The I Civil Senate of the Federal Court of Justice, which is responsible for copyright law, among other things, has ruled that a university may only make parts of a copyrighted work available to participants in a course on an electronic learning platform if these parts account for no more than 12% of the total work and no more than 100 pages and the rights holder has not offered the university an appropriate licence for use.
The plaintiff is Alfred Kröner Verlag. It holds the copyright to the work "Meilensteine der Psychologie" (Milestones of Psychology) published by it. The defendant is the distance learning university in Hagen. It provided more than 4,000 students who had taken the course "Introduction to Psychology and its History" in the Bachelor's degree programme in Psychology with 14 complete articles with a total of 91 pages of the book "Milestones in Psychology", comprising 528 pages of text, on an electronic learning platform as a PDF file for reading, printing and saving. She rejected an offer by the plaintiff to conclude a licence agreement.
The plaintiff is of the opinion that the defendant thereby infringed the copyright in the work. He therefore filed a claim for injunctive relief against the defendant and sought a declaration that the defendant was liable for damages. The defendant argues that it is entitled to the use in question under the limitation provision of Section 52a (1) no. 1 UrhG. According to this provision, it is permissible to make published small parts of a work publicly available for illustration in teaching at universities exclusively for the specifically delimited circle of teaching participants, insofar as this is required for the respective purpose and justified for the pursuit of non-commercial purposes.
The Court of Appeal upheld the action. The defendant could not successfully invoke Section 52a (1) no. 1 UrhG because the contributions posted on the learning platform were not to be regarded as "small" parts of the work "Milestones in Psychology" and also did not serve as illustrations in teaching. The Federal Court of Justice overturned the appeal judgment and referred the case back to the Court of Appeal.
According to the Federal Court of Justice, "small" parts of a work are to be understood as a maximum of 12% of the entire work in accordance with a "Collective Agreement on the Remuneration of Claims under Section 52a UrhG for Making Works Publicly Accessible for the Purposes of Teaching in Schools" concluded between the collecting society Verwertungsgesellschaft Wort and the German Länder, which also concerns linguistic works. In addition, a maximum limit - defined by the Federal Court of Justice as 100 pages - was required because otherwise entire volumes of a multi-volume work could be made publicly accessible without the author's consent. Accordingly, the defendant was in principle allowed to post up to 63 pages of the work "Milestones in Psychology" on the learning platform. According to the Federal Court of Justice, the posting of the contributions also served the purpose of illustration in teaching. Contrary to the Court of Appeal's opinion, the fact that they not only clarified but also supplemented the subject matter did not prevent this. Contrary to the view of the Court of Appeal, the exception under Section 52a (1) no. 1 UrhG did not only allow small parts of a work to be made available for reading on the screen. On the contrary, it also permitted making them accessible if teaching participants were thereby enabled to print out and save the texts. In the view of the Federal Court of Justice, however, making available is not required within the meaning of Section 52a (1) No. 1 UrhG if the right holder has offered the university an appropriate licence for the use in question. The Federal Court of Justice referred the case back to the Court of Appeal, which will now have to examine the appropriateness of the plaintiff's licence offer.
Judgment of the BGH of 28 November 2013 - I ZR 76/12 - Milestones in Psychology
Lower courts:
Stuttgart Regional Court - Judgment of 27 September 2011 - 17 O 671/10,
GRUR-RR 2011, 419
OLG Stuttgart - Judgment of 4 April 2012 - 4 U 171/11,
GRUR 2012, 718
Source: Press release of the BGH
Goldberg Attorneys at Law 2013
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
