In two judgments of 1 November 2011, the Higher Regional Court of Frankfurt am Main (OLG) again ruled on the question under which conditions the condensed reproduction of third-party book reviews is permissible.
The plaintiffs publish well-known daily newspapers in which book reviews are also published. The defendant presents new publications on the book market on its website "perlentaucher.de" and makes recommendations. In doing so, it also publishes book reviews from the newspapers published by the plaintiffs in a condensed version. These so-called "abstracts" are formulated by the defendant's staff but contain individual quotations and passages from the original reviews.
The plaintiffs consider this to be inadmissible and have demanded a general ban on such abstracts in the main action, alternatively the prohibition of abstracts with original quotations as well as certain specific abstracts. According to the plaintiffs, the abstracts violate their copyrights because of the extent to which formulations from the original reviews are taken over.
The Frankfurt am Main Regional Court (Landgericht), which had jurisdiction at first instance, had dismissed the claims. The appeals filed against this decision were also unsuccessful. The Higher Regional Court (OLG) initially dismissed the appeals in their entirety in December 2007 (cf. OLG press release of 11 December 2007).
On appeal, the Federal Court of Justice (BGH) confirmed that the plaintiffs could not demand a general ban on the use of their book reviews. It was generally permissible under copyright law to summarise the content of a written work in one's own words and to exploit these summaries. However, in contrast to the previous instances, the BGH took the view that the adoption of the reviews in the specific individual case could infringe the plaintiffs' copyrights. The BGH therefore partially overturned the appeal judgements and instructed the OLG to examine whether the dissemination of individual concrete abstracts by the defendant infringed the plaintiffs' copyright.
In the current appeal rulings, the OLG now comes to the conclusion that certain Perlentaucher reviews, which had appeared in December 2004 and are specifically named by the plaintiffs, did indeed infringe their copyright. These abstracts consisted more or less of an adoption of particularly formative and expressive passages of the original reviews, from which only a few sentences had been omitted. They therefore constituted an impermissible "unfree" adaptation within the meaning of the Copyright Act and should not have been taken over without the plaintiffs' consent. To this - limited - extent, the Higher Regional Court therefore allowed the appeals and altered the previous judgements of the Regional Court.
The defendant's conviction does not allow a general statement on the extent to which the adoption of book reviews is permissible under copyright law. Rather, each transfer or processing must be examined on a case-by-case basis to determine whether it constitutes a permissible free adaptation of the original text.
The decisions are not yet legally binding (as of 07.11.11) and will soon be available in full text at http://www.lareda.hessenrecht.hessen.de/.
OLG Frankfurt am Main, judgements of 1.11.2011, file number 11 U 75/06 and 11 U 76/06, (preceded by LG Frankfurt am Main, judgements of 23.11.2006, file number 2-3 O 171+172/06; OLG Frankfurt am Main, judgements of 11.12.2007, file number 11 U 75/06 and 11 U 76/06; BGH, judgements of 1.12.2010, file number I ZR 12+13/08)
Source: Press release of Press office of the Higher Regional Court Frankfurt am Main, Press spokesman: Judge at the Higher Regional Court Frankfurt am Main Ingo Nöhre, Zeil 42, D-60313 Frankfurt am Main
Goldberg Attorneys at Law 2011
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
