On September 27, 2012, Funke Medien requested access to the military situation reports (Unterrichtung des Parlaments “UdP”), prepared by the German government between September 1, 2001, and September 26, 2012, which contain confidential information. Its request was denied, on the grounds that the disclosure of information contained in the UdPs could harm national security interests. However, Funke Medien obtained a large part of the requested UdPs by unknown means, and published several of them on its website.
In response to the above, the German Supreme Court consulted the Court of Justice of the European Union, on the possibility that the disclosure of these reports represented a copyright infringement. In the context of the foregoing, the Court issued a preliminary ruling in which it established that military status reports can be classified as works protected by Copyright, when they: i) constitute intellectual and original creations that reflect the author’s personality and his/her free and creative decision making; and, ii) are not merely informative.
Regarding the possible infringement, the Court observed that although Funke Medien published the UdPs without authorization, these actions could be covered by a limitation to the Copyright regime, given that they imply the use of protected works with the purpose of reporting on current events. Consequently, it invited the German Supreme Court to assess whether the reports have the characteristics of a protected work and to analyze whether the elements of such limitation occur.
