Friday, 9 December 2016

CJEU GS Media decision finds its first application in Germany

GS Media finds its first application
in Germany
A few weeks ago on The IPKat I reported that a Swedish court has been likely the first in Europe to apply the September decision of the Court of Justice of the European Union (CJEU) in GS Media [here and here].

After Sweden, it is now the turn of Germany, as 1709 Blog friend Mirko Brüß (Rasch) explains.

Here's what Mirko writes:

"UFOs, creative commons and hyperlinks!

The Regional Court of Hamburg (Landgericht) has just provided us with a decision that appears to be the first ruling from Germany to apply the GS Media principles [Case no. 310 O 402/16]

The court came to the conclusion that (commercial) linking to unauthorized content is infringing, even when it is quite hard to determine the infringing nature of the work that is being linked to.

The claimant in this case is a photographer who took a picture of a public building. He then uploaded this picture on the “Wikimedia Commons” platform, using a Creative Commons (CC) licence (note that the judgment does not expressly indicate which license was used). This picture was then modified by an unknown third person, who added UFOs to the picture that appear to be flying above the building. This new picture was uploaded by the third person on his website.

The defendant operates a website where he publishes and sells educational material that he creates. In the imprint of this website, the defendant posted a sentence that included the word “UFO”, which linked to the modified “UFO-Version” of the claimant’s picture. Clicking on the word “UFO” a new browser window in which the “UFO-Version” of the picture was shown would be opened. 

The photographer deemed that this constituted an infringing use of his work and brought the defendant to court.

The Hamburg court noted at the outset that the original picture is a protected work within the German Law on Copyright and Related Rights (UrhG) and that the claimant owned the rights to this work, including the right of communication to the public within § 19a UrhG. The court then moved directly to the GS Media decision and quoted paras 32-43 and paras 47-53, stating that the principles set therein would be applicable to the case at hand.

Since linking to content that has been published with the rightholder’s consent is not an infringement per se and the original picture was available on the “Wikimedia Commons” platform with the consent of the claimant (under a CC licence), the court looked into the question of whether the derived version was lsawful or not. 

It determined that the “UFO-Version” of the picture that was hosted on the third party’s website was infringing. 

While the CC licence used by the claimant allowed for modifications of the original work and also the making available of such modified works, the terms of the licence also required attribution and an indication that the work had been modified. Since the “UFO-Version” was hosted on the third party’s website without the necessary attribution and indication of modification, the CC licence was forfeited. Thus, the court found that the use of the modified picture on the third party’s website was infringing. 

From there, the court looked into the requirements of “infringing linking” after the GS Media decision. It interpreted GS Media in a way that hyperlinking is only potentially infringing in case of culpable conduct or negligence. This is derived from the CJEU’s requirement that the person using the link did not know, or could not reasonably have known, about the unlicensed nature of the publication of the work in question. If the link is provided for financial gain, such knowledge must be presumed.

... here it is rather about
the pursuit of profit
Here, the court wondered whether indeed the specific link must be provided “for financial gain” or if it is sufficient that the link is provided on a website that is operated for financial gain. Looking at the CJEU’s reasons, the Hamburg court went for the latter option [note by Eleonora: this addresses a point left ambiguous by GS Media]. The judges understood the criterion in a broad sense, because the CJEU used this to distinguish between cases where the person using the link needs to verify if the work he links to is infringing or not and other cases, where no such checks are necessary. It appears that the court believed that it is reasonable to ask any operator of a “commercial website” to check the legality of the works he links to.

The defendant stated that he was aware of the GS Media decision, but did not agree with it arguing that its application would infringe his fundamental rights. This argument did not persuade the judges, since the CJEU decision did provide the necessary balance of all the affected fundamental rights. Thus, the defendant was unable to rebut the presumption of knowledge that the content linked to was unlawful.

Finding that the defendant operated a website for commercial gain on which he had linked to a work that was not (in this form) published with the rightholder’s consent, the court concluded in the sense that the defendant had infringed the claimant’s right of communication to the public."

Thanks so much Mirko for this thorough review of yet another interesting decision from Germany!

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