From Zuzana Hecko (Allen & Overy, Bratislava) comes some pretty hot news about the battle in Slovakia over whether articles by journalists are deserving of copyright protection. The latest salvo in the battle, contested by press publishers and their new-found foes the monitoring agencies (think Meltwater), comes with a decision of the Bratislava Regional Court which, says Zuzana, creates quite a dangerous precedent. She explains:
“Yet another ‘word of wisdom’ has been delivered by a Slovak Regional Court in the recent Ecopress v Storin decision. This, the first decision in the war between the press publishers and the media monitoring agencies in Slovakia, dealt with the question whether media monitoring agencies need to conclude a licensing agreement with publishers in order to use their works (or extracts from them).
While in other jurisdictions the debate on this point has somehow matured and it is generally not disputed that newspaper articles are authors’ own intellectual creations (which was also clearly confirmed by the Court of Justice of the European Union in Case C-5/08 Infopaq, the Slovak court ruled that newspaper articles constitute “mere information” and therefore are excluded from the scope of the Slovak Copyright Act. Unfortunately, neither Infopaq nor any decisions from other jurisdictions seem to have been pleaded by the publishers. This is quite disappointing since Infopaq expressly states that
“as regards newspaper articles, their author’s own intellectual creation … is evidenced clearly from the form, the manner in which the subject is presented and the linguistic expression. In the main proceedings, moreover, it is common ground that newspaper articles, as such, are literary works covered by Directive 2001/29/EC”.
The court has provided a long and detailed reasoning of how it came to this conclusion by stating that none of the articles which were submitted as evidence by the publishers is “original enough” and that the articles have the character of “daily reports”. Ignoring the wording of the Slovak Copyright Act and Infopaq, the court stated that, apart from the requirements of (1) original and (2) author’s own intellectual creation, there is yet another condition which is required for the work to enjoy copyright protection: the work needs to be “unique”. The court, clearly being aware of the fact that the addition of such requirement goes beyond the current legislation, stated that the condition of “uniqueness”, even if not embedded in the Copyright Act “expressis verbis”, is inherent in the purpose of the Slovak Copyright Act. Such argumentation is clearly in conflict with Infopaq, which confirmed that Directive 2001/29/EC also harmonised the originality principle by stating clearly that
“where provisions of Community law make no express reference to the law of the Member States … they must be normally given an autonomous and uniform interpretation throughout the Community”.
The criterion of uniqueness for a work to enjoy copyright protection is certainly not part of the acquis communautaire.
The court has effectively concluded that there are no literary works published in the press which would be protected by copyright and that editors are not authors. Accordingly, media monitoring agencies do not require a licence from the authors. While in other jurisdictions licences seem to be required even for end users of the monitoring services (Court of Appeal for England and Wales, NLA and others v Meltwater), the Slovak court says it is permissible to copy someone else’s work without obtaining a licence.
The decision is rather disappointing. If court decisions constituted “works” which could be protected by copyright, this decision would certainly qualify, as it is truly “unique” …”