Linking and making available documents for downloading – can you benefit from the quotation right under German Copyright Law?
In the legal proceedings regarding a manuscript by a German politician and member of the German federal parliament the Federal Court of Justice (BGH) referred questions about the extent of the quotation right under German Copyright Law to the European Court of Justice (ECJ).Subject of these proceedings (Az.: I ZR 228/15) is a text by the politician from 1988 in which he reflects on the possibility of decriminalizing sexual contact with children. In the following years he distanced himself from his statements and maintained that the publisher had edited and thereby falsified his article.
In 2013 the original manuscript of the article was found. The politician forwarded the original manuscript to several newspaper editors in order to prove that the article had been falsified at the time of its publishing. Nevertheless, the German news platform “Spiegel Online” published an article which found that the manuscript had not been falsified and that only minor changes had been made to the original manuscript. To give evidence and for comparison purposes “Spiegel Online” provided their readers with a PDF document of the original manuscript and the published article to download from its website. However, the author had not given his consent to the original manuscript being published.
The politician considered the publication of his manuscript to be a violation of his copyrights and subsequently sued “Spiegel Online” for cease-and-desist and damages. After his lawsuit was successful in the lower-instance courts, the Federal Court of Justice (BGH) decided on 27th July 2017 that the proceedings shall be suspended and referred questions on the extent of the quotation right under copyright law to the European Court of Justice (ECJ).
According to the Federal Court of Justice (BGH) the decisive issues here are particularly whether “Spiegel Online” was required to obtain the copyright holder’s consent to the publication of the manuscript and whether the quotation right is applicable in cases where the quoted text is not inseparably integrated into the new article but is independently made available via link and Internet download.
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