CY v Gândul Media Network SRL and HO (C-598/24)

Contents

Judgment of the Court (Second Chamber)3 September 2026^note(Reference for a preliminary ruling — Approximation of laws — Directive 2001/29/EC — Harmonisation of certain aspects of copyright and related rights in the information society — Reproduction right — Article 2(a) — Concept of a work — Short text posted on a social network and reproduced in the online press — Article 5 — Exceptions and limitations — Article 5(3)(c) — Reporting of current events — Degree of harmonisation — Article 5(5) — Three-stage test)In Case C‑598/24,REQUEST for a preliminary ruling under Article 267 TFEU from the Înalta Curte de Casaţie şi Justiție (High Court of Cassation and Justice, Romania), made by decision of 14 May 2024, received at the Court on 16 September 2024, in the proceedingsCYvGândul Media Network SRL,HO,THE COURT (Second Chamber),composed of K. Jürimäe, President of the Chamber, K. Lenaerts, President of the Court of Justice, acting as Judge of the Second Chamber, F. Schalin (Rapporteur), M. Gavalec and Z. Csehi, Judges,Advocate General: M. Szpunar,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– CY, by I. Nicolescu, avocată,– the Romanian Government, by E. Gane, R. Antonie and M. Chicu, acting as Agents,– the European Commission, by J. Samnadda and E.A. Stamate, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 18 December 2025,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 2(a) and Article 5(3)(c) 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 (OJ 2001 L 167, p. 10).

2The request has been made in proceedings between, on the one hand, CY, a teacher, and, on the other, Gândul Media Network SRL, the manager of the website of the online daily newspaper ‘Gândul’, and HO, a journalist, concerning the publication on that website, by HO, of a text by CY, in breach of the copyright in respect of which she is the rightholder.

Legal context

International law

3Article 2 of the Berne Convention for the Protection of Literary and Artistic Works, signed in Berne on 9 September 1886 (Paris Act of 24 July 1971), in the version arising from the amendment of 28 September 1979 (‘the Berne Convention’), provides, in paragraph 1, as follows:‘The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; …’

4The World Intellectual Property Organisation (‘WIPO’) adopted in Geneva on 20 December 1996 the WIPO Copyright Treaty, which entered into force on 6 March 2002. That treaty was approved on behalf of the European Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6). According to Article 1(4) of that treaty:‘Contracting Parties shall comply with Articles 1 to 21 and the Appendix of the Berne Convention.’

European Union law

5Article 2 of Directive 2001/29, headed ‘Reproduction right’, provides:‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:(a) for authors, of their works;…’

6Article 5 of that directive, headed ‘Exceptions and limitations’, provides, in paragraph 3(c) and in paragraph 5:3.Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:…(c) reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author’s name, is indicated, or use of works or other subject matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author’s name, is indicated, unless this turns out to be impossible;…5. The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder.’

Romanian law

7Article 35(1) and (2) of the Legea nr. 8/1996 privind dreptul de autor și drepturile conexe (Law No 8/1996 on copyright and related rights) of 14 March 1996 (Monitorul Oficial al României, Part I, No 60 of 26 March 1996) provides:(1) The following uses of a work that has previously been made available to the public are permitted without the author’s consent and without the payment of any remuneration, provided that they are compatible with fair practice, do not conflict with the normal exploitation of the work and do not cause harm to the author or the rightholder:…(2)Under the conditions laid down in paragraph (1), reproduction, distribution, broadcasting or communication to the public is permitted, where there is no direct or indirect commercial or financial benefit:…(c) of short extracts of works, in the context of information on current events, but only to the extent justified by the purpose in pursuit of which the information is being provided;…’

8Article 35(4) of that law, having regard in particular to the situations referred to in paragraph 2(c) thereof, lays down an obligation to indicate the source and the name of the author of the work used, unless that turns out to be impossible.

The dispute in the main proceedings and the questions referred for a preliminary ruling

9On 8 September 2021, the appellant in the main proceedings, CY, who is a teacher, published on her Facebook page a text of 22 lines entitled ‘Short guide for parents at the start of the school year’. She stated, in essence, that she did not wish to receive gifts from her pupils’ parents.

10On 14 September 2021, HO, a journalist, published on the website of the online daily newspaper ‘Gândul’ an article entitled ‘An original message from a teacher for parents who are thinking of giving her gifts at the start of the school year’. That article reproduced the entire text published by CY, without the latter’s prior consent. It is apparent from the order for reference that the name of the appellant in the main proceedings and the source of that text, in the form of a hypertext link to that Facebook page, were subsequently added.

11CY brought an action before the Tribunalul București (Regional Court, Bucharest, Romania) seeking, first, a declaration that her copyright had been infringed and, second, compensation for the material and non-material damage suffered as a result of that infringement. By judgment of 26 April 2022, that court dismissed that action on the ground that the text at issue was not eligible for copyright protection. The Curtea de Apel București (Court of Appeal, Bucharest, Romania) upheld that ruling by its judgment of 3 May 2023.

12CY brought an appeal before the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania), which is the referring court. Before that court, the question arises as to whether the text at issue may be classified as a ‘work’ within the meaning of Article 2(a) of Directive 2001/29.

13If the text should be classified as a work, that court is also uncertain as to the scope of the exception to the reproduction right provided for in the second case under Article 5(3)(c) of that directive, in so far as it refers to ‘use of works or other subject matter in connection with the reporting of current events’.

14The referring court wishes to know, first, whether reproduction on the website of an online newspaper of a text posted on a social network and expressing an opinion on social practices regarded as inappropriate in a school setting is capable of constituting reporting of a ‘current event’ within the meaning of that provision. It is also uncertain, inter alia, whether the exception provided for in the second case under Article 5(3)(c) of Directive 2001/29 is applicable where that reproduction is not accompanied by the possibility of public debate.

15That court is uncertain, second, as to the limits which govern that exception in so far as the national legislation at issue in the main proceedings provides, in essence, that short extracts of works may be reproduced, provided that no direct or indirect financial or commercial benefit is derived from them. Since those conditions do not appear in the wording of Article 5(3)(c) of Directive 2001/29, that court has doubts as to whether the application of that exception to Article 35 of Law No 8/1996 on copyright and related rights is compatible with that Article 5(3)(c).

16In those circumstances, the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:(1) Must the provisions of Article 2(a) of Directive [2001/29] 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] 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?’

Consideration of the questions referred

The first question

17By its first question, the referring court asks, in essence, whether Article 2(a) of Directive 2001/29 must be interpreted as meaning that a text posted on a social network and expressing an opinion on social practices regarded as inappropriate comes within the concept of a ‘work’ within the meaning of that provision.

18As a preliminary point, it should be recalled that, under Article 2(a) of that directive, Member States are to provide authors with the exclusive right to authorise or prohibit direct or indirect reproduction by any means and in any form of their ‘works’. Thus, subject matter can be protected by copyright under that directive only if such subject matter can be classified as a ‘work’ within the meaning of that provision (see, to that effect, judgment of 29 July 2019, Funke Medien NRW, C‑469/17, EU:C:2019:623, paragraph 18).

19The concept of a ‘work’ constitutes, as is clear from the Court’s settled case-law, an autonomous concept of EU law which must be interpreted and applied uniformly, requiring two cumulative conditions to be satisfied. First, the subject matter concerned must be original in the sense that it is the author’s own intellectual creation. Second, only something which is the expression of the author’s own intellectual creation may be classified as a ‘work’ within the meaning of Directive 2001/29 (see, to that effect, judgments of 16 July 2009, Infopaq International, C‑5/08, EU:C:2009:465, paragraphs 37 and 39; of 13 November 2018, Levola Hengelo, C‑310/17, EU:C:2018:899, paragraphs 35 to 37; and of 24 October 2024, Kwantum Nederland and Kwantum België, C‑227/23, EU:C:2024:914, paragraph 48).

20As regards the first of those conditions, the Court points out that, if subject matter is to be capable of being regarded as original, it is both necessary and sufficient that the subject matter reflects the personality of its author, as an expression of his or her free and creative choices (judgment of 12 September 2019, Cofemel, C‑683/17, EU:C:2019:721, paragraph 30 and the case-law cited).

21As regards the second of those conditions, the Court has stated that the concept of a ‘work’ that is the subject of Directive 2001/29 necessarily entails the existence of subject matter that is identifiable with sufficient precision and objectivity (judgments of 13 November 2018, Levola Hengelo, C‑310/17, EU:C:2018:899, paragraph 40, and of 12 September 2019, Cofemel, C‑683/17, EU:C:2019:721, paragraph 32).

22It follows that, where subject matter has the characteristics described in paragraph 19 of the present judgment and therefore constitutes a work, it must, as such, qualify for copyright protection, in accordance with that directive (judgments of 12 September 2019, Cofemel, C‑683/17, EU:C:2019:721, paragraph 35, and of 24 October 2024, Kwantum Nederland and Kwantum België, C‑227/23, EU:C:2024:914, paragraph 49).

23Furthermore, it should be recalled that, although the European Union is not a party to the Berne Convention, it is nevertheless obliged, under Article 1(4) of the WIPO Copyright Treaty, to comply, inter alia, with Article 2(1) of that convention. According to the wording of the latter provision, literary and artistic works are to include every production in the literary, scientific and artistic domain, whatever the mode or form of its expression may be, such as books, pamphlets and ‘other writings’ (see, to that effect, judgment of 13 November 2018, Levola Hengelo, C‑310/17, EU:C:2018:899, paragraphs 38 and 39 and the case-law cited).

24Given the particularly broad drafting of that provision, it cannot, therefore, be ruled out that a text posted on a social network in which the author expresses his or her opinion on social practices regarded as being inappropriate constitutes the author’s own intellectual creation and, therefore, classifies as a ‘work’ within the meaning of Directive 2001/29.

25In those circumstances, for the purposes of classifying a text as a ‘work’ within the meaning of Directive 2001/29, factors such as its length, the fact that it was posted online and the issue of whether it belongs to a predetermined literary genre are irrelevant, unless those factors are the result of rules, technical considerations or constraints which have left no room for creative freedom on the part of its author. In the latter case, that text cannot be regarded as having the originality necessary to constitute a work (see, to that effect, judgment of 12 September 2019, Cofemel, C‑683/17, EU:C:2019:721, paragraph 31).

26In order to determine whether a text or certain elements thereof may be regarded as ‘works’ within the meaning of Article 2(a) of Directive 2001/29, and, consequently, may be protected by copyright, it is for the national court to ascertain whether, in drafting that text, the author was able to make free and creative choices capable of conveying to the reader the originality of the subject matter at issue, with such originality arising from the choice, sequence and combination of the words by which the author expressed his or her creativity in an original manner and achieved a result which is an intellectual creation (see, to that effect, judgments of 16 July 2009, Infopaq International, C‑5/08, EU:C:2009:465, paragraphs 45 to 48, and of 29 July 2019, Funke Medien NRW, C‑469/17, EU:C:2019:623, paragraphs 22 and 23).

27In the present case, subject to the assessment which it is for the national court to carry out, it appears, in the light of the information provided by the referring court, that, in drafting the text at issue in the main proceedings, CY made free and creative choices, which were given concrete expression in an identifiable subject matter with sufficient precision and objectivity.

28In the light of the foregoing considerations, the answer to the first question is that Article 2(a) of Directive 2001/29 must be interpreted as meaning that a text posted on a social network and expressing an opinion on social practices regarded as inappropriate does come within the concept of a ‘work’ within the meaning of that provision, provided that that text constitutes the expression of an intellectual creation reflecting the personality of its author.

The second question

Admissibility

29CY argues that the second question referred for a preliminary ruling must be rejected as inadmissible since it was not raised before the referring court and is therefore hypothetical.

30In that regard, the Court notes that, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may however refuse to rule on a question referred for a preliminary ruling from a national court where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose. The same applies where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgments of 15 December 1995, Bosman, C‑415/93, EU:C:1995:463, paragraphs 59 and 61, and of 12 October 2010, Rosenbladt, C‑45/09, EU:C:2010:601, paragraph 33 and the case-law cited).

31In the present case, the referring court is uncertain whether the potential copyright protection of CY’s text may be limited by the exception provided for in the second case under Article 5(3)(c) of Directive 2001/29, which may be applicable to the facts at issue in the main proceedings.

32In those circumstances, the interpretation sought by the referring court does relate to the facts and the subject matter of the dispute in the main proceedings. It is therefore not obvious that the question referred by the referring court is hypothetical. It follows that the second question referred for a preliminary ruling is admissible.

Substance

33By its second question, the referring court asks, in essence, whether the second case under Article 5(3)(c) of Directive 2001/29 must be interpreted as precluding national legislation that restricts the exception or limitation referred to in that provision to the use of short extracts of a protected work and which prohibits the deriving of any direct or indirect commercial or financial benefit from that use.

34In order to answer the second question, it is necessary, in the first place, to examine whether the use by an online newspaper of the text posted by a teacher, at the beginning of the school year, on a social network expressing an opinion on social practices regarded as inappropriate in a school setting may constitute the reporting of a current event within the meaning of that provision.

35Under that provision, Member States are permitted to provide for exceptions or limitations to the exclusive rights of reproduction and of communication to the public in the case of the ‘use of works or other subject matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author’s name, is indicated, unless this turns out to be impossible’.

36In that regard, the Court has held, first, that the action of ‘reporting’, referred to in Article 5(3)(c) of Directive 2001/29, must be understood as that of providing information on a current event, without, however, the user analysing such an event in detail. Second, reporting must relate to a ‘current event’, that is to say, an event that, at the time at which it is reported, is of informatory interest to the public (see, to that effect, judgment of 29 July 2019, Spiegel Online, C‑516/17, EU:C:2019:625, paragraphs 66 and 67).

37In the light of that interpretation, it cannot be ruled out that the use, by an online newspaper, of the text posted by a teacher, at the beginning of the school year, on a social network expressing an opinion on social practices regarded as inappropriate in a school setting, may constitute reporting of a current event within the meaning of Article 5(3)(c) of Directive 2001/29.

38In that regard, first, as the Advocate General observed, in essence, in points 32 and 34 of his Opinion, the functioning of the school system is a subject of information that may be of interest to the public at the time when it is reported. Second, just as the usual meaning of the term ‘reporting’ of an event does not require the user to analyse in detail such an event, that usual meaning does not require that the recipients of that subject of information necessarily be invited to react.

39It is, however, for the national court with jurisdiction to determine, in the circumstances of the case in the main proceedings, whether the text published by CY reports a current event within the meaning of the case-law cited in paragraph 36 of the present judgment.

40As regards, in the second place, the restrictions that may be imposed by a Member State on the exceptions or limitations set out in Article 5(3)(c) of Directive 2001/29, the Court notes, as a preliminary point, that the scope of the Member States’ discretion in the transposition into national law of a particular exception or limitation referred to in Article 5(3) of Directive 2001/29 must be determined on a case-by-case basis, in particular, according to the wording of that provision, the degree of the harmonisation of the exceptions and limitations intended by the EU legislature being based on their impact on the smooth functioning of the internal market (judgment of 29 July 2019, Spiegel Online, C‑516/17, EU:C:2019:625, paragraph 25 and the case-law cited).

41As regards, in particular, Article 5(3)(c) of that directive, it is clear from the Court’s case-law that that provision does not constitute full harmonisation of the scope of the exceptions or limitations which it contains. In the transposition of that provision and its application under national law, the Member States enjoy significant discretion allowing them to strike a balance between the relevant interests (judgments of 29 July 2019, Funke Medien NRW, C‑469/17, EU:C:2019:623, paragraphs 42 and 43, and of 29 July 2019, Spiegel Online, C‑516/17, EU:C:2019:625, paragraphs 27 and 28).

42That said, the Member States’ discretion in the implementation of Article 5(3)(c) of Directive 2001/29 is circumscribed in several regards (judgments of 29 July 2019, Funke Medien NRW, C‑469/17, EU:C:2019:623, paragraph 45, and of 29 July 2019, Spiegel Online, C‑516/17, EU:C:2019:625, paragraph 30).

43First, the Member States’ discretion in the implementation of the abovementioned exceptions and limitations provided for in Article 5(2) and (3) of Directive 2001/29 must be exercised within the limits imposed by EU law, which means that the Member States are not in every case free to determine, in an un-harmonised manner, the parameters governing those exceptions or limitations (judgments of 29 July 2019, Funke Medien NRW, C‑469/17, EU:C:2019:623, paragraph 46, and of 29 July 2019, Spiegel Online, C‑516/17, EU:C:2019:625, paragraph 31).

44In particular, Member States may provide, in their law, for an exception or limitation referred to in Article 5(2) and (3) of Directive 2001/29 only if they comply with all the conditions laid down in that provision. The Member States are also required, in that context, to comply with the general principles of EU law, which include the principle of proportionality, from which it follows that measures which the Member States may adopt must be appropriate for attaining their objective and must not go beyond what is necessary to achieve it (judgments of 29 July 2019, Funke Medien NRW, C‑469/17, EU:C:2019:623, paragraphs 48 and 49, and of 29 July 2019, Spiegel Online, C‑516/17, EU:C:2019:625, paragraphs 33 and 34).

45Second, it is true that the discretion enjoyed by the Member States in implementing the exceptions and limitations provided for in Article 5(2) and (3) of Directive 2001/29 cannot be used so as to compromise the objectives of that directive that consist in establishing a high level of protection for authors and in ensuring the proper functioning of the internal market. Nonetheless, it is also for the Member States, in effecting that implementation, to safeguard the effectiveness of the exceptions and limitations thereby established and to permit observance of their purpose, in order to safeguard a fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject matter (judgments of 29 July 2019, Funke Medien NRW, C‑469/17, EU:C:2019:623, paragraphs 50 and 51, and of 29 July 2019, Spiegel Online, C‑516/17, EU:C:2019:625, paragraphs 35 and 36).

46Third, the Member States’ discretion in the implementation of the exceptions and limitations relevant to Article 5(2) and (3) of Directive 2001/29 is also circumscribed by Article 5(5) of the directive. That article makes those exceptions or limitations subject to three conditions, namely that those exceptions or limitations may be applied only in certain special cases, that they do not conflict with a normal exploitation of the work and that they do not unreasonably prejudice the legitimate interests of the copyright holder (judgments of 29 July 2019, Funke Medien NRW, C‑469/17, EU:C:2019:623, paragraph 52, and of 29 July 2019, Spiegel Online, C‑516/17, EU:C:2019:625, paragraph 37).

47Lastly, fourth, the principles enshrined in the Charter of Fundamental Rights of the European Union apply to the Member States when implementing EU law. It is therefore for the Member States, in transposing the exceptions and limitations referred to Article 5(2) and (3) of Directive 2001/29, to ensure that they rely on an interpretation of the directive which allows a fair balance to be struck between the various fundamental rights protected by the EU legal order (judgments of 29 July 2019, Funke Medien NRW, C‑469/17, EU:C:2019:623, paragraph 53, and of 29 July 2019, Spiegel Online, C‑516/17, EU:C:2019:625, paragraph 38).

48It is in the light of those various factors that it is necessary to examine, first, whether the restriction to the use of short extracts from a protected work, as provided for in national law, is compatible with the exception or limitation referred to in Article 5(3)(c) of Directive 2001/29.

49In that regard, the Court notes, first of all, that the wording of Article 5(3)(c) of Directive 2001/29 does not lay down any formal limit as to the length of the work used to report current events. However, that provision states that the use in question must be made only ‘to the extent justified by the informatory purpose’ and, therefore, in observance of the principle of proportionality. It follows that the use of the protected work must not be extended beyond the confines of what is necessary to achieve the informatory purpose (judgment of 29 July 2019, Spiegel Online, C‑516/17, EU:C:2019:625, paragraph 68).

50Next, in accordance with the case-law referred to in paragraphs 44 and 45 of the present judgment, the implementation of the exception provided for in that provision must be proportionate and ensure that the purpose pursued by that exception – namely to contribute to the exercise of the freedom of information and the freedom of the press, guaranteed by Article 11 of the Charter of Fundamental Rights – is safeguarded.

51It should be noted that the rights and freedoms enshrined in that provision are not absolute rights, but must be considered in relation to their function in society. That provision constitutes one of the essential foundations of a pluralist, democratic society; interferences with the rights and freedoms must therefore be limited to what is strictly necessary (see, to that effect, judgment of 4 October 2024, Real Madrid Club de Fútbol, C‑633/22, EU:C:2024:843, paragraphs 47 and 49 and the case-law cited).

52In that regard, the Court adds that the exercise of freedom of information and freedom of the press does not in all cases require the publication of works in their entirety. Restricting the authorised use to extracts of sufficient length to achieve that objective does not compromise the effectiveness of the exception while ensuring the protection of copyright holders.

53Nevertheless, the framework of the exception referred to in Article 5(3)(c) of Directive 2001/29 must comply with the threefold condition laid down in Article 5(5) of that directive, referred to in paragraph 46 of the present judgment. Except in the case of a very short text where the use of extracts proves impossible, the reproduction in full of a work may, as explained by the Advocate General in point 43 of his Opinion, conflict with a normal exploitation of that work and unreasonably prejudice the legitimate interests of its author. Such a reproduction of the work replaces the original communication of that work, which exempts the recipients from consulting that communication thereby conflicting with the normal exploitation of that work by its author.

54It follows from the foregoing considerations that Article 5(3)(c) of Directive 2001/29 must be interpreted as not precluding a Member State from restricting the use of a work to short extracts if that Member State takes the view that the informatory purpose pursued by that provision does not justify more of that work being used, provided that that restriction is proportionate, safeguards the effectiveness of the exception provided for in Article 5(3)(c) of Directive 2001/29 and permits observance of its purpose.

55On the other hand, as regards, second, the prohibition, worded in general terms, on the deriving of a commercial or financial benefit, whether direct or indirect, from the use of a work to report current events, the Court holds that that restriction has no basis in the wording of Article 5(3)(c) of Directive 2001/29. The words ‘to the extent justified by the informatory purpose’ relate only to the extent of the use of the protected works.

56Furthermore, as the Advocate General pointed out in points 53 and 54 of his Opinion, while they have a fundamental role in a democratic society consisting of informing the public and scrutinising public figures, media outlets generally also pursue an economic activity that is necessary for them to operate. In those circumstances, the prohibition on deriving a financial or commercial benefit, whether direct or indirect, from the use of a work in order to report current events undermines the effectiveness of the exception or limitation referred to in the second case under Article 5(3)(c) of Directive 2001/29. Such a prohibition, which is not otherwise defined or circumscribed, also upsets the balance between the various fundamental rights which the exception referred to in that provision seeks to reconcile, in particular, on the one hand, intellectual property enshrined in Article 17 of the Charter of Fundamental Rights and, on the other, freedom of expression and freedom of the press, protected in Article 11 thereof.

57In the light of the foregoing considerations, the answer to the second question is that the second case under Article 5(3)(c) of Directive 2001/29 must be interpreted as not precluding national legislation that restricts the exception or limitation referred to in that provision to the use of short extracts of a protected work but must be interpreted as precluding a prohibition on deriving a direct or indirect commercial or financial benefit from that use.

Costs

58Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Second Chamber) hereby rules:

1.Article 2(a) 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 societymust be interpreted as meaning that a text posted on a social network and expressing an opinion on social practices regarded as inappropriate does come within the concept of a ‘work’ within the meaning of that provision, provided that that text constitutes the expression of an intellectual creation reflecting the personality of its author.

2.The second case under Article 5(3)(c) of Directive 2001/29must be interpreted as not precluding national legislation that restricts the exception or limitation referred to in that provision to the use of short extracts of a protected work but must be interpreted as precluding a prohibition on deriving a direct or indirect commercial or financial benefit from that use.