Eva-Maria Painer v Standard VerlagsGmbH and Others.
Date: 2011-12-01
46. In that regard, it is settled case-law that the need to provide an interpretation of EU law which will be of use to the national court requires that the national court define the factual and legal context of its questions or, at the very least, that it explain the factual circumstances on which those questions are based (see, in particular, Case C‑134/03 Viacom Outdoor  [2005] ECR I‑1167, paragraph 22; Case C‑145/03 Keller  [2005] ECR I‑2529, paragraph 29; and Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others  [2005] ECR I‑10423, paragraph 45).
58. However, it is settled case-law that, within the framework of the cooperation established by Article 267 TFEU, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see Case C‑380/01 Schneider  [2004] ECR I‑1389, paragraph 21; Case C‑165/03 Längst  [2005] ECR I‑5637, paragraph 31; and Case C‑313/07 Kirtruna and Vigano  [2008] ECR I‑7907, paragraph 26).
64. However, those circumstances in no way prevent a national court from referring to this Court for a preliminary ruling a question the answer to which, in the submission of the defendants in the main proceedings, leaves no scope for reasonable doubt (see, to that effect, Joined Cases C‑428/06 to C‑434/06 UGT-Rioja and Others  [2008] ECR I‑6747, paragraphs 42 and 43).
65. Thus, even if the answer to the question referred leaves no scope for any reasonable doubt, that question does not thereby become inadmissible.
73. The rule of jurisdiction laid down in Article 6(1) of Regulation No 44/2001 provides that a person may, where he is one of a number of defendants, be sued in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.
74. That special rule, because it derogates from the principle stated in Article 2 of Regulation No 44/2001 that jurisdiction be based on the defendant’s domicile, must be strictly interpreted and cannot be given an interpretation going beyond the cases expressly envisaged by that regulation (see Case C‑98/06 Freeport  [2007] ECR I‑8319, paragraph 35 and the case-law cited).
76. It is not apparent from the wording of Article 6(1) of Regulation No 44/2001 that the conditions laid down for application of that provision include a requirement that the actions brought against different defendants should have identical legal bases ( Freeport , paragraph 38).
77. As regards its purpose, the rule of jurisdiction in Article 6(1) of Regulation No 44/2001, first, meets, in accordance with recitals 12 and 15 in the preamble to that regulation, the wish to facilitate the sound administration of justice, to minimise the possibility of concurrent proceedings and thus to avoid irreconcilable outcomes if cases are decided separately.
78. Secondly, that rule cannot however be applied so as to allow an applicant to make a claim against a number of defendants with the sole object of ousting the jurisdiction of the courts of the State where one of those defendants is domiciled (see, to that effect, Case 189/87 Kalfelis  [1988] ECR 5565, paragraphs 8 and 9, and Case C‑51/97 Réunion européenne and Others  [1998] ECR I‑6511, paragraph 47).
79. In that regard, the Court has stated that, in order for judgments to be regarded as irreconcilable within the meaning of Article 6(1) of Regulation No 44/2001, it is not sufficient that there be a divergence in the outcome of the dispute, but that divergence must also arise in the same situation of fact and law (see Freeport , paragraph 40).
80. However, in assessing whether there is a connection between different claims, that is to say a risk of irreconcilable judgments if those claims were determined separately, the identical legal bases of the actions brought is only one relevant factor among others. It is not an indispensable requirement for the application of Article 6(1) of Regulation No 44/2001 (see, to that effect, Freeport , paragraph 41).
83. It is, in addition, for the referring court to assess, in the light of all the elements of the case, whether there is a connection between the different claims brought before it, that is to say a risk of irreconcilable judgments if those claims were determined separately. For that purpose, the fact that defendants against whom a copyright holder alleges substantially identical infringements of his copyright did or did not act independently may be relevant.
84. In the light of the foregoing considerations, the answer to the first question is that Article 6(1) of Regulation No 44/2001 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.
The fourth question
87. As regards, first, the question whether realistic photographs, particularly portrait photographs, enjoy copyright protection under Article 6 of Directive 93/98, it is important to point out that the Court has already decided, in Case C‑5/08 Infopaq International  [2009] ECR I‑6569, paragraph 35, that copyright is liable to apply only in relation to a subject-matter, such as a photograph, which is original in the sense that it is its author’s own intellectual creation.
88. As stated in recital 17 in the preamble to Directive 93/98, an intellectual creation is an author’s own if it reflects the author’s personality.
89. That is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices (see, a contrario , Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑0000, paragraph 98).
92. By making those various choices, the author of a portrait photograph can stamp the work created with his ‘personal touch’.
94. In view of the foregoing, a portrait photograph can, under Article 6 of Directive 93/98, 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.
96. In that regard, the Court has held that the protection conferred by that provision must be given a broad interpretation (see Infopaq International , paragraph 43).
97. Moreover, nothing in Directive 2001/29 or in any other directive applicable in this field supports the view that the extent of such protection should depend on possible differences in the degree of creative freedom in the production of various categories of works.
98. Therefore, as regards a portrait photograph, the protection conferred by Article 2(a) of Directive 2001/29 cannot be inferior to that enjoyed by other works, including other photographic works.
99. In the light of the foregoing, the answer to the fourth question is that Article 6 of Directive 93/98 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.
Question 3(a) and (b)
101. In that regard, the provisions of Directive 2001/29 do not expressly address the circumstances in which the interests of public security can be invoked with a view to the use of a protected work, meaning that the Member States which decide to enact such an exception enjoy a broad discretion in that respect (see, by analogy, Case C‑462/09 Stichting de Thuiskopie [2011] ECR I‑0000, paragraph 23).
102. In fact, such a discretion is, first, in accordance with the idea that each Member State is best placed to determine, in accordance with its national needs, the requirements of public security, in the light of historical, legal, economic or social considerations specific to it (see, by analogy, Case C‑213/07 Michaniki  [2008] ECR I‑9999, paragraph 56).
104. That being so, the discretion which the Member States enjoy when they make use of the exception under Article 5(3)(e) of Directive 2001/29 must be exercised within the limits imposed by EU law.
105. In that regard, it is important to note, first, that it is settled case-law that, when adopting measures to implement EU legislation, national authorities must exercise their discretion in compliance with the general principles of EU law, which include the principle of proportionality (see, inter alia, Case C‑313/99 Mulligan and Others [2002] ECR I‑5719, paragraphs 35 and 36; Joined Cases C‑231/00, C‑303/00 and C‑451/00 Cooperativa Lattepiú and Others [2004] ECR I‑2869, paragraph 57; and Case C‑496/04 Slob  [2006] ECR I‑8257, paragraph 41).
106. In accordance with that principle, measures which the Member States may adopt must be appropriate for attaining their objective and must not go beyond what is necessary to achieve it (Case C-434/02 Arnold André  [2004] ECR I‑11825, paragraph 45; Case C‑210/03 Swedish Match [2004] ECR I‑11893, paragraph 47; and ABNA and Others , paragraph 68).
107. Secondly, the discretion enjoyed by the Member States cannot be used so as to compromise the principal purpose of Directive 2001/29 which, as is apparent from recital 9 in its preamble, is to establish a high level of protection for, in particular, authors, which is crucial to intellectual creation.
109. Fourthly, Article 5(3)(e) of Directive 2001/29, being a derogation from the general principle established by that directive, namely the requirement of authorisation from the copyright holder for any reproduction of a protected work, must, according to settled case-law, be interpreted strictly (Case C‑476/01 Kapper  [2004] ECR I‑5205, paragraph 72, and Case C‑36/05 Commission v Spain [2006] ECR I‑10313, paragraph 31).
113. However, having regard to the purpose of the press, in a democratic society governed by the rule of law, to inform the public, without restrictions other than those that are strictly necessary, it is conceivable that a newspaper publisher might, in specific cases, contribute to the fulfilment of an objective of public security by publishing a photograph of a person for whom a search has been launched. However, 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, second, by agreement and in coordination with those authorities, in order to avoid the risk of interfering with the measures taken by them. A specific, current and express appeal, on the part of the security authorities, for publication of a photograph for the purposes of an investigation is not, however, necessary.
120. That provision is intended thus to preclude the exclusive right of reproduction conferred on authors from preventing the publication, by means of quotation accompanied by comments or criticism, of extracts from a work already available to the public.
127. It is clear from the French text of Article 10(1) of the Berne Convention, the material scope of which is comparable to that of Article 5(3)(d) of Directive 2001/29, that the only quotations permissible, under certain conditions, are quotations from a work which has already been lawfully made available to the public.
128. In those circumstances, the French expression ‘ mis[e] à la disposition du public [d’une oeuvre] ’ (making a work available to the public), in the sense of Article 5(3)(d) of Directive 2001/29, must be understood as meaning the act of making that work available to the public. That interpretation is also confirmed not only by the expression ‘made available to the public’ but also by the expression ‘ der Öffentlichkeit zugänglich gemacht ’ used unvaryingly in the English and German versions of both Article 5(3)(d) of Directive 2001/29 and Article 10(1) of the Berne Convention.
Question 2(a)
132. As regards the context surrounding Article 5(3)(d) of Directive 2001/29, it is important to note that, as stated in recital 31 in the preamble to that directive, a ‘fair balance’ must be safeguarded between, on the one hand, the rights and interests of authors, and, on the other, the rights of users of protected subject-matter.
133. It is also important to note that while the conditions set out in Article 5(3)(d) of Directive 2001/29 must, according to the Court’s case-law referred to in paragraph 109 of the present judgment, be interpreted strictly, since that provision is a derogation from the general rule established by that directive, the fact remains that the interpretation of those conditions must also enable the effectiveness of the exception thereby established to be safeguarded and its purpose to be observed (see, to that effect, Football Association Premier League and Others , paragraphs 162 and 163).
134. Article 5(3)(d) of Directive 2001/29 is intended to strike a fair balance between the right to freedom of expression of users of a work or other protected subject-matter and the reproduction right conferred on authors.
135. That fair balance is struck, in this case, by favouring the exercise of the users’ right to freedom of expression over the interest of the author in being able to prevent the reproduction of extracts from his work which has already been lawfully made available to the public, whilst ensuring that the author has the right, in principle, to have his name indicated.
136. From those two opposing points of view, the issue of whether the quotation is made as part of a work protected by copyright or, on the other hand, as part of a subject-matter not protected by copyright, is irrelevant.