The First Civil Senate of the Federal Court of Justice (BGH), which is responsible for copyright law, among other things, ruled today that no copyright device levy is payable for copying stations.
According to the legal situation applicable until the end of 2007 and still to be applied in the present case, the author of a work has a right to remuneration against the manufacturer, importer, and dealer of devices if these devices are intended to reproduce such a work "by photocopying a workpiece or by a process of comparable effect" (§ 54a para. 1 sentence 1 German Copyright Act (UrhG) old version). This right to remuneration is intended to compensate the author for the fact that, under certain conditions, reproductions of their work for personal use are permissible – without their consent and without remuneration.
The plaintiff is the collecting society Verwertungsgesellschaft Wort. It administers the copyright exploitation rights for linguistic works. Numerous linguistic works – including magazines – are transferred to and reproduced in the form of CDs, CD-ROMs, or DVDs. The defendant distributes devices, referred to as copying stations, which can copy data from CDs, CD-ROMs, or DVDs without the use of a PC. These devices feature one drive for the original and up to fourteen burner drives for blank media and the production of copies.
The plaintiff demanded information from the defendant and sought a declaration that the defendant must pay her a remuneration of €1,227.10 for each device. The appellate court partially granted the claim for information and ruled that the defendant must pay the plaintiff an amount of €8 per burner drive for devices with up to six burner drives and €56 per burner drive for devices with seven or more burner drives.
Both parties filed an appeal against this decision. The defendant's appeal was successful. The Federal Court of Justice overturned the appellate judgment and dismissed the action.
The Federal Court of Justice ruled that there is no obligation to pay remuneration for copying stations under § 54a para. 1 sentence 1 German Copyright Act (UrhG) old version, because these devices are not suitable for making reproductions by photocopying a workpiece or by a process of comparable effect within the meaning of this provision. Copying stations cannot produce photocopies of a workpiece, i.e., photomechanical reproductions. The reproduction of (digital) CDs, CD-ROMs, and DVDs possible with such devices does not occur through a process of comparable effect. This is because, as the Federal Court of Justice has already ruled (BGH, judgment of 6.12.2007 – I ZR 94/05, GRUR 2008, 245 para. 16 et seq. – printers and plotters), it only refers to processes for reproducing (analog) printed works. According to the Federal Court of Justice, an analogous application of this regulation is precluded by the fact that copying stations, which are acquired and used almost exclusively by companies for commercial purposes due to their high purchase price, are used significantly less frequently than photocopiers covered by the regulation for reproductions for personal use explicitly permitted by law. In this respect, there is no reason to grant the author a right to remuneration that is merely intended to compensate for reproductions permissible under a statutory license. Furthermore, it would not be justified to extend the scope of the regulation beyond its literal wording to copying stations, because otherwise, manufacturers, importers, and dealers, and ultimately purchasers, would bear the economic burden of copyright remuneration for devices that are used for copyright-relevant reproductions to a significantly lesser extent compared to the devices covered by the statutory regulation.
According to the new regulation, effective since January 1, 2008 – and not applicable in the present case – a right to remuneration exists for all types of devices used for making certain reproductions for personal use (§ 54 para. 1 UrhG). The right to remuneration is therefore no longer dependent on the devices being intended to reproduce a work "by photocopying a workpiece or by a process of comparable effect." In this respect, the legal situation has thus changed.
In this context, the Federal Court of Justice will address the question of remuneration obligations for PCs (I ZR 18/06) on October 2, 2008. Goldberg Rechtsanwälte will also inform you about the outcome of these proceedings.
Judgments:Federal Court of Justice (BGH) – Judgment of July 17, 2008 – I ZR 206/05 – Copying Stations; Munich I Regional Court (LG München I) – Judgment of January 26, 2005 – 21 O 11845/04; Munich Higher Regional Court (OLG München) – Judgment of October 27, 2005 – 29 U 2151/05, cf. GRUR-RR 2006, 126 = ZUM 2006, 60 = MMR 2005, 847
Source: Press Release No. 137/2008 from the BGH Press Office dated July 17, 2008, Herrenstr. 45 a, 76133 Karlsruhe, Tel. 0721-159-5013, Fax. 0721-159-5501, Email pressestelle@bgh.bund.de.
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law); Email: m.ullrich@goldberg.de
