The German Federal Supreme Court already had to decide on the legality of Internet video recorders back in 2009. After the German Federal Supreme Court reversed the decision of the Court of Appeals and remanded the case, the matter has now appeared once more in front of the German Federal Supreme Court. The background is the following:

The plaintiffs were the television broadcasters RTL and SAT.1. The defendants were the operator of the Internet video recording platform “Shift. tv” on the one hand, and the operator of the similar platform “Safe.tv” on the other. The contested Internet platforms made it possible for users to record several TV shows simultaneously, to watch them either directly on the computer as an online stream, or to download them at a later point in time. The defendants transferred the TV shows of both broadcasters from the antennae to the respective video recorders of the customers. The plaintiffs regarded the offer of the Internet video recorders as an infringement of their right to retransmit a broadcast pursuant to Section 87 (1) 1 of the German Copyright Act, and asked for injunctive relief and information by the defendants.

The German Federal Supreme Court has now held that the offering of Internet video recorders as such, generally constitutes an infringement of the right to retransmit broadcasts (this was also held by the Court of Appeals), but it also pointed out that it needs to be examined whether the operators of the Internet video recorders can argue that the TV broadcasters are obliged to grant them a license for such use.

The Court of Appeals had rejected this defense by the defendants and pointed out that the question of whether a compulsory license pursuant to Section 87 (5) of the German Copyright Act can be requested needs to be examined in a proceeding before the Arbitration Board for copyright matters at the German PTO. However, the Court of Appeals did not stay the proceeding in order to allow for an Arbitration Board proceeding to take place, but just held that an infringement of the right to retransmit of the plaintiff existed.

The German Federal Supreme Court did not regard this approach as correct. It reversed the decision of the Court of Appeals and remanded the case yet again as the Court of Appeals had failed to examine whether the requirements of a defense based on a compulsory license exist.

In case the Court of Appeals comes to the conclusion that such a defense is admissible, it would have to stay the proceedings to give the defendants the chance to start a proceeding at the Arbitration Board. The Arbitration Board would then examine whether the defendants can claim a compulsory license with respect to the rebroadcasting pursuant to Section 87 (5) of the German Copyright Act. If the Arbitration Board comes to the conclusion that such a right to a compulsory license does not exist, this could mean at the same time that the copies made by users, which currently are regarded as private (fair use) copies under Section 53 (1) of the German Copyright Act, could then be regarded as copies from an obviously illegal source not covered by the fair use provision under Section 53 (1). The decision of the Court of Appeals will be of interest not only to the industry, but also to private users. And it remains to be seen whether the next decision by the Court of Appeals in this matter will be the final word.