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.