The use of fragments of texts will only be legitimate if the new text it is used for is considered as an independent work protected by copyright law. This will depend on the independence the new text has from the fragments used. These are the brief grounds given by the German Federal Court of Justice in two recent copyright judgements that have gained much media attention in Germany (case references I ZR 12/08; I ZR 13/08).
The Plaintiffs of the cases were two of the most well-known German newspapers – Frankfurter Allgemeine Zeitung (FAZ) and Süddeutsche Zeitung (SZ). Both newspapers feature feuilletons which also cover reviews on recently published books. Amongst the authors of the reviews are some very popular German critics. The newspapers had raised claims against the owner of the online platform www.perlentaucher.de based on the infringement of copyright law. The website, which means, translated into English, “pearldiver”, offers an online magazine including essays and reviews of new publications. This does comprise abstracts of previous reviews including reviews of Frankfurter Allgemeine Zeitung and Süddeutsche Zeitung. The abstracts are shorter than the original review. They are written by employees of Perlentaucher and usually feature the general assessment of the original review as well as some quotations. These quotations are mostly marked with inverted commas. The extent of the adoption differs from abstract to abstract but does exceed a few words in most cases.
The abstracts were available on the website www.perlentaucher. de. In addition, Perlentaucher licensed the abstracts to various other website owners. Frankfurter Allgemeine Zeitung and Süddeutsche Zeitung regarded both as an infringement of their position as the holder of the exclusive rights of the reviews. They sued the online platform to cease from the further use of the materials, demanded information regarding the use and the licensing of the abstracts and also claimed damages.
Before the actions came to the German Federal Court of Justice the claims were rejected by two levels of jurisdiction. The courts stated that the scope of the adoptions were two small to consider its use as an infringement of copyright law. They based their decision on § 24 (1) Urheberrechtsgsetz (UrhG – German Copyright Code). This section of the Copyright code belongs to the German free use-provisions (so called “Schranken”) and allows the use of pre-existing works if it is used: (a) in a new work; and (b) if this new work is independent from the pre-existing work.
The Federal Court of Justice overruled the previous decisions although it did not disagree with their general legal evaluation. The judges affirmed that the legitimacy of the use of the fragments depends on whether § 24 UrhG is applicable. If this is the case the fragments can be used without the prior consent of the newspapers which will also include any licensing to third parties.
These objectives were recognized by the previous instances but the Federal Court of Justice came to the conclusion that the scope of § 24 UrhG was not applied correctly. The judges missed an individual evaluation of each abstract, which had not been executed. In addition, the Federal Court of Justice also stated how these detailed evaluations have to be carried out. This evaluation has to take into account that not the information included in the fragments but only their phrasing is protected by copyright law. As a matter of fact it is allowed to give a résumé of an existing text without the prior consent of the author. The legitimacy of the use will therefore depend on the scope of the adoption. One further aspect will be what kind of phrasing was used and how individual it is. These aspects were missed in the previous judgements.
Both actions were ordered back to the previous levels of jurisdictions - the Higher Regional Court of Frankfurt. This court will have to decide again and this will have to include a detailed assessment of the various abstracts. The owners of www.perlentaucher.de - the defendents in the actions - announced already that they do not expect any change of the previous judgments. However, since some of the abstracts do feature substantial quotations this will be not as certain as the defendant claims.