanistan document" title, Much of the report is available on its website, It is accompanied by an introductory note, Related file hyperlinks, And allow comments.
The Federal Republic of Germany asked the court for an injunction, requirement Funke Medien Stop infringing on the copyright of their reports. The application was upheld in both the first and second trials, The Federal Court of Justice of Germany received the complaint, Request the European Court of Justice to make a preliminary ruling on the relevant issues in this case.
[conclusion]
Before analyzing the issues raised by the hearing court, The European Court of Justice pointed first, only "works" Is protected by copyright. "works" It should be original, It's the author's own intellectual creation, It must also reflect the personal qualities of the author, The writer is free to make creative choices. above "works" The scope is limited to the creative part. It is up to the Member States to accept the court's decision, Whether the dispute report is copyrighted "works" category.
The first question posed by the court of Admissibility, "Directive of the European Parliament and of the Council on the harmonization of partial provisions on copyright and related rights in the information society (The first 2001/29/EC No) " The first 2 (a) Articles and regulations 3 (1) The right of reproduction and the right of public dissemination of the works stipulated in this Article, And control 5 (2) and (3) The restrictions and exceptions to the exclusive rights of the work stipulated in the Article, Whether all member states are required to comply uniformly, Or allow member states to adapt to their national circumstances?
The European Court of Justice held that the directive No 2 Articles and regulations 3 Strip alignment "The right of reproduction and the right of public communication" Define clearly, No conditions may be attached to the acquisition of such rights. In addition, The European Court of Justice has ruled before, These provisions are intended to ensure a high level and uniform protection of these rights, Therefore, These provisions are uniformly applicable, It shall not be amended upon conversion to national law.
And instruction control 5 The scope of exceptions and restrictions stipulated in the Article has not yet been fully unified. It shall be based on the circumstances of the specific case, Determine its application and transformation.
but, In this case, Discretion of member states to use exceptions and restrictions, There are four limitations:
1. Should be in EU law—— "European Union regulation 2001/29/EC Number instruction" As well as the fundamental principles of EU law——Exceptions and restrictions apply within prescribed limits.
2. When the Member States exercise their discretion in exceptional and restrictive circumstances, Without prejudice "European Union regulation 2001/29/EC Number instruction" Legislative purpose: Provide a high level of protection for authors, Equitably balance the rights and interests between the right holders and the users of the works, Ensure the proper functioning of the single internal market.
3. Discretion to exercise exceptions and limitations, But also be subjected to "European Union regulation 2001/29/EC Number instruction" The first 5 (5) Bar restriction, The article sets out three circumstances in which restrictions may be applied: (1) Only applicable in certain situations; (2) Shall not conflict with the normal use of the work; and, (3) Have to reasonably damage the legitimate interests of copyright owners.
4. When transposing an EU directive into national law, Member States should ensure that their interpretation of exceptions and restrictions strikes a fair balance between the fundamental rights protected by EU law.
After clarifying the above points, The European Court of Justice answered the third question from the Court of Admissibility, namely, Freedom of the press and freedom of information, "European Union regulation 2001/29/EC Number instruction" The first 5 (5) Beyond the circumstances specified in this Article. Other legitimate exceptions to the exercise of the right of reproduction and the right of public communication?
The European Court of Justice held that, The purpose of the restrictive specification applies in this case, That is "European Union regulation 2001/29/EC Number instruction" One of the purposes of, It is to ensure a fair balance between the rights and interests of the owners and users of the work. Therefore, If Member States are allowed to fall outside the limits set out in the directive, Freedom to add new restrictions, Would run counter to the unity of purpose pursued by EU directives. Therefore, Not outside the exceptions set out in the EU directive, Add freedom of the press and freedom of information as legitimate exceptions to the right to reproduction and the right to public dissemination.
Finally, The European Court of Justice answered the German court's second question, An explanation of the circumstances under which the restriction applies, Can not adopt restrictive interpretation, Rather, it adopts interpretations that take full account of the need to respect freedom of expression and freedom of information?
The European Court of Justice held that, The way in which the competent authorities and courts of member States interpret their national law, It should be consistent with EU directives, And protect "Charter of Fundamental Rights of the European Union" Stipulated fundamental rights.
Although exceptions to the general rule should be interpreted restrictively, But it should also conform to the legislative purpose of the rules, And maintain its validity. Therefore, When there is a balance to be struck between copyright and freedom of expression, It is necessary to consider the controversy "speech" Or the importance of the information itself.
Therefore, European court of justice ruling, If the court of the member State considers that the dispute report constitutes a case "works" , The act of publishing the report is consistent "European Union regulation 2001/29/EC Number instruction" The first 5 (3) (c) The conditions specified in this article, It can be recognized as a legitimate exception to the exercise of copyright.
[comment]
The EU directive has defined and interpreted copyright exceptions and restrictions broadly enough, And that in itself speaks for itself, Member States are no longer allowed to decide at their discretion to extend the exceptions and restrictions specifically enumerated in the directive. If the European Court of Justice finds otherwise, Then what little unity there is in this area will be completely destroyed.
Unfortunately, This is despite the fact that the European Court of Justice in its ruling briefly assessed the conditions for a work to be considered original, But it did not explicitly decide whether the report in question could be considered a work. As a result, the accepting court cannot directly rely on this ruling, Determine whether the relevant restrictive circumstances can be applied to the dispute report, This is because the premise is that the dispute report belongs to the category of works, And this point, In principle, It's still up for debate.
compile: Liu Dan, Esabarry Legal Counsel source: Esabaril (ELZABURU) Intellectual property rights