Olswang Germany Media Newsletter May 2015

Germany

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

  • European Commission Presents Digital Single Market Strategy
  • Regional Subsidy Board MFG Baden-Württemberg Grants Subsidies for the Production of TV-Series "Game of Thrones" and "Shannara"
  • German Federal Court of Justice: Public Libraries May Offer Their Books Digitally
  • Higher Regional Court Hamburg: No Exhaustion of Copyright for E-Books or Audio Books - Despite "Used Soft"
  • ECJ: Live Online Broadcast of Sport Events Not Protected by EU Law, but National Provisions May Be Stricter
  • YouTube Data to be Included in Ratings by German Broadcasters' Research Partnership "Arbeitsgemeinschaft Fernsehforschung (AGF)"

European Commission Presents Digital Single Market Strategy

On 6 May, the EU Commission published its long-awaited Digital Single Market strategy. The strategy is an aggregation of different policy areas under the united banner of creating a digital single market to expand jobs and stimulate growth. The strategy document includes proposals about a range of topics impacting the audiovisual sector, in particular Vice President Ansip's criticism of geo-blocking. In many respects it is a more conciliatory document than many in the media industries have feared, with a more moderate tone than previously. However, it still lacks detail on most points, which will probably only become clearer when the draft legislative proposals are presented in late 2015, early 2016.

In the meantime, European Commissioner Oettinger has backpedalled slightly. During the Cannes Film Festival, he said that the Commission's aim was "to realise a complete European digital single market", but that it "could see several sectors - film, broadcasting and the sports sectors - being exempted." The Commission did not want "to damage our creative industries, the film sector", he added, raising the (cautious) hopes of the media industry.

Regional Subsidy Board MFG Baden-Württemberg Grants Subsidies for the Production of TV-Series "Game of Thrones" and "Shannara"

On May 18, MFG Baden-Württemberg, the German state of Baden-Württemberg's regional subsidy board, has granted production subsidies to international productions "Game of Thrones" (HBO) und "Shannara" (Viacom/MTV). MFG had just recently amended their subsidy regulations to allow applications not only by producers, but in exceptional cases also by line producers responsible for individual parts of production - a first in the German subsidy landscape. Both productions use VFX specialists in Stuttgart: Mackevision and Pixomondo. EUR150,000 were awarded to the production of season 5 of "Game of Thrones", with Mackevision applying for the subsidy. The production of the first season of upcoming fantasy series "Shannara" was subsidised with EUR300,000 following an application by MTV New Zealand.

German Federal Court of Justice: Public Libraries May Offer Their Books Digitally

On April 16, the German Federal Court of Justice held (in German only) that public libraries may digitise and digitally offer published works for users to read, save and print at electronic reading terminals in the library. A university library had been sued by a publisher for digitally offering a textbook to its users, and claimed the copyright exception in Sec. 52b of the German Copyright Code (UrhG) as a defence. Pursuant to this exception, it is permissible to make published works from the stocks of publicly accessible libraries, museums or archives available on the premises of said institutions at terminals dedicated to research and private study, if there are no contractual provisions to the contrary. The Federal Court had sought a preliminary ruling by the European Court of Justice (ECJ) on the interpretation of Article 5 (3) lit. n of the InfoSoc-Directive (Directive 2001/29/EC), which Sec. 52b UrhG seeks to implement. In light of the ECJ's answers, the Federal Court has now decided in favour of the library.

The Court held that the library was allowed to offer works digitally under the copyright exception of Sec. 52b UrhG, even if the publisher had offered to licence such use, since a contract offer does not amount to actual "contractual provisions to the contrary". Also, the library was permitted - in an analogous use of the copyright exception in Sec. 52a (3) UrhG, which allows the copying of works necessary for making them available to the public for instruction and research - to digitise works first if this is necessary to offer them at electronic reading terminals.

Higher Regional Court Hamburg: No Exhaustion of Copyright for E-Books or Audio Books - Despite "Used Soft"

On March 24, the Higher Regional Court Hamburg (Hans. OLG) held that the principle of exhaustion of copyright does not apply to digital, immaterial works like e-books or audio books, and that therefore the re-sale of e-book or audio book files without permission of the rights holder is a violation of copyright.

Online retailer libri.de was sued by the Federation of German Consumer Organizations (VZBV) for the use of certain provisions in their general terms and conditions (T&Cs). Pursuant to one of the provisions, the customer is granted only a non-exclusive and non-transferable right to purchased e-books and audio books, and is not permitted to pass on digital copies downloaded from Libri. VZBV claimed that such provision violates German T&C and copyright law. The court of first instance had not supported this claim, holding that customers do not expect to get more rights than those granted under the T&Cs, and that furthermore the copyright in e-books and audio books had not been exhausted by the download of a digital copy under German copyright law. The Higher Regional Court upheld this ruling and stressed that the principle of exhaustion only applies to physical distribution of works. The legislator had deliberately not provided for an exhaustion of copyright by making available downloaded digital copies of protected works. The Court furthermore emphasised that such ruling does not contradict the "Used Soft" decision by the European Court of Justice (ECJ), since that decision and its line of argumentation was limited to software and did not include digital copies of other works.

ECJ: Live Online Broadcast of Sport Events Not Protected by EU Law, but National Provision May Be Stricter

On March 26, the European Court of Justice (ECJ) held that live internet broadcasts of sport events are not protected under EU law; however, national provisions may provide for stronger protection.

A Swedish pay-TV broadcaster which, inter alia, broadcasts on their website live ice hockey matches for payment of a fee, had sued an individual who offered links on his own website enabling users to circumvent the broadcaster's paywall and to access the broadcasts for free. The defendant was found guilty of an infringement of Swedish copyright law, which, in contrast to the InfoSoc-Directive, does not restrict copyright protection to acts of making works available "on demand". On appeal, the Swedish Supreme Court turned to the ECJ for a preliminary ruling on whether national law may be stricter than the InfoSoc-Directive, and offer more protection to broadcasters. The ECJ held that Art. 3 (2) of the InfoSoc-Directive must be interpreted in light of Directive 2006/115, which gives Member States the option of providing for more protective provisions with regard to the broadcasting and communication to the public of transmissions made by broadcasting organisations. Therefore, the InfoSoc-Directive does not preclude national legislation extending the broadcasters' exclusive right.

YouTube Data to be Included in Ratings by German Broadcasters' Research Partnership "Arbeitsgemeinschaft Fernsehforschung (AGF)"

As announced (in German only) on April 27, viewer data published by Arbeitsgemeinschaft Fernsehforschung (AGF), a research partnership of broadcaster groups ARD, ProSiebenSat.1, RTL and ZDF, will henceforward also include YouTube results. AGF aims to identify the convergent net reach of TV and online video by taking into account YouTube and other online video providers. First results of this integration - the first such approach globally - were announced for later this year. To obtain these results, AFG intends to make use of a so-called "mega panel" fed with data from Nielsen and market researcher GfK. AFG hopes to gain insight in the overlap of TV and online usage on computers and mobile devices.

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