The First Civil Senate of the Federal Court of Justice, which is responsible inter alia for copyright law, today referred questions to the Court of Justice of the European Union on the obligation to pay remuneration for printers and PCs under copyright law for a preliminary ruling.
Under the law applicable until the end of 2007 and still applicable in the cases to be decided, the author of a work had a claim to remuneration against the manufacturer, importer and dealer of devices if these devices are intended to reproduce such a work "by copying a work or by a process of comparable effect" (Section 54a (1) sentence 1 UrhG old). This remuneration claim is intended to compensate the author for the fact that reproductions of his work for his own use are permissible under certain conditions even without his consent.
The plaintiff is the VG Wort. It exercises the copyright powers of word authors and publishers. The defendants distribute printers and PCs in Germany, which they manufacture themselves or import. The plaintiff is claiming remuneration for these devices from the various defendants in four different proceedings. The Stuttgart Higher Regional Court and the Munich Higher Regional Court largely upheld the claims brought there. The BGH overturned these judgements and dismissed the action. In two further cases, the Düsseldorf Higher Regional Court dismissed the claims brought there. The Federal Supreme Court dismissed the appeal against these judgements. The Federal Constitutional Court overturned all decisions of the Federal Supreme Court and referred the cases back to the Federal Supreme Court. The Federal Court of Justice has now stayed the proceedings and referred some questions to the Court of Justice of the European Union for a preliminary ruling on the interpretation of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.
According to the Federal Court of Justice, the first question to be answered is whether reproductions by means of printers and PCs are such reproductions "by means of any photomechanical process or other process having a similar effect" within the meaning of Article 5(2)(a) of the Directive, in view of the fact that according to Section 54a(1) sentence 1 UrhG old a remuneration obligation only exists for devices intended to reproduce a work "by copying a work or by a process having a similar effect". According to the Federal Court of Justice, the answer to this question should depend on the chain of devices within which printers and PCs are used to make reproductions. With a chain of devices consisting of scanner, PC and printer, reproductions can be made as with a conventional photocopier. This is not the case with a functional unit consisting only of a PC and a printer, because only digital originals can be reproduced.
In the event that this question is to be answered in the affirmative, the BGH referred the question to the ECJ as to whether the Directive's requirements for fair compensation for exceptions or limitations in relation to the reproduction right (Art. 5(2) and (3) of the Directive) can also be met, taking into account the fundamental right to equal treatment (Art. 20 of the EU Charter of Fundamental Rights) can also be fulfilled if it is not the manufacturers, importers and distributors of the printers or PCs, but the manufacturers, importers and distributors of another device or several other devices of a device chain suitable for making corresponding reproductions, who have to finance the fair compensation of the rightholders. The Federal Court of Justice has so far taken the view that, in principle, only that device of such a functional unit is liable to remuneration under Section 54a (1) UrhG which is most clearly intended to be used together with the other devices as a reproduction device; in the functional unit consisting of scanner, PC and printer, this is the scanner.
Insofar as printers and PCs should basically belong to the copying devices subject to remuneration, in the opinion of the Federal Court of Justice further questions on the interpretation of the Directive arise in connection with the assessment of the amount of the remuneration. In particular, the question arises - according to the BGH - whether the Member States must or may provide for fair compensation in favour of the rightholders for restrictions of the reproduction right within the meaning of the Directive even if the rightholders have expressly or impliedly consented to a reproduction of their works.
According to the provision in force since 1 January 2008, which is not yet applicable in the cases at issue, a claim to remuneration exists with respect to all types of devices used to make certain reproductions for one's own use (Section 54 (1) UrhG). Accordingly, the right to remuneration no longer depends on the devices being intended to reproduce a work "by copying a work or by a process of comparable effect".
Order of the Federal Court of Justice of 21 July 2011 - I ZR 162/10 - Drucker und Plotter II
Stuttgart Regional Court - Judgment of 22 December 2004 - 17 O 392/04, CR 2005, 378
OLG Stuttgart - Judgment of 11 May 2005 - 4 U 20/05, GRUR 2005, 943
See also:
BGH, Judgment of 6 December 2007 - I ZR 94/05, BGHZ 174, 359 - Drucker und Plotter I BVerfG, Order of 30 August 2010 - 1 BvR 1631/08, GRUR 2010, 999
and
Order of the Federal Supreme Court of 21 July 2011 - I ZR 30/11 - PC II
LG Munich I - Judgment of 23 December 2004 - 7 O 18484/03, ZUM 2005, 241
OLG Munich - Judgment of 15 December 2005 - 29 U 1913/05, ZUM 2006, 239
See also:
BGH, Judgment of 2 October 2008 - I ZR 18/06, GRUR 2009, 53 - PC I
BVerfG, Order of 21 December 2010 - 1 BvR 506/09, GRUR 2011, 225
and
Decision of the Federal Supreme Court of 21 July 2011 - I ZR 28/11
Düsseldorf Regional Court - Judgment of 25 January 2006 - 12 O 110/05
Düsseldorf Higher Regional Court - Judgment of 23 January 2007 - 20 U 38/06, GRUR 2007, 416
See also:
BGH, Order of 14 August 2008 - I ZR 17/07
BVerfG, Order of 21 December 2010 - 1 BvR 2760/08, GRUR 2011, 223
and
Decision of the Federal Supreme Court of 21 July 2011 - I ZR 29/11
Düsseldorf Regional Court - Judgment of 29 November 2006 - 12 O 8/06
Düsseldorf Higher Regional Court - Judgment of 13 November 2007 - 20 U 186/06, MMR 2008, 100
See also:
BGH, Order of 14 August 2008 - I ZR 208/07
BVerfG, Order of 21 December 2010 - 1 BvR 2742/08, CR 2011, 86
Source: Press release of the BGH
Goldberg Attorneys at Law 2011
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
