German courts make two (very important) copyright references to the CJEU

Eleonora Rosati writing on the IPKat

This morning the Bundesgerichtshof (BGH, the German Federal Court of Justice) has referred not one - but two - copyright cases to the Court of Justice of the European Union (CJEU) for guidance, respectively, on:

• To what extent EU copyright allows sampling, ie the taking of part of a sound recording for re-use as an instrument or sound recording in a different song or piece [readers with an interest in hip-hop will know that sampling in this genre is very frequent and in the US has caused quite a few IP-related headaches to the likes of Kanye West and Jay Z]; and
• What role fundamental rights play in the copyright sphere. More specifically, what is the relationship between copyright protection, freedom of the press, and freedom of information?

WARNING: I do not speak German, and have tried to make a sense of these new cases by reading the relevant press releases; please let me know if I have misunderstood anything.

Sampling, free use, a 'right' to quote, and fundamental rights

The first reference (I ZR 115/16 - Metal auf metal III) has been made in the context the longstanding and complex [at some point the case even ended up in front of the German Constitutional Court] Metall auf Metall litigation concerning the unauthorised sampling by music producer Moses Pelham of a 2-second rhythmic sequence from Kraftwerk's 1977 song 'Metall auf Metall' for use in his own 1997 'Nur Mir'. The sample features in 'Nur Mir' (performed by Sabrina Setlur) as a continuous background loop.

Following a number of lower courts' decisions [the first one was issued in 2004], as well as the already mentioned instalment before the Constitutional Court, the case is now pending before the BGH.

Today, this court decided to stay the proceedings and seek guidance from the CJEU on the correct interpretation of EU law. More specifically - and as explained in the relevant press release - the BGH is asking:

• Guidance on the notion of reproduction in part in relation to phonograms as per Article 2(c) of the InfoSoc Directive [readers will recall that the CJEU has already interpreted generously the notion of 'reproduction in part' in its seminal decision in Infopaq] in order to determine whether a 2-second sample may fall within the scope of the right of reproduction; and 
• whether a phonogram sampling an earlier phonogram is a copy of it within the meaning of Article 9(1)(b) of the Rental and Lending Rights Directive.

Moses Pelham

Should the answer be in the affirmative, then the BGH is asking:

• Whether the widely discussed German 'free use' exception within Section 24(1) of the German Copyright Act ("An independent work, created in the free use of the work of another person, may be published and exploited without the consent of the author of the work used.") is compatible with EU law; 
• Should the defendants be unable to rely on the 'free use' exception, whether the quotation exception within Article 5(3)(d) of the InfoSoc Directive might nonetheless shield them from liability [readers with an interest in this defence will be aware that there is hardly an EU quotation exception, as different Member States have transposed Article 5(3)(d) in very different ways: see for instance this discussion of whether GIFs could be regarded as quotations]. In particular, the defendants in the national proceedings are arguing that quotation is a 'right', rather than just an exception. Although I am only relying on the press release, I suspect that the defendants' argument might be also based on the language of Article 10(1) of the Berne Convention, which - especially in its French version - seems to suggest a mandatory quotation exception [see further here, pp 19 ff];
• What role the rights granted by the Charter of Fundamental Rights of the European Union plays: in particular, what is the relationship between copyright protection (Article 17(2)) and freedom of the arts (Article 13)? 

Can freedom of the press and freedom of information trump copyright protection?

The second reference (I ZR 139/15 - Afghanistan Papiere) has been made in the context of litigation between the German Government and German newspaper WAZ over the unauthorised publication by the latter of the so called 'Afghanistan Papers', ie confidential military reports on the operations of the Germany armed forces in the region in the period 2005-2012.

According to the relevant press release, the BGH has stayed the proceedings and asked the CJEU to clarify whether and to what extent the assessment of prima facie copyright infringement and the applicability of the exceptions in favour of the press (Article 5(3)(c) of the InfoSoc Directive) and for quotation (Article 5(3)(d) of the same directive) is informed by a fundamental rights analysis. 

In particular, can copyright protection bet trumped by the need to safeguard freedom of the press and freedom of information? Or can fundamental rights be even directly invoked to prevent enforcement of copyright?

There is probably no need to note that this question goes to the very heart of copyright protection, and will revive the longstanding discussion around the scope of protection. 

Posted By Eleonora Rosati to The IPKat on 6/01/2017 02:11:00 pm. Background can be found here: http://www.musiclawupdates.com/?p=5257

Down, Beuys!

In as dispute between the heir of famous German artist Joseph Beuys and a museum (Schloss Moyland), the Regional Court of Dusseldorf (OLG Düsseldorf) held that the museum would have required permission from Beuys/his heir for an exhibition of photographs by Manfred Tischer showing a live performance by Joseph Beuys. The court held that Beuys’ live performance qualified as an artistic work (there’s no fixation requirement under German law) and the photographs constituted an unauthorised adaptation rather than free use. Please read Birgit’s excellent IPKat post (here) for all the details.

OLG Düsseldorf, 30 December 2011 – I 20 U 101/09, press release (in German) here

Pearl Diving At Your Own Risk

Actual Pearls

Cultural Pearl

The Higher Regional Court of Frankfurt am Main (OLG Frankfurt) has been keeping busy of late. It has not only had to deal with the umpteenth instalment of the bunny wars (for those interested in trade mark law and/or chocolate, see Birgit's IPKat post here), but with copyright issues as well. Almost a year ago, I reported on the 'Perlentaucher' ('pearl divers') decision by the Federal Supreme Court (BGH) (see my earlier post here), concerning abstracts of book reviews and whether such abstracts constitute free use of the original review (section 24 German Copyright Act) or an infringement. The BGH reversed and remanded the case to the OLG Frankfurt after giving some general guidance and reminding all concerned about that old copyright favourite, the idea/expression dichotomy.

In a rare press statement (here), the OLG Frankfurt announced that it partly allowed the claimants' appeal (a change of heart, see its 2007 judgment in the same case here). It held that some of the abstracts were indeed infringements in the form of 'unfree' adaptations of the original reviews because they more or less consisted of especially distinctive and expressive passages from the original reviews, only omitting a few sentences.

The court's press office was quick to state that no general conclusions can be drawn from the case, but that the extent to which a book review may be freely copied or adapted is a matter of fact and degree in each individual case. Since that is certainly correct but not very helpful, I shall take a look at the judgment once it becomes available and let you know if it contains any hidden pearls of wisdom...

BGH: Pearl diving in foreign waters

On December 1, this copyright enthusiast's favourite senate within the Bundesgerichtshof, the I. Zivilsenat, handed down its greatly anticipated judgment in the so-called “Perlentaucher” case, which concerns abstracts of book reviews. Sadly, the full version will be another couple of months coming, but the trusty BGH press office has provided us with a, well, abstract of the judgment, here http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=pm&Datum=2010&Sort=3&nr=54209&pos=0&anz=229.

To dive straight in, the claimants are two German newspapers, the Frankfurter Allgemeine Zeitung (FAZ) and the Süddeutsche Zeitung (SZ). They regularly publish book reviews in the feature pages of both their online and (how quaint!) paper editions.

The defendant, Perlentaucher Medien GmbH, runs an online culture magazine at www.perlentaucher.de. “Perlentaucher” is German for “pearl diver(s)” and is believed by me to refer to the defendant's activities of searching for literary gems or "cultural pearls" (right; not to be confused with cultured pearls, left) and presenting them to its avid readers. Among other things, the defendant makes available brief abstracts of book reviews published in the FAZ and SZ. The titles of the abstracts indicate the source of the original review. However, the abstracts often contain verbatim quotes of particularly expressive or significant sections of the original reviews. The defendant has licensed online book sellers amazon.de and buecher.de to make the abstracts in question available on their respective websites as well. FAZ and SZ contest that the defendant's actions, especially granting licences to third parties, constitute copyright infringement.

The BGH's response to those claims basically consists of the most standard of legal answers. Yes, well done, you've all guessed it: “It depends.” Fortunately, it did not completely leave us alone with that enigmatic judgment (enigma machine, right; presiding judge of the I. Zivilsenat, Prof. Dr. Joachim Bornkamm, left), but actually did care to elaborate. The crucial provision in the German Copyright Act (UrhG) is s. 24 (1). According to s. 24 (1) UrhG, an independent work created by free use of the work of another may be published and exploited without the consent of the author of the used work. That means that for instance the original book reviews published in the FAZ and SZ do not infringe the copyright in the books that are being reviewed. The same would seem to be true for a brief abstract of a lengthy book review. For, as the BGH points out, in literally all cases it is merely the linguistic expression and not the intellectual content of a book review that attracts copyright. Copyright generally permits one to summarise the contents of a literary work in one's own words, and to exploit that summary. In order to establish whether the abstracts in question infringed the claimants' copyright, therefore, it is necessary to establish to what extent the abstracts made use of original phrases (original in the copyright sense) from the original reviews.

Since the BGH was not satisfied that the facts had been properly established in the course of the appellate proceedings, the case was remanded to the Higher Regional Court of Frankfurt am Main (the ball is back in their court, so to speak). As there appear to be a number of abstracts with different ratios of quoted material, it will be interesting to see where the court draws the line between free use and infringement, and if the parties then accept that judgment or pay a second visit to the BGH. Watch this space, but better not hold your breath.