The First Civil Senate of the Federal Court of Justice, which is responsible among other things for copyright law, has ruled that the publication of book articles by a member of the Bundestag on an internet news portal was permissible.
Facts:
The plaintiff was a member of the Bundestag from 1994 to 2016. 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 for a partial decriminalisation of non-violent sexual acts of adults with children. The text appeared in 1988 as an article in a book. In May 1988, the plaintiff complained to the publisher of the book that the latter had made changes to the text and the headings without his consent, and asked him to make this clear when the book was distributed. In the following years, the plaintiff was confronted critically with the statements of the book contribution several times. He then repeatedly stated that the editor had distorted the meaning of his manuscript because he had edited out the central statement - the rejection of the widespread demand at the time for the abolition of sexual criminal law. Since 1993 at the latest, the plaintiff had completely distanced himself from the content of his essay.
In 2013, the plaintiff's original manuscript was found in an archive and made available to him a few days before the Bundestag elections, for which he was running as a member of parliament. 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. Instead, 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 Court of Appeal 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). In its appeal, the defendant continues to pursue its motion to dismiss.
By order of 27 July 2017, 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 on the harmonisation of certain aspects of copyright and related rights in the information society (I ZR 228/15, GRUR 2017, 1027 - Reformistischer Aufbruch I; related press release No. 124/2017 of 27 July 2017). The Court of Justice of the European Union answered these questions in its judgment of 29 July 2019 (C-516/17, GRUR 2019, 940 - Spiegel Online). The Federal Court of Justice then continued the appeal proceedings.
The decision of the Federal Supreme Court:
The Federal Court of Justice overturned the appeal judgement and dismissed the action. The defendant did not unlawfully infringe the plaintiff's copyright by making the manuscript and the book article available on its internet portal. On the contrary, the protective limitation of the reporting of daily events (Section 50 UrhG) applied in its favour.
There was reporting on a daily event within the meaning of this provision. In its deviating assumption, the Court of Appeal did not sufficiently take into account that the article in question focused on the plaintiff's current confrontation with his manuscript, which had been found again during research, and his reaction to it. These are events which were current when the article was posted on the defendant's internet portal and which were of current public interest with regard to the credibility of the plaintiff, who was again running for election as a member of the Bundestag. The fact that the article went beyond the foreground of this event to provide information on the previous history and background to the plaintiff's position, which had already lasted for years, did not preclude the assumption that the article was reporting on current events.
Moreover, the reporting did not exceed the scope required by the purpose. According to the provision of Art. 5 para. 3 lit. c case 2 of Directive 2001/29/EC, the implementation of which is served by Section 50 UrhG and which must be observed in the required interpretation in conformity with Union law, the use of the work in question may only take place if the reporting of daily events is proportionate, i.e. in view of the purpose of the exception for protection, respect for the fundamental freedoms of the right to freedom of expression and freedom of the press, it complies with the requirements of appropriateness, necessity and reasonableness (proportionality in the narrower sense).
According to the case-law of the Federal Constitutional Court, the question as to whether the fundamental rights of the Basic Law or the fundamental rights of the Charter of Fundamental Rights of the European Union are decisive in the interpretation and application of domestic law determined by Union law depends in principle on whether this law is completely unified under Union law (then, as a rule, not the fundamental rights of the Basic Law, but only the fundamental rights of the Union are decisive) or whether this law is not completely determined under Union law (then the standard of the fundamental rights of the Basic Law applies primarily). In the latter case, the presumption applies that the level of protection of the Charter of Fundamental Rights of the European Union is also guaranteed by the application of the fundamental rights of the Basic Law (see BVerfG, Order of 6 November 2019 - 1 BvR 16/13, GRUR 2020, 74 marginal no. 71 - Right to be Forgotten I). Since, according to the case-law of the Court of Justice of the European Union, Art. 5 para. 3 lit. c case 2 of Directive 2001/29/EC is to be interpreted as not constituting a measure to fully harmonise the scope of the exceptions or limitations listed therein, the proportionality test for the application of Section 50 UrhG must accordingly be carried out on the basis of the standard of the fundamental rights of the German Basic Law.
In the case in dispute, according to these standards, the exclusive right of the plaintiff to make his works available to the public, to which he is entitled as an author and which is protected by Article 14.1 of the Basic Law, must be taken into account in the interpretation and application of the exploitation rights and the provisions on limitations. In addition, the interest protected by his moral right to permit public access to his work only with the simultaneous reference to his changed political convictions is affected. In the defendant's favour, on the other hand, the fundamental rights of freedom of opinion and freedom of the press under Article 5.1 sentence 1 and 2 of the Basic Law are in dispute. The weighing of these fundamental rights affected in the dispute leads to a priority of the freedom of opinion and freedom of the press. The Court of Appeal rightly assumed that the defendant had the task, within the framework of its constitutionally guaranteed freedom of opinion and freedom of the press, to critically deal with the plaintiff's public allegations and, by making the manuscript and the book contribution available, to enable the public to form its own opinion of the alleged falsification of the content of the essay and thus of the plaintiff's alleged dishonesty. In doing so, the Court of Appeal correctly assumed that the public's interest in information, as perceived by the defendant, was of great importance. With regard to the plaintiff's interests, it must be taken into account that his exclusive right to make the manuscript and the book contribution publicly available, which is protected by Article 14.1 of the Basic Law, is only insignificantly affected because, according to the findings of the Court of Appeal, no further commercial exploitation of the essay is to be expected. His interest in determining whether and how his work is published, which is subject to the moral right of the author, does not acquire any decisive weight in the context of the weighing of fundamental rights. In the report challenged in the action, the defendant did not conceal from its readers the plaintiff's opinion on the punishability of sexual abuse of minors, which had changed over the years, but also made it the subject of the report. It thus did not make the text in question available to the public without a distancing reference clarifying the plaintiff's changed intellectual-personal relationship to his work and took sufficient account of his interest in copyright personality.
Lower courts:
LG Berlin - Judgment of 17 June 2014 - 15 O 546/13 Kammergericht - Judgment of 7 October 2015 - 24 U 124/14
