Background

Two non-profit organisations whose main focus is to make the law freely accessible to all citizens, made a request to the EU Commission (the Commission) for access to documents held by the Commission which deal with four harmonised standards (the norms) adopted by the European Committee for Standardisation (CEN), a private organization.

The norms deal with the safety of science-oriented toys. These privately developed toy safety norms are not freely available, but must be purchased. European law refers to these privately developed standards, which are not binding for the manufacturers, but have the advantage of ensuring compliance with the European standard.

The Commission rejected two of the plaintiffs' requests, arguing that the standardisation documents were protected by copyright, which prevented such disclosure. The plaintiffs then brought an action before the GC (T-185/19) seeking to overturn the rejection decisions.

Decision

The GC dismisses the action and confirms the Commission's decision, based on the following three factors:

Limitation of access based on copyright law

The right of access to documents held by the EU institutions is subject to certain limits, based on public or private interest grounds.  In the case at hand, the Commission claimed that access could be limited if “commercial interests of a natural or legal person, including intellectual property” would be undermined.

The GC recognizes here that it must be taken into account that copyright law is largely formed on a national basis, which applies in particular to exceptions and limitations. As such the GC assessed the Commission’s evaluation of copyright protection for these standardization documents and found that “the Commission based its finding on the existence of copyright protection for the requested harmonised standards on objective and consistent evidence such as to support the existence of the copyright claimed by CEN for those standards.”

Copyright protection for the standardization documents

The second decisive factor was whether the texts, including the standardisations, were protectable by copyright. When refusing the requested disclosure, the Commission affirmed that the texts were covered by copyright, based on the length of the texts which implied that the authors had to make a number of decisions, in particular in structuring the document.

Copyright protection for the documents at hand

The CJEU's case-law on the interpretation of the autonomous concept of a “work” sets out that, if a subject matter is to be capable of being regarded as original, it would both be necessary and sufficient that the subject matter reflects the personality of its author, as an expression of his or her free and creative choices. According to the GC, therefore, the Commission was authorized to affirm copyright protection of the documents.

The GC also points out that the plaintiffs have not succeeded in refuting the arguments of the Commission, and  therefore implicitly agrees with the Commission in that the texts are protectable by copyright.

Furthermore, on the plaintiffs’ argument that the documents may contain data which could be considered as factual or relating to procedures, the GC finds that “freedom” of originality would not be narrowed by this since the documents had not been published in the Official Journal of the European Union. As such, they do not form European law, which would be denied corresponding protection.

No overriding public interest

In addition, the GC finds that the Commission had rightly considered that disclosure would have a significant economic impact on standardisation organizations such as CEN. This is because the license fees are an integral part of the economic activities of such organizations.

The Commission had also correctly denied an “overriding public interest”. Ensuring the functioning of the European standardisation system, with the aim of promotion of free movement of goods while guaranteeing an equivalent minimum level of safety in all European countries, would prevail over the guarantee of freely available access to the harmonised standards without charge, even if there were such an interest in free access to the law.

Comment

The decision takes place in a complex field of conflicting interests. On the one hand, there is considerable interest in the free accessibility of standardisations. This is because the standardisations often ultimately become a de facto part of European law.

On the other hand, it must be taken into account that the standardisations and, consequently, the corresponding documents were not created by the legislator itself, but by a private organization. In principle, this organization is entitled to protection under copyright law, provided that the work reaches the required level of originality.

The question of whether this is the case for the documents in question was answered in the affirmative by the GC, in particular with reference to the length of the relevant texts dealing with the harmonized standards. In doing so, it applied the European definition of a “work”, which the CJEU has continued to develop over the last decade (e.g. Infopaq, BSA, Levola Hengelo, Cofemel).

It should be noted, however, that the length of the text alone is not a characteristic of whether a text is protectable by copyright or not  - indeed, a text of just 11 words can claim copyright protection (CJEU, Infopaq). Inversely, this does not necessarily apply to a long advertisement text (Higher Regional Court of Berlin, 24 W 57/16; Regional Court of Frankenthal, 6 O 102/20). The GC could therefore have emphasized more strongly here a possible "freedom" for creativity – because where there is no "freedom", no copyright protection is possible.

The decision is in line with German law and the case law of the higher regional courts. The Higher Regional Court of Hamburg decided back in 2017 that documents dealing with the DIN standard can be protected by copyright (Higher Regional Court Hamburg, 3 U 220/15 Kart). According to Section 5(1) and (2) German Copyright Act, “official works” are exempt from copyright protection. However, this does not apply to "private normative works", even if these are referred to in official works. Such “private normative works” would in the case at hand include the harmonised standardisations, adopted by the CEN.

In the wider EU landscape it’s important to be aware that copyright law can come into play in less obvious arenas, often shadowed by high-profile arenas such as uses on the Internet, which are the subject of Art. 17 DSM Directive (see our last blog post on the opinion in the annulment proceedings before the CJEU here). We are keeping an eye on this full range of issues and will continue to report on a wide variety of developments.