Right of retrieval

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In copyright law, the right of retrieval (also: online transmission right ) is the exclusive right of the author to transmit his work via a computer network, in particular the Internet, from a server to a user who calls up the work from this server. The concept of a law outlined in this way comes from the German literature on copyright of the European Union . The independent existence of an on-demand transmission right is controversial and is probably mostly denied.

classification

According to Art. 3 Paragraph 1 of the InfoSoc Directive ( Directive 2001/29 / EC )

“Member States […] shall provide that authors have the exclusive right to make the communication to the public by wire or wireless of their works, including making the works available to the public in such a way that they are accessible to members of the public from places and at times of their choosing are to be allowed or forbidden. "

In order to implement Art. 3 Para. 1 InfoSoc-RL, the German legislator has included the “right of making available to the public” in the list of exclusive rights in 15 Para. 2 UrhG and this in accordance with the wording of the EU legislator in Section 19a UrhG defined as follows:

"The right to make the work available to the public is the right to make the work available to the public by wire or wireless in such a way that it is accessible to members of the public from the location and at the time of their choice."

In the context of Internet use, however, the concept of "making publicly accessible" seems to focus only on the act of making the work available or keeping it: Anyone who stores a file on a web server without further protective measures, for example, causes it to accessible ". Indeed, it is in line with established case law of the Court of Justice of the European Union that the requirement of making it publicly available does not depend on whether there is anyone who actually accesses the content posted on the Internet.

Against this background, the advocates of an independent retrieval transmission right argue that “making publicly available” only describes the path to the server, but not the path from the server to the user. This last act of transfer - the transfer of the work from the server to the user triggered by the user's request - should, in their opinion, be covered by an independent right ( i.e. the right to access the work ). There is broad agreement among the representatives that the legislature also wants to assign this right to the author. It is, however, an unnamed right of communication to the public which, although it can also be found in Article 3 (1) of the InfoSoc-RL, is to be distinguished from the right of making publicly available expressly mentioned therein. Occasionally, subsumption under the broadcasting right ( § 20 UrhG) is advocated.

Disagreement

The overwhelming majority of the literature assumes that the provision / keeping of a work on the Internet and the transmission at the request of the Internet user are both subject to the right to make them available to the public, in German law about § 19a UrhG, and consequently no room for a independent retrieval transmission right remains. This view conceives the right to make publicly available as a two-act right. In terms of making available to the public, i. S. v. Art. 3 Abs. 1 InfoSoc-RL also the Court of Justice.

If one sees this differently and understands the right to make publicly available as a mere right of availability / maintenance, this would have consequences for licensing practice in the European context. There will usually be a great deal of interest in being able to control not only the provision / maintenance, but also the transmission of access as a rights holder:

  • The control and sanction options remained limited in the case of the pure right of provision / storage, because it is precisely the transfer to the user that makes up the economically significant part of the recovery. The scope of the evaluation of a work made available on the Internet without permission is actually only apparent when taking into account the retrieval transmissions that have taken place.
  • In the case of cross-border online issues, there would also be an enforcement problem without the right to retrieve access, since content is sometimes delivered to German users, but the provision / storage takes place in an "oasis of liability".
  • If the author had only one right of availability / right of retention, he would also have no (absolute legal) control over the countries to which his work is transferred. For example, he could not prevent the transfer to countries with a low level of protection - from the author's point of view, placing a work online would therefore be subject to an “all or nothing principle”.

literature

  • Michael Gey: The right of making available to the public i. S. d. § 19a UrhG: Development, scope of regulation and selected problems from practice . Boorberg, Stuttgart 2009, ISBN 978-3-415-04208-7 . [Regarding the right of access to data transmission: pp. 59–80]
  • Alexander Koof: Broadcasting rights and the right to make publicly available in the age of media convergence . Mohr Siebeck, Tübingen 2015, ISBN 978-3-16-153349-5 . [Regarding the right of retrieval: pp. 104–108]
  • Günter Poll: From broadcast to podcast: Copyright classification of new internet business models . In: MultiMedia and Law . tape 14 , no. 4 , 2011, p. 226-231 .
  • Haimo Schack: Legal problems of online transmission . In: Commercial legal protection and copyright . tape 109 , no. 8 , 2007, p. 639-645 .
  • Joachim von Ungern-Sternberg: Transmission of copyrighted works by internet providers and online distribution rights . In: Willi Erdmann u. a. (Ed.): Festschrift for Michael Loschelder: For his 65th birthday . O. Schmidt, Cologne 2010, ISBN 978-3-504-06218-7 , pp. 415-424 .
  • Joachim von Ungern-Sternberg: Broadcasting rights and public access rights - exploitation rights in a changing media world . In: Karl-Nikolaus Peifer (Hrsg.): Work placement and rights management in the age of Google and YouTube - Copyright solutions for the audiovisual media world: Lecture event of the Institute for Broadcasting Law at the University of Cologne on June 18, 2010 . Beck, Munich 2011, ISBN 978-3-406-61475-0 , pp. 51-70 .

Remarks

  1. ↑ Schack, Rechtsprobleme der Online-Transmission , 2007, op.cit., P. 641.
  2. ^ From Lewinski / Walter in Walter / von Lewinski, European Copyright Law , 2010, Rn. 11.3.25.
  3. ↑ ECJ, judgment of February 13, 2014, C-466/12 = GRUR 2014, 360 - Nils Svensson et al / Retriever Sverige , Rn. 19; von Ungern-Sternberg in Schricker / Loewenheim, copyright , 5th edition 2017, § 19a marginal no. 6, with numerous other references.
  4. ↑ For example von Ungern-Sternberg in Schricker / Loewenheim, Copyright , 5th edition 2017, § 19a Rn. 7 ff .; Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, § 19a Rn. 7 f., 48
  5. ↑ Von Ungern-Sternberg, Broadcasting Law and Law of Public Accessibility , 2011, op. Cit., P. 61 f.
  6. ↑ Dreyer in Heidelberger Commentary on Copyright , 4th ed. 2018, § 19a Rn. 7 ff., 48.
  7. ↑ Koof, Broadcasting Right and Right to Make Public Accessible in the Age of Convergence of the Media , 2015, op. Cit., P. 104 f. The German Federal Court of Justice also refers to the controversy in its judgment of July 17, 2003, I ZR 259/00 = BGHZ 156, 1, 13 f. - Paperboy , go.
  8. ↑ For example Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 19a marginal no. 1; Schack, legal problems of online transmission , 2007, op. Cit., P. 640 f .; Koof, Broadcasting Right and Right to Make Public Accessible in the Age of Media Convergence , 2015, op. Cit., P. 104 ff .; Poll, From Broadcast to Podcast , 2011, op.cit., P. 229.
  9. ↑ Von Ungern-Sternberg in Schricker / Loewenheim, Copyright , 5th edition 2017, § 19a Rn. 7. See ECJ, ruling v. March 26, 2015, C-279/13 = GRUR 2015, 477 - C More Entertainment AB / Sandberg , Rn. 26 f.
  10. ^ Gey, The Right to Make Public Accessible i. S. d. Section 19a UrhG , 2009, op.cit., P. 60.
  11. ↑ Von Ungern-Sternberg in Schricker / Loewenheim, Copyright , 5th edition 2017, § 19a Rn. 11.
  12. ↑ Koof, Broadcasting Law and Law of Making Public Accessible in the Age of Convergence of Media , 2015, op. Cit., P. 107 f .; Poll, From Broadcast to Podcast , 2011, op.cit., P. 230.
  13. ^ Gey, The Right to Make Public Accessible i. S. d. Section 19a UrhG , 2009, op.cit., P. 61.