To what extent can the press reproduce and use texts published on social media without the author's consent? This question lies at the heart of a case brought before the Court of Justice of the European Union ("CJEU"), following a request for a preliminary ruling submitted by the High Court of Cassation and Justice ("HCCJ" or "High Court") in September 2024. The need for clarification arose in the context of a case pending before Romanian courts, [1] in which the plaintiff is receiving legal assistance and representation from the law firms BACIU PARTNERS and Turcu & Turcu.
Context of the dispute
The dispute that led to the referral to the CJEU has the following coordinates: through a lawsuit filed before the Bucharest Tribunal, the claimant CY[2] requested, in opposition with the defendants Gândul Media Network SRL ("Gândul") and HO,[3] that the court finds an infringement of the claimant's copyright by the defendants.
The claimant criticized, in essence, the defendats' full reproduction on the website of the publication Gândul of a text she had written and published on her personal Facebook page three years earlier (in 2018), a text that came to Gândul’s attention after it was reposted by the claimaint again on her Facebook page in 2021. In the Facebook post, the claimant, in her capacity as a teacher, expressed her opinion regarding the “gifts” that parents typically give to teachers at the beginning of the school year, thus the resharing of her post three years later occurred in the context of a new school year starting.
According to the claimant, the defendants thus reproduced, without authorisation, a work belonging to her, by publishing a press article which faithfully reproduces the text. Gândul described the "surprising" character of the text reproduced without the author's consent.
The claimant also requested that Gândul removes the work from its own website, order the defendants, jointly and severally, to pay the amount of RON 2,500 as moral damages and that the court’s decision be published in the same manner as the original article.
Course of the dispute
The Bucharest Tribunal, the court of first instance, dismissed the claimant's requests, finding that the text published by her on her personal Facebook page does not constitute a “work”, within the meaning of Article 7 of Law no. 8/1996 on copyright and related rights ("Law no. 8/ 1996"), therefore, does not benefit from copyright protection. In its reasoning, the Tribunal considered that the text is merely a list of the claimant's grievances, as a teacher, and that it lacked originality.
The claimant appealed the decision.
The Bucharest Court of Appeal dismissed the appeal and upheld the ruling of the lower court, reasoning that the text published by the claimant lacked originality, as it did not go beyond the bounds of a normal discourse expressing a position on certain customs within the school environment. According to the assessment of the Bucharest Court of Appeal, in order to be protected by copyright, the creation should have been an "artistic work".
The appellate court further stated that a text can only qualify as an “artistic work” if it introduces into its artistic domain something new and engaging—something that evokes emotion in those who read it.
At the same time, the appellate court’s reasoning noted that the defendants had not intended to appropriate the message, conceptual content, or form of the published text, but merely to positively highlight the claimant's opinion and to bring the issue she addressed to public attention.
Against the decision rendered on appeal, CY filed a second appeal, requesting the High Court to refer the matter to the CJEU for a preliminary ruling for the clarification of the concept of “work”.
The question proposed by CY sought to clarify how national courts should assess the criteria already established by the CJEU for determining whether a creation is eligible for copyright protection, as summarized in Case C-683/17, Cofemel – Sociedade de Vestuário S.A. v. G-Star Raw CV (“the Cofemel Case”)[4]. Specifically, the question was whether the existence of an original and identifiable object is sufficient for a creation to be protected by copyright, or whether an additional, purely subjective criterion should also be required - namely, that the creation must reflect the notion of art.
In support of her second appeal and the request for referral to the CJEU, CY argued that although she believes the answer should reject the idea of a subjective criterion, there is an inconsistent judicial practice of the Romanian courts, which often misinterpret the concept of a "work" by incorrectly analyzing the originality requirement.
More precisely, CY criticized the lower courts’ approach of assessing originality based on an alleged artistic component of the creation—implying that, in order to qualify as a "work," a creation must exhibit artistic traits.
The appellant argued that this angle of analysis is characterized by subjectivity and exceeds the competence of the national court - which, in such a context, would be called upon to determine what constitutes art and what does not. Therefore, this approach is not in accordance with the rules of interpretation established by the CJEU, and these aspects require clarification from the CJEU itself.
Request for a preliminary ruling
Following deliberations, the High Court granted the request to refer the matter to the CJEU. CY’s proposed question was reformulated and supplemented by a second question, added at the initiative of the HCCJ, as follows:
„1. Must the provisions of Article 2(a) of Directive 2001/29 of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society[5] be interpreted as meaning that a text posted on a social network expressing an opinion relating to social practices regarded as inappropriate may be considered to be a work protected by copyright?
2. Must the provisions of Article 5(3)(c) of Directive 2001/29 of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society be interpreted as precluding a provision of national law that permits the use, for the purposes of providing information on topical issues, of only short extracts from a work but not of the work as a whole, in particular where it is of short length, and only on condition that there is no direct or indirect commercial or economic advantage?”
Brief considerations on the request for a preliminary ruling
The request for a preliminary ruling therefore seeks to clarify two important issues:
1. Whether texts expressing opinions, published on social media, fall within the category of "other writings" in art. 2 para. (1) of the Berne Convention for the Protection of Literary and Artistic Works (the 'Berne Convention') and may benefit from legal protection by copyright; and
2. Whether the exception provided for in Article 5 para. (3) letter (c) of Directive 2001/29/EC (the "Directive") has been correctly transposed into Romanian law by the provisions of art. 35 para. (2) letter c) of Law no. 8/1996.
Regarding the first issue, it will be interesting to note whether the CJEU will reaffirm the principles outlined in the Cofemel case, where it was stated that the qualification of a creation as a "work" cannot be determined using a subjective criterion – such as the criterion of the aesthetic/artistic value of the creation – but must instead be assessed using objective criteria.
The Cofemel case synthesizes the CJEU's perspective up to the time of its ruling and offers a particularly important point of reference – namely, that the aesthetic/artistic value of an object “is the product of an intrinsically subjective sensation of beauty experienced by each individual who may look at that design. Consequently, that subjective effect does not, in itself, permit a subject matter to be characterised as existing and identifiable with sufficient precision and objectivity, within the meaning of the case-law cited in paragraphs 32 to 34 of the present judgment.”
At the same time, it will be interesting to see whether the notion of "other writings", as provided for in the list under Article 2 of the Berne Convention[6], can include any kind of texts, including texts published in less official channels or formats (e.g. on social media), as long as they meet the legal criteria for copyright protection. Such an analysis would allow the CJEU to bring the interpretation of the notion of “text” into today's technological reality, in which a large portion of written content that, if printed, would qualify for copyright protection, is now published exclusively or entirely online.
As for the second issue, the Court is essentially being asked to determine whether the exception allowing the reproduction of copyrighted works by the press for the reporting of current events and informative purposes has been correctly transposed into Romanian law within the limits established by the Directive.
The HCCJ's question arises in the context where the provisions of Romanian law (Article 35(2)(c) of Law no. 8/1996) may be considered more restrictive than the provisions of the Directive (Article 5(3)(c) of Directive 2001/29/EC), since Romanian law provides that the exception for reporting current events for informational purposes applies only if the excerpts taken from the work are short and their use is made without any direct or indirect commercial or economic advantage.
In other words, Romanian law could be interpreted to mean that the press may not reproduce protected works in their entirety, but must instead limit itself to reproducing only those excerpts necessary for fulfilling the purpose of informing the public, and must not exploit the exception for commercial or economic gain.
Therefore, the High Court's question raises two aspects of the issue: (i) whether Romanian legal provisions comply with the limits of the Directive, and (ii) what limits apply to the press when reproducing works, particularly when the works in question are not of substantial length.
Conclusions
To what extent are social media posts protected by copyright and to what extent can they be reproduced and quoted by media outlets?
The answer can, of course, be "it depends". However, the preliminary ruling to be issued in Case C-598/24 will, hopefully, establish the criteria needed to answer these questions – bringing greater clarity to this aspect of intellectual property law.
The CJEU will weigh the competing interests at stake—particularly, on the one hand, the right to intellectual property protection as a symbol of a civilized society that fosters free thought and innovation, and, on the other hand, the right of the press to present its readers with examples of such texts, even when they are published on social media.
While awaiting the Court of Justice of the European Union's decision, we consider important to highlight that freedom of expression is not a universal remedy that the press can invoke in all situations, and the use of works created by others must always be carried out within the limits and spirit of the law, which aims to ensure a balance between the right to information and the copyright protection.
The law firms BACIU PARTNERS and Turcu & Turcu continue to provide representation in the ongoing proceedings before the Court of Justice of the European Union. We will provide updates on the progress of the case as soon as new information becomes available.
[1] https://www.scj.ro/1094/Detalii-dosar?customQuery%5B0%5D.Key=id&customQuery%5B0%5D.Value=300000000994350
[2] Anonymization belonging to the CJEU.
[3] Id.
[4] Judgment of 12 September 2019 in Case C-683/17 Cofemel - Sociedade de Vestuario S.A. v G-Star Raw CV (C-683/17, EU:C:2019:721, paragraphs 29 to 35).
[5] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02001L0029-20190606
[6] The Berne Convention of 9 September 1886 for the Protection of Literary and Artistic Works, completed at Paris on 4 May 1896, revised at Berlin on 13 November 1908, completed at Berne on 20 March 1914, revised at Rome on 2 June 1928, revised at Brussels on 26 June 1948, revised at Stockholm on 14 July 1967 and at Paris on 24 July 1971 and amended on 28 September 1979, available at this link: https://www.wipo.int/wipolex/en/treaties/textdetails/12214