Thomson Sweet & Maxwell
*89 Painer v Standard Verlags GmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, Spiegel-Verlag Rudolf Augstein GmbH & Co KG, Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG
(C-145/10)
European Court of Justice (Third Chamber)
1 December 2011
[2012] E.C.D.R. 6
Judges: K. Lenaerts , President of the Chamber , J. Malenovský ( Rapporteur ), E. Juhász , G. Arestis and T. von Danwitz , Judges ( Advocate General: V. Trstenjak ):
December 1, 2011
Allocation of jurisdiction; Copyright; Domicile; EU law; Infringement; Originality; Photofit pictures; Photographs; Press
H1 Whether joint legal proceedings allowed where copyright infringements are identical in substance but based on differing national legal grounds—the standard of originality to be applied to photographs—whether portrait photos are afforded “weaker” copyright protection or no copyright protection—whether art.5(3)(d) of Directive 2001/29 allows quotation if author is not attributed—whether art.5(3)(e) of Directive 2001/29 allows use of an image in the interests of criminal justice in the context of public security—whether media permitted to determine if images should be published in the interest of public security under on art.5(3)(e) of Directive 2001/29—Held that joint legal proceedings allowed—that photographs are protected under copyright law if it is an intellectual creation of the author—that art.5(3)(e) of Directive 2001/29 does not allow media to use, of their own volition, a copyright work under public security reasons—that art.5(3)(d) applies to all protected subject-matter—that art.5(3)(d) of Directive 2001/29 obliges attribution to either the name of the author or the source.
H2 The Applicant is a freelance photographer, photographing, in particular, children in nurseries and day homes. She took several photographs of Natascha K., designing the background, deciding the position and facial expression, and producing and developing them (“the contested photographs”). The photographs were labelled, indicating her name and business address. The photographs were sold without conferring on third parties any rights over them and without consenting to their publication. After Natascha K., then aged 10, was abducted in 1998, the competent *90 security authorities launched a search appeal in which the contested photographs were used. In 2006 Natascha K. managed to escape from her abductor.
H3 The defendants in the main proceedings are newspaper and magazine publishers, based in Austria and Germany. Following Natascha K.’s escape and prior to her first public appearance, the defendants published the contested photographs in newspapers, magazines and websites without indicating the name of the photographer, or indicating a name other than Ms Painer’s as the photographer. Several of those publications also published a portrait, created by computer from the contested photographs, which, since there was no recent photograph of Natascha K. until her first public appearance, represented the supposed image of Natascha K. (“the contested photo-fit”).
H4 Painer sought an order that the defendants immediately cease the reproduction and/or distribution, without her consent and without indicating her as author, of the contested photographs and the contested photo-fit. The Austrian Supreme Court ruled that the defendants did not need Painer’s consent to publish the contested photo-fit. The Handelsgericht Wien decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
(1) Is Article 6(1) of Regulation 44/2001 to be interpreted as meaning that its application and therefore joint legal proceedings are not precluded where actions brought against several defendants for copyright infringements identical in substance are based on differing national legal grounds the essential elements of which are nevertheless identical in substance—such as applies to all European States in proceedings for a prohibitory injunction, not based on fault, in claims for reasonable remuneration for copyright infringements and in claims in damages for unlawful exploitation?
(2)(a) Is art.5(3)(d) of Directive 2001/29 , in the light of art.5(5) of that directive, to be interpreted as meaning that its application is not precluded where a press report quoting a work or other protected matter is not a literary work protected by copyright?
(b) Is art.5(3)(d) of Directive 2001/29 , in the light of art.5(5) thereof, to be interpreted as meaning that its application is not precluded where the name of the author or performer is not attached to the work or other protected matter quoted?
(3)(a) Is art.5(3)(e) of Directive 2001/29 , in the light of art.5(5) thereof, to be interpreted as meaning that in the interests of criminal justice in the context of public security its application requires a specific, current and express appeal for publication of the image on the part of the security authorities, i.e. that publication of the image must be officially ordered for search purposes, or otherwise an offence is committed?
(b) If the answer to question 3a should be in the negative: are the media permitted to rely on art.5(3)(e) of [Directive 2001/29 ] even if, without such a search request being made by the authorities, they should decide, of their own volition, whether images should be published “in the interests of public security”?
(c) If the answer to question 3b should be in the affirmative: is it then sufficient for the media to assert after the event that publication of an image served to trace a person or is it always necessary for there to be a specific appeal *91 to readers to assist in a search in the investigation of an offence, which must be directly linked to the publication of the photograph?
(4) Are art.1(1) of Directive 2001/29 in conjunction with art.5(5) thereof and art.12 of the Berne Convention , particularly in the light of art.1 of the First Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms [signed at Rome on November 4, 1950] and art.17 of the Charter of Fundamental Rights of the European Union , to be interpreted as meaning that photographic works and/or photographs, particularly portrait photos, are afforded “weaker” copyright protection or no copyright protection at all against adaptations because, in view of their “realistic image”, the degree of formative freedom is too minor?
H5 Held by the Court of Justice, which answered the referral questions as follows:
1 Article 6(1) of Council Regulation 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not precluding its application solely because actions against several defendants for substantially identical copyright infringements are brought on national legal grounds which vary according to the Member States concerned. It is for the referring court to assess, in the light of all the elements of the case, whether there is a risk of irreconcilable judgments if those actions were determined separately.
2 Article 6 of Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights must be interpreted as meaning that a portrait photograph can, under that provision, be protected by copyright if, which it is for the national court to determine in each case, such photograph is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph. Since it has been determined that the portrait photograph in question is a work, its protection is not inferior to that enjoyed by any other work, including other photographic works.
3 Article 5(3)(e) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society , read in the light of art.5(5) of that directive, must be interpreted as meaning that the media, such as newspaper publishers, may not use, of their own volition, a work protected by copyright by invoking an objective of public security. However, it is conceivable that a newspaper publisher might, in specific cases, contribute to the fulfilment of such an objective by publishing a photograph of a person for whom a search has been launched. It should be required that such initiative is taken, first, within the framework of a decision or action taken by the competent national authorities to ensure public security and, secondly, by agreement and in co-ordination with those authorities, in order to avoid the risk of interfering with the measures taken by them, without, however, a specific, current and express appeal, on the part of the security authorities, for publication of a photograph for the purposes of an investigation being necessary.
4 Article 5(3)(d) of Directive 2001/29 , read in the light of art.5(5) of that directive, must be interpreted as not precluding its application where a press *92 report quoting a work or other protected subject-matter is not a literary work protected by copyright.
5. Article 5(3)(d) of Directive 2001/29 , read in the light of art.5(5) of that directive, must be interpreted as meaning that its application is subject to the obligation to indicate the source, including the name of the author or performer, of the work or other protected subject-matter quoted. However, if, in applying art.5(3)(e) of Directive 2001/29 , that name was not indicated, that obligation must be regarded as having been fulfilled if the source alone is indicated.
H6 Cases referred to:
Arnold André GmbH & Co KG v Landrat des Kreises Herford (C-434/02) [2004] E.C.R. I-11825; [2005] 1 C.M.L.R. 25
Bacardi-Martini SAS v Newcastle United Football Co Ltd (C-318/00) [2003] E.C.R. I-905; [2003] 1 C.M.L
Thomson Sweet & Maxwell
*89 Painer v Standard Verlags GmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, Spiegel-Verlag Rudolf Augstein GmbH & Co KG, Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG
(C-145/10)
European Court of Justice (Third Chamber)
1 December 2011
[2012] E.C.D.R. 6
Judges: K. Lenaerts , President of the Chamber , J. Malenovský ( Rapporteur ), E. Juhász , G. Arestis and T. von Danwitz , Judges ( Advocate General: V. Trstenjak ):
December 1, 2011
Allocation of jurisdiction; Copyright; Domicile; EU law; Infringement; Originality; Photofit pictures; Photographs; Press
H1 Whether joint legal proceedings allowed where copyright infringements are identical in substance but based on differing national legal grounds—the standard of originality to be applied to photographs—whether portrait photos are afforded “weaker” copyright protection or no copyright protection—whether art.5(3)(d) of Directive 2001/29 allows quotation if author is not attributed—whether art.5(3)(e) of Directive 2001/29 allows use of an image in the interests of criminal justice in the context of public security—whether media permitted to determine if images should be published in the interest of public security under on art.5(3)(e) of Directive 2001/29—Held that joint legal proceedings allowed—that photographs are protected under copyright law if it is an intellectual creation of the author—that art.5(3)(e) of Directive 2001/29 does not allow media to use, of their own volition, a copyright work under public security reasons—that art.5(3)(d) applies to all protected subject-matter—that art.5(3)(d) of Directive 2001/29 obliges attribution to either the name of the author or the source.
H2 The Applicant is a freelance photographer, photographing, in particular, children in nurseries and day homes. She took several photographs of Natascha K., designing the background, deciding the position and facial expression, and producing and developing them (“the contested photographs”). The photographs were labelled, indicating her name and business address. The photographs were sold without conferring on third parties any rights over them and without consenting to their publication. After Natascha K., then aged 10, was abducted in 1998, the competent *90 security authorities launched a search appeal in which the contested photographs were used. In 2006 Natascha K. managed to escape from her abductor.
H3 The defendants in the main proceedings are newspaper and magazine publishers, based in Austria and Germany. Following Natascha K.’s escape and prior to her first public appearance, the defendants published the contested photographs in newspapers, magazines and websites without indicating the name of the photographer, or indicating a name other than Ms Painer’s as the photographer. Several of those publications also published a portrait, created by computer from the contested photographs, which, since there was no recent photograph of Natascha K. until her first public appearance, represented the supposed image of Natascha K. (“the contested photo-fit”).
H4 Painer sought an order that the defendants immediately cease the reproduction and/or distribution, without her consent and without indicating her as author, of the contested photographs and the contested photo-fit. The Austrian Supreme Court ruled that the defendants did not need Painer’s consent to publish the contested photo-fit. The Handelsgericht Wien decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
(1) Is Article 6(1) of Regulation 44/2001 to be interpreted as meaning that its application and therefore joint legal proceedings are not precluded where actions brought against several defendants for copyright infringements identical in substance are based on differing national legal grounds the essential elements of which are nevertheless identical in substance—such as applies to all European States in proceedings for a prohibitory injunction, not based on fault, in claims for reasonable remuneration for copyright infringements and in claims in damages for unlawful exploitation?
(2)(a) Is art.5(3)(d) of Directive 2001/29 , in the light of art.5(5) of that directive, to be interpreted as meaning that its application is not precluded where a press report quoting a work or other protected matter is not a literary work protected by copyright?
(b) Is art.5(3)(d) of Directive 2001/29 , in the light of art.5(5) thereof, to be interpreted as meaning that its application is not precluded where the name of the author or performer is not attached to the work or other protected matter quoted?
(3)(a) Is art.5(3)(e) of Directive 2001/29 , in the light of art.5(5) thereof, to be interpreted as meaning that in the interests of criminal justice in the context of public security its application requires a specific, current and express appeal for publication of the image on the part of the security authorities, i.e. that publication of the image must be officially ordered for search purposes, or otherwise an offence is committed?
(b) If the answer to question 3a should be in the negative: are the media permitted to rely on art.5(3)(e) of [Directive 2001/29 ] even if, without such a search request being made by the authorities, they should decide, of their own volition, whether images should be published “in the interests of public security”?
(c) If the answer to question 3b should be in the affirmative: is it then sufficient for the media to assert after the event that publication of an image served to trace a person or is it always necessary for there to be a specific appeal *91 to readers to assist in a search in the investigation of an offence, which must be directly linked to the publication of the photograph?
(4) Are art.1(1) of Directive 2001/29 in conjunction with art.5(5) thereof and art.12 of the Berne Convention , particularly in the light of art.1 of the First Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms [signed at Rome on November 4, 1950] and art.17 of the Charter of Fundamental Rights of the European Union , to be interpreted as meaning that photographic works and/or photographs, particularly portrait photos, are afforded “weaker” copyright protection or no copyright protection at all against adaptations because, in view of their “realistic image”, the degree of formative freedom is too minor?
H5 Held by the Court of Justice, which answered the referral questions as follows:
1 Article 6(1) of Council Regulation 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not precluding its application solely because actions against several defendants for substantially identical copyright infringements are brought on national legal grounds which vary according to the Member States concerned. It is for the referring court to assess, in the light of all the elements of the case, whether there is a risk of irreconcilable judgments if those actions were determined separately.
2 Article 6 of Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights must be interpreted as meaning that a portrait photograph can, under that provision, be protected by copyright if, which it is for the national court to determine in each case, such photograph is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph. Since it has been determined that the portrait photograph in question is a work, its protection is not inferior to that enjoyed by any other work, including other photographic works.
3 Article 5(3)(e) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society , read in the light of art.5(5) of that directive, must be interpreted as meaning that the media, such as newspaper publishers, may not use, of their own volition, a work protected by copyright by invoking an objective of public security. However, it is conceivable that a newspaper publisher might, in specific cases, contribute to the fulfilment of such an objective by publishing a photograph of a person for whom a search has been launched. It should be required that such initiative is taken, first, within the framework of a decision or action taken by the competent national authorities to ensure public security and, secondly, by agreement and in co-ordination with those authorities, in order to avoid the risk of interfering with the measures taken by them, without, however, a specific, current and express appeal, on the part of the security authorities, for publication of a photograph for the purposes of an investigation being necessary.
4 Article 5(3)(d) of Directive 2001/29 , read in the light of art.5(5) of that directive, must be interpreted as not precluding its application where a press *92 report quoting a work or other protected subject-matter is not a literary work protected by copyright.
5. Article 5(3)(d) of Directive 2001/29 , read in the light of art.5(5) of that directive, must be interpreted as meaning that its application is subject to the obligation to indicate the source, including the name of the author or performer, of the work or other protected subject-matter quoted. However, if, in applying art.5(3)(e) of Directive 2001/29 , that name was not indicated, that obligation must be regarded as having been fulfilled if the source alone is indicated.
H6 Cases referred to:
Arnold André GmbH & Co KG v Landrat des Kreises Herford (C-434/02) [2004] E.C.R. I-11825; [2005] 1 C.M.L.R. 25
Bacardi-Martini SAS v Newcastle United Football Co Ltd (C-318/00) [2003] E.C.R. I-905; [2003] 1 C.M.L
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