The Court of Justice Rules on Copyright Protectability of Facebook Posts and Exception for Reporting Current Events: Gandul Media (C-598/24)

The recent judgment of the Court of Justice in Gandul Media (C‑598/24) tackles two crucial EU copyright law issues: (i) the notion of a copyright work; and (ii) the Member State implementation discretion concerning the copyright exception for reporting current events in Article 5(3)(c) of Directive 2001/29/EC.

The preliminary reference from Romania concerned a 22-line Facebook post by a schoolteacher which discouraged parents to give her gifts. In a newspaper online article, a journalist reproduced the entire text without her permission. The teacher sued for copyright infringement. The referring court had doubts regarding the protectability of the text and the application the exception for reporting current events, which led the case to the Court of Justice.

As this analysis demonstrates, on the notion of a work, the Court does not add anything new to the previous case law on the topic. Interestingly though, on the exception implementation, it provides clearer guidance on the Member States’ implementation discretion.

Notion of a Work

The Court is often asked to interpret this notion. Starting from Infopaq (C-5/08), through Cofemel (C-683/17), Brompton Bike (C-833/18), Levola Hengelo (C-310/17), among many others, to its most recent pronouncement in mio/konektra (C-580/23), the approach has remained consistent. In particular, the Court reminds that the concept of a copyright work is an ‘autonomous concept of EU law’ to be interpreted and applied uniformly bringing in two cumulative requirements for protection: (i) originality in the sense that it is the author’s own intellectual creation; and (ii) only an expression of such creation satisfies the condition. The Court ties this definition to Article 2(1) of the Berne Convention, which demands protection for literary, scientific and artistic domain works, whatever the mode or form of their expression may be, namely a broad definition. Factors such as length, outlet being online and belonging to a predetermined literary genre are irrelevant, unless these compromise the authorial creative freedom by leaving the author without space to express their free and creative choices. The Court leaves the detailed assessment to the national court, but based on the information in the referral, it identifies that in drafting the social media post the teacher made free and creative choices which lead to a copyright protected work.

Exception for Reporting Current Events

Central was the issue of whether the Romanian implementation of the exception and in particular two specific elements in its definition – its applicability only to ‘short extracts’ with ‘no direct or indirect commercial or financial benefit’, go beyond its given mandate derived from Article 5(3)(c). The Member States’ implementation discretion here is conditioned upon several factors, dictated by EU law: (i) the wording of the relevant provision (Articles 5(2) and (3) of the Directive 2001/29/EC), respecting the general principles of EU law such as proportionality; (ii) the objectives of the directive, which on the one hand demand high level of protection for authors and ensuring the functioning of the internal marker, while on the other safeguard for the effectiveness of the exceptions; (iii) the three step test laid down in Article 5(5) of the Directive 2001/29/EC.; and (iv) the balance between various fundamental rights as per the Charter of Fundamental Rights.

‘Short Extracts’

The Court held that the limitation to ‘short extracts’ in the implementation (as opposed to allowing the entire publication of a work) is not precluded by the above principles. One interesting aspect is that when seeking to balance of fundamental rights the Court highlights that the exercise of freedom of information and freedom of the press, underlying the specific exception, does not demand the use of the entire work since the use of extracts of sufficient length “does not compromise the effectiveness of the exception while ensuring the protection of copyright holders”. A question remains as what the consequences of this would be for very short literary works, something that copyright law still protects since there are no quantitative restrictions to the protectability analysis. The Court does not directly handle this but instead, relying on the three-step test in Article 5(5), highlights the risky situation whereby reproducing a text in its entirety (as part of an exception) would replace “the original communication of that work”. This would make it redundant for the public to consult the original work and thus conflict with the normal exploitation of that work by its author.

To that end, the national implementation of the exception limiting it to short extracts remains compliant with EU law.

‘No Direct or Indirect Commercial or Financial Benefit’

The result is different for the other contested aspect. The commercial and financial benefit in the Romanian implementation does not have a basis in the mother provision in Directive 2001/29/EC (Article 5(3)(c)). The Court agrees with the Advocate General that media outlets would normally pursue an economic activity which is necessary for them to operate. Such a limitation on direct or indirect commercial or financial benefit compromises the effectiveness of the exception and disturbs the balance between the different fundamental rights at stake, namely right to IP (Article 17 of the Charter) and freedom of expression (Article 11 of the Charter).

Consequently, the condition of not having a direct or indirect commercial or financial benefit when relying on the exception is precluded by EU law.

Comment

One of the first striking features of this case are the facts – a schoolteacher sues a media outlet for copyright infringement over a Facebook post of 22 lines. The Court is commended for bringing in the fundamental rights discussion in this debate and strongly rooting its exceptions and limitations reasoning in the Charter.

Next, the notion of a work in copyright law is a recurring issue before the Court of Justice, but also national courts. By now, the two cumulative conditions elaborated on above have been firmly ingrained in the jurisprudence. Nonetheless, at times it may seem that scope of copyright protection has expanded excessively. The Court in Gandul Media (C‑598/24) once again emphasises the necessity of free and creative authorial choices reflected in the final output. What it unfortunately fails to do is to lay the emphasis on the creative process as much as the product. This is worrying since much of the creative-looking output these days has been assisted or generated in various ways by generative AI technologies. Therefore, knowing more about the creative process leading to an author stamping their creative expression in a work is becoming more important than previously thought. In mio/konektra (C-580/23), the Court stated that authorial intention during the process is alone not a hallmark of an original copyright work, unless that is visibly reflected in the final work. Generative AI challenges this proposition as the machine can act as a shortcut for the creator to the extent that creativity is offloaded to a machine – something no sensible copyright framework should protect.

On the exceptions and limitations front, the Court’s approach is slightly more convincing. This area of copyright law is highly contested due to its partial harmonisation and the many national iterations of the various exceptions. Thus, the Court’s efforts to structure the analysis when assessing an implementation’s compatibility with EU law is much welcome, especially in view of the many pending referrals to the Court on this specific topic.

This post was first published on EU Law Live on 10 September 2026.