The First Civil Senate of the Federal Court of Justice (BGH), which is responsible for copyright law among other areas, has ruled that the provision of "internet-based" video recorders can infringe upon the neighboring rights (Leistungsschutzrechte) afforded to broadcasting companies under copyright law and is typically deemed impermissible.
The plaintiff broadcasts the television program "RTL". Since March 2005, the defendant has offered an "internet-based Personal Video Recorder" service for recording television broadcasts via its website, branded "Shift.TV". The defendant receives programs from multiple television channels, including the plaintiff's, through satellite antennas. Customers can select programs from these feeds, which are then stored on a "Personal Video Recorder" – a dedicated storage allocation on the defendant's server exclusively assigned to that customer. This enables the customer to access and view their recorded programs via the internet from any location, at any time, and an unlimited number of times.
The plaintiff views the defendant's offering, among other things, as an infringement of its right as a broadcasting organization, pursuant to Section 87 (1) of the German Copyright Act, to retransmit its broadcasts and to fix them on visual or audio recordings. It seeks an injunction against the defendant and, in preparation for a claim for damages, demands disclosure.
The Regional Court and the Court of Appeals largely granted the claim. Upon the defendant's appeal on points of law, the Federal Court of Justice overturned the appellate judgment and remitted the case to the Court of Appeals. Since the Court of Appeals 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 definitively assess the copyright lawfulness of the "Personal Video Recorders."
However, the Federal Court of Justice examined the legal situation for both scenarios, thereby providing important guidance for the final decision:
1. If the defendant records the broadcasts on the "Personal Video Recorders" on behalf of its customers, it infringes – according to the Federal Court of Justice – the plaintiff's right to fix its broadcasts on visual or audio recordings. Since it does not provide its service free of charge, it cannot, in this case, rely on its customers' right to record television broadcasts for private use.
2. If, however, the recording process is fully automated, with the consequence that the respective customer is to be regarded as the producer of the recording, this would generally constitute a recording for private use deemed permissible by law. Nevertheless, the defendant would then infringe the plaintiff's right to retransmit its broadcasts if it forwards the plaintiff's broadcasts, received via satellite antennas, to the "Personal Video Recorders" of several customers. This is because, in this case, it interferes with the plaintiff's right to make its broadcasts available to the public.
The Court of Appeals will now have to make findings on the detailed execution of the recording process in order to render a corresponding decision.
Lower Courts:
Regional Court Leipzig – Judgment of May 12, 2006 – 5 O 4391/05, ZUM 2006, 753 = CR 2006, 784
Higher Regional Court Dresden – Judgment of november 28, 2006 14 U 1071/06, ZUM 2007, 203 = CR 2007, 662
Judgment of the Federal Court of Justice of April 22, 2009 – I ZR 216/06 – Internet Video Recorder
Source: Press release of the Federal Court of Justice of April 22, 2009
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
