Federal Court of Justice, 01.12.2010, (Ref.: I ZR 12/08)
The question of the copyright permissibility of so-called "abstracts" of copyright-protected works has repeatedly been the subject of legal disputes. One example of this is the legal dispute between the author Joanne K. Rowling and the publisher Verlag an der Ruhr, in which she successfully defended herself against the use of abridged versions of the content of her books in teaching aids.
An abstract is a summary of the content of a work, preferably in one paragraph, but no more than one page. The purpose of the abstract is to represent the whole work for someone who needs a quick overview of the work. It should enable the reader to decide whether the content of the work is relevant to them.
The relationship between the provisions of Sections 23 and 24 UrhG and Section 12 (2) UrhG is particularly relevant in the context of copyright assessment. If unauthorised abstracts are to be regarded as dependent adaptations of the original work within the meaning of Section 23 UrhG, their publication or exploitation requires the consent of the rights holder. If, on the other hand, they are to be regarded as works created in free use of the original work in accordance with Section 24 UrhG, they are outside the scope of copyright protection and are also permitted without the consent of the rights holder.
However, abstracts may also be permissible on the basis of the provision of Section 12 (2) UrhG, according to which the author reserves the right to communicate or describe the content of his work to the public as long as neither the work nor the essential content or a description of the work has been published with his consent. This is because, according to the literature, it follows from this provision by implication that, after publication of the work or its essential content, anyone is authorised to communicate or describe the content of the work to the public.
In the above-mentioned judgement, the BGH had to deal with the question of the extent to which "abstracts" of book reviews in renowned newspapers are relevant under copyright law.
Facts and initial situation
The defendant, operator of the website "perlentaucher.de", published summaries ("abstracts") of book reviews on its cultural magazine, which had originally appeared in renowned newspapers such as the "Frankfurter Allgemeine Zeitung" (FAZ) and the "Süddeutsche Zeitung" (SZ). These abstracts were presented under the headings "Notiz zur FAZ" and "Notiz zur SZ" in a highly abbreviated form. The defendant also granted licences to online bookshops such as "amazon.de" and "buecher.de" to use these abstracts. The plaintiffs, i.e. the two newspapers, saw this as an infringement of their copyright and trade mark rights as well as a breach of competition law. Both the Regional Court and the Court of Appeal dismissed the action.
Decision of the Federal Court of Justice
The Federal Court of Justice (BGH) initially confirmed the fundamental view of the Court of Appeal that the copyright permissibility of the utilisation of the abstracts depends on whether they are independent works that were created in "free use" of the original reviews. According to Section 24 (1) UrhG, this is permitted without the consent of the original authors, provided that free use is given. However, the BGH criticised the way in which the Court of Appeal had assessed this issue. It was criticised that the correct legal standards were not applied and that important factual circumstances were not sufficiently taken into account.
Re-examination by the court of appeal
The BGH ordered the Court of Appeal to carry out a new examination in order to determine whether the abstracts in question should actually be considered independent works within the meaning of copyright law. The BGH emphasised that this assessment must be made individually for each abstract, as the question of free use cannot be answered in general terms, but only through a case-by-case assessment. Depending on the abstract, different results could be achieved.
Importance of language design in copyright law
The BGH also pointed out that, as a rule, only the linguistic form of a book review enjoys copyright protection, but not the intellectual content. It is generally permissible to reproduce the content of a written work in one's own words and to utilise this summary. The decisive factor is therefore the extent to which the abstracts have adopted original formulations from the original reviews. The exact adoption of formulations could be relevant under copyright law and restrict the freedom of utilisation.
Source: Federal Court of Justice
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.
