Collecting Societies Again

The press office of the Bundesgerichtshof (BGH) informs us that the copyright senate of the BGH has issued a judgment on the calculation of collecting society tariffs (BGH, 27 October 2011 - I ZR 25/10, press release available here).

In respect of indoor events, it is the established practice of German music collecting society GEMA to calculate the royalties it collects based on the size of the room where the music is played. To GEMA at least, it seemed logical enough to apply the same to outdoor events such as street fairs and Christmas markets. Accordingly, it took the size of the entire venue as reference point, from the first to the last stall or from the first to the last wall enclosing the space where the event took place (it's Friday, time to rhyme...).

As such things go, the organisers of a number of such outdoor events disagreed with GEMA's calculation methods. In their view, only the space where the sound from the stage can actually be heard should be taken into account. From that space, one should deduct the areas where visitors could not go, i.e. the stalls, the areas where they could not stay for more than a fleeting amount of time, i.e. public transport areas, and the areas where the music from the stage was overlaid with other music, i.e. music played at individual stalls.

Both the court at first instance and the court of appeal decided that the GEMA was entitled to determine royalties according to the size of the entire venue. The BGH confirmed these decisions. It pointed out that it is typical for outdoor events such as street fairs and Christmas markets that the audience in front of or in good listening distance to the stage constantly changes and new listeners replace the old. Consequently, the overall number of people listening to the music is substantially larger than the number of people the space where the music can be heard clearly could hold at any one time. The court added that the music played on stage usually characterises the entire event and that it would be unreasonable to ask GEMA to attend every single outdoor event in the country and measure the space where the music from the stage is clearly audible, and the space within that range where the audience cannot or must not stay or where other music overlays the music emanating from the stage. For reasons of practicality, then, GEMA's method of calculation was deemed appropriate.

I can't help remarking that a constantly changing audience - whether on a market or in a club - means that many people listen to little bit of music, whereas a constant audience - whether at an indoor or an open air concert - means that fewer people listen to more music. If 1,000 people listen to 10% of the music, isn't the end result the same as if 100 people listened to 100% of the music?

Also, I'm not exactly a science whiz, but shouldn't the laws of physics enable you to calculate the area where the music is audible if the organiser lets you know how loud he's going to play it? Throw in a plan of the site - which must exist because German authorities would not allow the organisers to put up stalls willy-nilly - and you can calculate the area covered by stalls as well as any areas where visitors cannot or must not go. Which leaves the musical overlay issue. While personally I find involuntarily listening to random mash-ups of songs that weren't so great in the first place deeply annoying, it appears to be something the organisers of such events seem to encourage for some reason. Otherwise surely they could just play music on the big stage and make putting up a stall conditional upon not playing your own music. So in my view, there is no good reason for deducting the areas of overlay.

We shall all have to wait for the written judgment to be released in order to find out why the BGH thinks the solution I just came up with is less than brilliant. In the meantime, I look forward to any comments or alternative approaches.

Preview Pictures II (Google Thumbnails)

In a judgment handed down yesterday, the Bundesgerichtshof (BGH) confirmed and expanded its position on Google thumbnails. In last year's 'Vorschaubilder' (preview pictures) decision (BGH I ZR 69/08, see Birgit's IPKat post here), the BGH held that Google's image search service does not infringe copyright in the pictures shown as 'thumbnails' in the search results. Since the copyright owner in that case put the pictures on the web and failed to take any steps to prevent them from appearing in Google's image search (which I understand is easy to do), she was deemed to have granted an implied licence for the pictures to be made available to the public by appearing in Google's image search results.

Now the court went a step further. The factual scenario was as follows: The copyright owner, a photographer, gave permission to someone else to make one of his photographs available on the Internet, presumably without requiring to take technical steps to prevent the photograph from appearing in Google's image search results (the written judgment is not available yet, and the press release is not entirely clear on this). Third parties then copied the photograph and made it available on their own websites. Google image search results then showed the photograph linking to the third parties' websites. The copyright owner complained and later sued Google, but to no avail.

The BGH considered that a search engine cannot distinguish pictures made available with the copyright owner's permission from those made available without the copyright owner's permission. It concluded that since the copyright owner gave someone permission to make his work available on the Internet, he is deemed to have given Google an implied licence to use the work in its image search service no matter what, even if the source of the preview picture is a website whose operator is in breach of copyright for making the work in question available.

Very kindly, though, the BGH pointed out that the copyright owner is free to sue those for copyright infringement who unlawfully made the images available on the Internet. Times were when one might have thought that would go without saying...

I agree that Google did not infringe copyright, but I confess to being confused nonetheless. If the third parties made the photograph available on their websites without permission and are thus infringing copyright, why is Google upon notification of the copyright owner not required under the principles of 'Störerhaftung' (secondary liability for contributing to someone else's breach of rights) to remove the photograph from its image search service as far as those websites are concerned? Surely it must be possible to exclude the third parties' websites from the image search while keeping the thumbnail from the website of the legitimate licensee?

Any comments by our dear readers would be very welcome.

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.