"Internet-based" video recorders are generally inadmissible

The First Civil Senate of the Federal Court of Justice (BGH), which is responsible for copyright law, among other things, has ruled that the offering of "internet-based" video recorders can infringe the ancillary copyright to which broadcasters are entitled under the Copyright Act and is generally inadmissible.

The plaintiff broadcasts the television programme "RTL". Since March 2005, the defendant has offered an "internet-based personal video recorder" for recording television programmes on its website under the name "Shift.TV". It receives via satellite antennas the programmes of several television channels, including the applicant's programme. Customers of the defendant can select programmes from these channels. These are then stored on a "personal video recorder". This is a storage space on the defendant's server which is exclusively allocated to the respective customer. The customer can watch the programmes recorded on his "Personal Video Recorder" via the Internet from any place and at any time as often as he likes.

The plaintiff considers the defendant's offer to be, among other things, an infringement of the right to which it is entitled as a broadcasting organisation under Section 87 (1) UrhG to retransmit its radio broadcasts and to record them on audio or video carriers. She claims against the defendant for injunctive relief and - in preparation for an action for damages - for information.

The Regional Court and the Court of Appeal largely upheld the action. In response to the defendant's appeal, the Federal Supreme Court overturned the appeal ruling and referred the case back to the Court of Appeal. Since the Court of Appeal has not yet determined whether the defendant or - in the event that the recording process is fully automated - its customers record the plaintiff's broadcasts on the "personal video recorders", the Federal Court of Justice could not conclusively assess the admissibility of the "personal video recorders" under copyright law.

However, the BGH examined the legal situation for both variants and thus gave important indications for the final decision:

If the defendant stores the programmes on the "personal video recorders" on behalf of its customers, it infringes - according to the Federal Supreme Court - the plaintiff's right to record its programmes on video or audio carriers. Since it did not provide its service free of charge, it could not in this case rely on the right of its customers to record television programmes for private use.

2) If, on the other hand, the recording process was completely automated with the consequence that the respective customer was to be regarded as the producer of the recording, there was, as a rule, a recording for private use which was regarded as permissible by law. However, the defendant then infringed the plaintiff's right to retransmit its radio broadcasts if it forwarded the plaintiff's broadcasts received with the satellite antennas to the "personal video recorders" of several customers. In this case, it interfered with the applicant's right to make its broadcasts available to the public.

The court of appeal will now have to make findings on how the recording process works in detail in order to be able to decide accordingly.

Lower courts:

LG Leipzig - Judgment of 12 May 2006 - 5 O 4391/05, ZUM 2006, 753 = CR 2006, 784

OLG Dresden - Judgment of 28 November 2006 14 U 1071/06, ZUM 2007, 203 = CR 2007, 662

 

Judgment of the Federal Court of Justice of 22 April 2009 - I ZR 216/06 - Internet video recorder

 

Source: BGH press release of 22 April 2009

 

Goldberg Attorneys at Law

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law (IT law)

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