The First Civil Senate of the Federal Court of Justice, which is responsible inter alia for copyright law, has submitted questions to the Court of Justice of the European Union on the balancing of copyright law and the fundamental rights to freedom of information and freedom of the press, as well as on the press's right to quote under copyright law and on the protective barrier of reporting on daily events.
The plaintiff has been a member of the Bundestag since 1994. He is the author of a manuscript in which he opposed the radical demand for a complete abolition of the sexual criminal law, but advocated a partial decriminalisation of non-violent sexual acts of adults with children. The text was published as a book contribution in 1988. In May 1988, the plaintiff complained to the publisher of the book that he had made changes to the headings without his consent and asked him to make this clear when the book was distributed. In the following years, the plaintiff stated in response to critical feedback that the editor had arbitrarily edited out the central statement of his contribution and thus distorted its meaning.
In 2013, the plaintiff's original manuscript was found in an archive and made available to him a few days before the federal election. The plaintiff sent the manuscript to several newspaper editors as proof that it had been changed at the time for the book contribution. He did not agree to the publication of the texts by the editorial offices. However, he posted the manuscript and the book article on his website, stating that he dissociated himself from the article. He agreed to a linking of his website by the press.
Before the federal election, the defendant published a press report on its internet portal in which the author expressed the view that the plaintiff had hoodwinked the public for years. The original documents proved that the manuscript was almost identical to the book article and that the plaintiff's central statement had in no way been distorted in meaning. Internet users could download the manuscript and the book article via an electronic reference (link). The plaintiff's website was not linked.
The plaintiff considers the publication of the texts to be an infringement of his copyright. He has filed a claim against the defendant for injunctive relief and damages.
Process history so far:
The district court upheld the action. The defendant's appeal was unsuccessful. The Higher Regional Court held that the publication of the plaintiff's copyrighted texts without his consent was not justified, even taking into account the defendant's freedom of opinion and freedom of the press, either from the point of view of reporting on daily events (§ 50 UrhG*) or by the statutory right to quote (§ 51 UrhG**). With its appeal, which was allowed by the Federal Court of Justice, the defendant continued to pursue its motion to dismiss.
Referral of the Federal Court of Justice to the European Court of Justice:
The Federal Court of Justice stayed the proceedings and referred questions to the Court of Justice of the European Union on the interpretation 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.
On the one hand, the questions that the Senate has already made the subject of a submission order in the case "Afghanistan Papers" are relevant to the dispute (BGH, order of 1 June 2017 - I ZR 139/15, cf. press release no. 87/2017 of 1 June 2017). Furthermore, the order for reference includes questions on the prerequisites of the protective barriers of reporting on daily events and the right to quote.
For example, the Federal Court of Justice referred the question to the ECJ as to whether the making available to the public of works protected by copyright on the internet portal of a press company could not be regarded as reporting on daily events without a licence pursuant to Art. 5 para. 3 letter c case 2 of Directive 2001/29/EC because it was possible for the press company to obtain the author's consent before making the works available to the public. c case 2 of Directive 2001/29/EC because it was possible and reasonable for the press company to obtain the author's consent before making the works publicly available.
In the view of the Federal Court of Justice, the dispute also raises the question of whether there is a lack of publication for the purpose of quotation pursuant to Article 5(3)(d) of Directive 2001/29/EC if quoted text works or parts thereof are not - for example by means of indentations or footnotes - inseparably integrated into the new text, but are made publicly accessible on the internet by way of linking as independently retrievable PDF files and become perceptible independently of the defendant's reporting.
The Federal Court of Justice also referred the question to the ECJ as to when works were lawfully made available to the public within the meaning of Article 5(3)(d) of Directive 2001/29/EC and whether it should be taken into account that the works in their concrete form had already been published previously with the consent of the author. This is questionable in the present case because the plaintiff's book contribution appeared in the anthology in an amended version and the plaintiff's manuscript was published on his website with the dissociation notes.
Decision of the BGH of 27 July 2017 - I ZR 228/15 - Reformistischer Aufbruch
Lower courts:
Berlin Regional Court - Judgment of 17 June 2014 - 15 O 546/13
Berlin Appellate Court - Judgment of 7 October 2015 - 24 U 124/14
Source: Press release of the Federal Supreme Court of 27.07.2017
GoldbergUllrich Attorneys at Law 2017
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
