The First Civil Senate of the Federal Court of Justice (BGH), which is responsible for copyright law among other things, has ruled on the admissibility of the use of so-called abstracts.
The defendant operates a cultural magazine on the website "perlentaucher.de". There it has also posted summaries (abstracts) of book reviews from various renowned newspapers. These include book reviews from the "Frankfurter Allgemeine Zeitung" and the "Süddeutsche Zeitung", which the defendant reproduces in a clearly abbreviated form under the headings "Notiz zur FAZ" and "Notiz zur SZ". The abstracts are written by employees of the defendant and contain particularly meaningful passages from the original reviews, most of which are marked by inverted commas. The defendant has granted the internet bookshops "amazon.de" and "buecher.de" licences to reprint these abstracts.
The plaintiffs - in one lawsuit the "Frankfurter Allgemeine Zeitung", in another lawsuit the "Süddeutsche Zeitung" - regard this exploitation of the abstracts by licensing them to third parties as an infringement of the copyright to the original reviews as well as an infringement of trademark rights and a violation of competition law. They are claiming injunctive relief against the defendant, the provision of information and a declaration of its liability for damages.
The Regional Court and the Court of Appeal dismissed the claims. In response to the plaintiffs' appeals, the Federal Supreme Court overturned the judgments of the courts of appeal and referred the cases back to the court of appeal.
The Federal Court of Justice did confirm the opinion of the Court of Appeal that the permissibility of exploitation of the abstracts under copyright law depends solely on whether the abstracts are independent works created in free use of the original reviews and may therefore be exploited without the consent of the authors of the works used pursuant to Section 24 (1) UrhG. In the view of the BGH, however, the Court of Appeal did not apply the correct legal standards in its examination of whether the abstracts complained of by the plaintiff fulfilled this requirement and, moreover, did not take into account all relevant factual circumstances.
The Court of Appeal must now re-examine whether the impugned abstracts are independent works within the meaning of Section 24(1) UrhG. According to the Federal Court of Justice, this assessment may lead to different results for the different abstracts, as this question cannot be answered in general terms, but only on the basis of an assessment of the individual case. The assessment must take into account that, as a rule, only the linguistic design and not the intellectual content of a book review enjoys copyright protection. It is generally permissible under copyright law to summarise the content of a written work in one's own words and to exploit this summary. Therefore, it is of particular importance to what extent the abstracts have adopted original formulations of the original reviews.
Judgment of the Federal Supreme Court of 1 December 2010 - I ZR 12/08 - Perlentaucher
Lower courts:
LG Frankfurt am Main - Judgment of 23 November 2006 - 2/3 O 172/06, ZUM 2007, 65
OLG Frankfurt am Main - Judgment of 11 December 2007 - 11 U 75/06, NJW 2008, 770
and
Judgment of the BGH of 1 December 2010 - I ZR 13/08
Lower courts:
Frankfurt am Main Regional Court - Judgment of 23 November 2006 - 2/3 O 171/06
OLG Frankfurt am Main - Judgment of 11 December 2007 - 11 U 76/06, GRUR 2008, 249
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
