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 remuneration is payable for copy stations.
According to the legal situation applicable until the end of 2007 and still to be taken as a basis in the case to be decided, the author of a work has a claim to remuneration against the manufacturer, the importer and the 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 version). This remuneration claim is intended to compensate the author for the fact that, under certain conditions, reproductions of his work for his own use - without his consent and without remuneration - are permissible.
The plaintiff is the collecting society Verwertungsgesellschaft Wort. It administers the rights of use under copyright law in linguistic works. Numerous linguistic works - including periodicals - are transferred to CD, CD-ROM or DVD and reproduced in this form. The defendant sells devices called copy stations with which data can be copied from CDs, CD-ROMs or DVDs without using a PC. These devices have a drive for holding the copy master and up to fourteen burning drives for holding the blanks and making the copies.
The plaintiff demanded information from the defendant and sought a declaration that the defendant had to pay it a remuneration of € 1,227.10 for each device. The Court of Appeal granted the claim for information in part and found that the defendant had to pay the plaintiff an amount of € 8 per burning drive for devices with up to six burning drives and € 56 per burning drive for devices with seven or more burning drives.
Both parties appealed against this decision. The defendant's appeal was successful. The Federal Supreme Court overturned the appeal ruling and dismissed the action.
The Federal Court of Justice ruled that there is no remuneration obligation for copying stations under Section 54a (1) sentence 1 UrhG old because these devices are not suitable for making reproductions by copying a work or by a process of comparable effect within the meaning of this provision. Copying stations cannot be used to make photocopies of a work, i.e. photomechanical reproductions. The reproduction of (digital) CDs, CD-ROMs and DVDs possible with such devices does not take place in a process of comparable effect. This is because - as the Federal Court of Justice has already ruled (BGH, Urt. v. 6.12.2007 - I ZR 94/05, GRUR 2008, 245 para. 16 et seq. - Printers and Plotters) - only processes for the reproduction of (analogue) printed works are to be understood. According to the Federal Court of Justice, a corresponding application of this provision is precluded by the fact that copying stations, which are acquired and used practically exclusively by companies for commercial purposes due to their high purchase price alone, are used only much less frequently than the photocopying machines covered by the provision for the reproductions for personal use expressly permitted by the law. In this respect, there is no reason to grant the author a remuneration claim that is merely intended to compensate for reproductions that are permissible on the basis of a statutory licence. It would also not be justified to extend the scope of application of the provision beyond its wording to copying stations, because otherwise the manufacturers, importers and dealers and ultimately the purchasers would have to bear the economic burden of copyright remuneration for devices which are used for copyright-relevant reproductions only to a significantly lesser extent than the devices covered by the statutory provision.
According to the new provisions in force since 1 January 2008 - which are not applicable in the case at issue - a claim to remuneration exists with respect to all types of devices used to make certain reproductions for personal use (Section 54 (1) UrhG). Accordingly, the right to remuneration is no longer dependent on the devices being intended to reproduce a work "by copying a work or by a process of comparable effect". In this respect, the legal situation has changed.
In this context, the Federal Supreme Court will have to deal with the question of the remuneration obligation of PCs (I ZR 18/06) on 2 October 2008. Goldberg Rechtsanwälte will also inform you about the outcome of these proceedings.
Judgments:Federal Court of Justice (BGH) - Judgment of 17 July 2008 - I ZR 206/05 - Kopierstationen ;Landgericht München I (LG München I) - Judgment of 26 January 2005 - 21 O 11845/04 ;Oberlandesgericht München (OLG München) - Judgment of 27 October 2005 - 29 U 2151/05, cf. GRUR-RR 2006, 126 = ZUM 2006, 60 = MMR 2005, 847
Source: Press release no. 137/2008 of the press office of the Federal Supreme Court of 17 July 2008, Herrenstr. 45 a, 76133 Karlsruhe, Tel. 0721-159-5013, Fax. 0721-159-5501, E-mail pressestelle@bgh.bund.de.
Goldberg Attorneys at Law
Michael Ullrich, LL.M. (Information Law); e-mail: m.ullrich@goldberg.de
