CJEU - C 145/10 / Judgment

Eva-Maria Painer v Standard VerlagsGmbH and Others
Deciding body type
Court of Justice of the European Union
Deciding body
Court (Third Chamber)
Decision date
ECLI (European case law identifier)
  • CJEU - C 145/10 / Judgment
    Key facts of the case:

    Reference for a preliminary ruling: Handelsgericht Wien - Austria. Jurisdiction in civil matters - Regulation (EC) No 44/2001 - Article 6(1) - More than one defendant - Directive 93/98/EEC - Article 6 - Protection of photographs - Directive 2001/29/EC - Article 2 - Reproduction - Use of a portrait photograph as a template to establish a photo-fit - Article 5(3)(d) - Exceptions and limitations as regards quotations - Article 5(3)(e) - Exceptions and limitations for the purposes of public security - Article 5(5).

    Outcome of the case:

    On those grounds, the Court (Third Chamber) hereby rules:

    1. Article 6(1) of Council Regulation (EC) No 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 Article 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, second, by agreement and in coordination 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 Article 5(5) of that directive, must be interpreted as not precluding its application where a press 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 Article 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 Article 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.
  • Paragraphs referring to EU Charter

    115) In addition, as is clear from Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, and Article 11 of the Charter of Fundamental Rights of the European Union, freedom of the press is not intended to protect public security but it is the requirements of the protection of public security which can justify a restriction on that freedom.