On 12th of April 2011, AG Trstenjak delivered her Opinion in Case C-145/10, Painer v Standard VerlagsGmbH et al., in which the Court of Justice has been asked to clarify several issues concerning copyright protection of portrait photos and their use in news reports (reported by IPKat here). AG advised following:

1. The notion of ‘close connection’ under 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 is to be interpreted as requiring a single factual situation and a sufficient legal connection between the claim against the defendant who is domiciled in the place where the court is based (anchor claim) and the other claim. In a case such as the present, a single factual situation cannot be taken to exist where the contested conduct of the anchor defendant and of the other defendant appears to be unconcerted parallel conduct. A sufficient legal connection may exist even where different national law which is not fully harmonised is applicable to the two claims.

2. (a) Article 5(3)(d) 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 is to be interpreted to the effect that a Member State has the power to permit the quotation of a work without the author’s consent even where the press report quoting the work is not itself protected by copyright.

(b) That provision also requires the person making the quotation to indicate the name of the author of a photo protected by copyright unless this turns out to be impossible. Indicating the author’s name does not turn out to be impossible where the person making the quotation has not taken all the measures to identify the author which appear reasonable having regard to the circumstances of the individual case.

3(a) Article 5(3)(e) of Directive 2001/29 is to be interpreted to the effect that in the case of a search appeal which pursues a purpose of public security within the meaning of that provision a Member State may permit the reproduction of copyright photos by the media even without the author’s consent if the purposes pursued by the search have not been fulfilled and the reproduction is objectively capable of pursuing those purposes.

(b) The media may not rely directly on that provision in order to justify a reproduction without the author’s consent.

4. Under Article 6 of Council Directive 93/98/EEC harmonising the terms of protection of copyright and certain related rights and of Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights, a portrait photo is afforded copyright protection if it is an original intellectual creation of the photographer, which requires the photographer to have left his mark by using the available formative freedom.

The publication of a photo-fit based on a copyright portrait photo constitutes a reproduction within the meaning of Article 2(a) of Directive 2001/29 where the elements comprising the original intellectual creation of the template are also embodied in the photo-fit.

Opinion includes some very interesting thoughts on the notion of originality and interpretation of copyright exceptions (and probably more – as Huťko couldn’t read entire Opinion so far).

For some commentary by Stef van Gompel click here and here.