Introduction

In Case C ‑ 469/17, Funk Median NRW GmbH v Bundesrepublik Deutschland, the question arose in particular whether military relations can be protected by copyright.

The German Federal Army considered that it held copyright on information reports relating to operations it carries out abroad.

It was Advocate General Spear who had the opportunity to address this question and to answer it in the negative (see here).

The reasoning of Advocate General Spear

According to the Advocate General, the military reports in question are “purely informative documents, written in perfectly neutral and standardized language, accurately reporting events or informing that no event of interest has occurred” ( §14 of the Opinion of the Advocate General).

In doing so, the military reports in question are little more than “raw information”, that is to say information presented “as is”, without any particular formatting or organization specific to the author (§§15 and 16 of the Opinion of the Advocate General); However, copyright does not protect raw information (little more than ideas), but only the form or the formatting of this raw information (provided that this form or formatting is original):

“(…) it is commonly accepted as a principle that copyright protects not ideas but expressions. Ideas are, according to a classic formulation, free flow, in the sense that they cannot be monopolized by means of copyright (…) Copyright only protects the way in which ideas have been formulated in an artwork. The ideas themselves, disconnected from any work, can therefore be reproduced and communicated freely. 

This exclusion of ideas from copyright protection extends to “raw” information that is, presented as is. (…) Deprived of any enrichment, the expression of information then merges with the information itself. The monopolization of expression, by means of copyright, would therefore lead to the monopolization of information. This exclusion from the protection of raw information already appeared in the Berne Convention for the Protection of Literary and Artistic Works, signed in Berne on September 9, 1886 (Paris Act of July 24, 1971), as amended on September 28, 1979 (hereinafter - after the "Berne Convention"), the main international instrument for the protection of copyright, including Article 2, paragraph 8,

For these reasons, the Advocate General considers that the military reports submitted to him are not works within the meaning of copyright because, being too basic, too neutral, and too crude, they do not go beyond the stage of idea / stage of raw information.

The Advocate General does not stop there. He further corroborates his conclusion (absence of copyright protection) by referring to the criterion of originality: supposing that these military reports could be works within the meaning of copyright, they would not testify anyway. Not of the originality necessary to be able to be protected by copyright. As a reminder, originality means that the author of a work has been able, during the production of it, to make free and creative choices. However, the Advocate General tells us, given the nature and content of the military reports in question, it is unlikely that the authors of these reports could have made such free and creative choices. Indeed, since these reports are purely informative and consist of reporting, with the greatest accuracy and the greatest fidelity, of the events which took place and the way in which these events took place, it is difficult to see to what extent the authors of these reports had a (creative) leeway to relate these events; The same applies to the writing style and structure of these reports: the style being simple and neutral, and the structure of these reports being chronological, we do not see where the choices could lie (a fortiori creative) revealing originality. It is the content that dictates the form without leaving any creative freedom to the authors of these reports. In §19 of his conclusions, the Advocate General states:

“(…) it seems unlikely to me that the author (s) of these documents, whom we do not know, but who are probably civil servants or officers of the federal army, could have made free and creative choices to express their creative abilities when drafting said documents. As these are purely informative documents and inevitably written in simple and neutral language, their content is totally determined by the information they contain, so that this information and their expression merge, thus excluding any originality. Their development certainly requires a certain effort and know-how, but these elements, by themselves, cannot justify the protection of copyright. When discussing this point at the hearing, the parties also argued that the structure of the documents at issue could itself be protected by copyright. However, this structure consists in presenting at regular intervals information concerning each foreign mission in which the federal army takes part. The structure of these reports therefore does not appear to me to be more creative than their content”.

My point of view

1.    Without having seen these reports myself, I think the reasoning of the Advocate General is in the right direction.

Since ideas and raw information are not copyrightable, if the subject matter, for which protection is claimed, is little more than an idea or raw information, it should not be given copyright. Protection.

2.    However, I am surprised that there is this reasoning in two stages on the part of the Advocate General: (I) it is not a work because it is too crude / purely factual and (ii) supposing that it is a work, it is not original because no own intellectual creation (no personal contribution) of the author.
3.    I think that the debate should have been placed only on the level of originality because there is, in this case, a work (in particular, a literary work that is to say of the text). A report is a text.

However, a text - whatever its content - can be considered as a work within the meaning of copyright.

But then the question of the originality of this text arises: if this text is purely informative, purely factual, banal, etc., it is not original and therefore unprotected.

So I think that's where the real nuance lies between the first question (is there a work?) And the second (is the work original?).

4.    Example illustrating this distinction:

Historical facts are not protectable as such. History belongs to everyone. No one has “created” it and can claim a monopoly over it.

(Raw) historical facts are therefore not a work.

But from the moment we tell these historical facts in a text, there is indeed a work: the text which tells these historical facts (1st question to ask).

And the only question which then arises is: is this text which tells historical facts original? (2nd question to ask)

As soon as there is a formatting of the raw idea, raw facts, etc., there is a work; and the only question to ask is to know if this formatting (which is a work) is original. If the answer is yes, there is protection; if the answer is no, there is no protection.

5.    I, therefore, think that the Advocate General gets tangled up when he says that these military reports are not works because they only faithfully recount military operations and activities and that these reports are therefore crude ideas. Pure facts.

No… these reports are literary works (the qualification of work is therefore indisputable).

It is simply that the originality is, it seems, lacking; because these texts only reproduce reality, without particular formatting, without original criticism, without particular view of the author, etc.

As counter-examples:

• In a judgment of October 28, 2016 ( -Cons., 2016/4, pp. 886-895), the Brussels Court of Appeal considered that works dedicated to political science and economics were original and therefore protected by copyright because (I) the authors of these have made free and creative choices through the choice, arrangement, and combination of the words composing these works, (ii) that they have chosen delivered to an original approach to the subjects dealt with and (iii) that they have adopted a personal and critical presentation of these subjects;
• In a decision of August 2, 2012 (Ingo.-Cons., 2012/1, pp. 30-38), the Commercial Court of Liège concluded that work on psychology was original due to (I) the structure of this work (chapters by psychological injury) and (ii) how the author has chosen to address the reader.

6.    Also beware of generalizations: this is not because these reports have been considered excluded from copyright protection (moreover by an Advocate General, at this stage; and not by the Court. itself), that this means that allmilitary reports (anyone) should necessarily be excluded from protection.

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There is no exclusion in principle (everything is a question of the concrete formatting, specific to each report, to be examined on a case-by-case basis).

Everything will therefore depend, in concerto, on the way in which these (other) military reports are put into shape and on whether the author of them was able to create or induce something of his own (highlighting facts in an original way, original style or presentation, critical point of view, personal point of view, expression and writing of sentences going beyond a purely neutral and standardized language, way of addressing the reader, particular structure of the report, etc. - the above criteria are obviously not cumulative!).

We will usefully recall here the teaching of the Infopaq judgment (C-5/08) of the Court of Justice of the European Union concerning the originality of written works / articles (originality which can be understood fairly well). Broadly, as the Court itself explains):

• "With regard to press articles, the intellectual creation specific to their author, referred to in paragraph 37 of this judgment, regularly results from the way in which the subject is presented, as well as from linguistic expression(...)  "  (§ 44);
• "The choice, the arrangement and the combination of these words" allow the author "  to express his creative spirit in an original way and to achieve a result constituting an intellectual creation"  (§45);

Be careful not to exclude too quickly the originality of writings, articles, reports, etc., even if their subject is factual, scientific and / or technical!