Papeles de Afganistán

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CJEU Attorney General (“AG”) Maciej Szpunar has argued that the Federal Republic of Germany cannot claim intellectual property rights over a military report to prevent a newspaper from publishing it. Mr. Szpunar indicated this in his conclusions in case C-469/17 Funke Medien NRW (“Afghanistan Papers”), published on October 25, 2018.

The dispute involves a German newspaper that published certain official reports. The Federal Republic of Germany has ordered its military corps to submit a weekly report on the situation of each of the country’s military interventions abroad. Although these reports are confidential, a German newspaper obtained access to them and published a report entitled “The Afghanistan Papers.” The German government asked to have these publications deleted on the grounds that they breach the state’s intellectual property rights over the military reports.

In his conclusions, the AG noted that the reports narrate the facts and use language that is “perfectly neutral and standardized.” This makes the documents merely “informative” and likely lacking the necessary originality for them to be considered works of intellectual property (a question that in any case should be determined by a national court). The AG recalled that the protection granted by intellectual property covers “only the manner in which ideas have been articulated” but not the ideas themselves or the “raw” information. Therefore, the ideas (and the raw information) can be freely reproduced and communicated.

As AG Szpunar noted, the key issue in this case is whether article 11 of the Charter of Fundamental Rights of the European Union (on freedom of expression) “should be interpreted as precluding a Member State from relying on its copyright over documents such as those at issue in the main proceedings in order to curtail the freedom of expression laid down in that article.”

According to Mr. Szpunar, the answer should be yes. Invoking copyright to prevent the documents in question from being published would be a limit on freedom of expression that is not allowed according to the requirements under article 52.1 of the Charter of Fundamental Rights, because it is not a necessary restriction in a democratic society and it is not effectively based on the general interest or a need to protect third party rights. Therefore, the AG argues that the CJEU should answer the lower court that a Member State cannot invoke copyright “to prevent the communication to the public, in the context of a debate concerning matters of public interest, of confidential documents emanating from that Member State.” The AG noted that this would not prevent Member States from applying other provisions of their national law, in accordance with European Union law, “including those relating to the protection of confidential information.”

We are watching closely to see whether the CJEU’s judgment will agree with the AG’s conclusions in this case, and we will update this blog accordingly.

Authors: Ane Alonso and Raúl Pérez Terol

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