Broadcast right

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In copyright law, the right to broadcast is a right that exclusively allows the author to make his work accessible to the public via radio .

Germany

In the German Copyright Act (UrhG) it is reflected in Sections 20 , 20a .

standard

§ 20 UrhG -
Broadcasting Right The broadcasting right is the right to make the work accessible to the public by radio, such as audio and television broadcasting, satellite broadcasting, cable broadcasting or similar technical means.

Classification and origin

The broadcast right is part of a bundle of exploitation rights to which the author of a work is entitled. According to Section 15 (2) UrhG , the author has “the exclusive right to publicly reproduce his work in an immaterial form”. According to section 3, these intangible exclusive rights also include the right to broadcast. Other intangible exploitation rights that must be distinguished from broadcasting rights are, for example, performance (in which a musical work is performed or another work is presented on stage) or making available to the public (which occurs when a work is posted on the Internet so that the Accessible to the public from places and at times of their choosing). Exploitation rights are important for authors because this is the only way they can control the exploitation of their works: If an act of use does not affect the author's exclusive right, the author cannot defend himself from his copyright.

The right to broadcast as a statutory right has existed since the copyright law came into force in 1966. However, the broadcast was already recognized as a form of exploitation because it was subsumed under another exclusive right: in this way, the Reichsgericht was able to unlawfully listen in 1926 - Consider broadcasting a drama by Hugo von Hofmannsthal as an interference with the rights of the author by qualifying the plot as a form of distribution. (An exclusive right to distribution was already recognized in the law.) In 1960, the Federal Court of Justice switched to treating broadcasting rights no longer as a sub-category of distribution rights, but rather as a separate, unnamed right of reproduction by analogy . The legislature then put an end to this jurisprudence with the law of 1965 by giving birth to an independent broadcasting right.

In its original version, § 20 UrhG defined broadcasting rights as the right to make a work accessible to the public “by radio, such as audio and television broadcasting, wire radio or similar technical facilities”. With the implementation of the Satellite and Cable Directive in 1998, the term “wire broadcasting” gave way to the two terms “satellite broadcasting” and “cable broadcasting”. According to the official justification , a mere "editorial modernization" was intended without any change in the facts, whereby the outdated term wire radio should be replaced and, on the occasion of the EU directive, explicitly mentioned for the purpose of clarification of satellite broadcasting.

The area of ​​broadcasting law also includes the so-called European satellite broadcasting regulated in Section 20a UrhG (see below). Because this is a special case of satellite broadcasts, European satellite broadcasts exceptionally do not fall within the scope of § 20 UrhG.

The right of the broadcasting company must be distinguished from broadcasting rights, even if this is sometimes also referred to as “broadcasting rights”. The right to broadcast is one of the author's exclusive rights to his work. The right of the broadcasting organization from § 87 of the Copyright Act is a separate ancillary copyright in favor of companies that a shipment within the meaning of § 20 radiate Copyright Act. Anyone who writes a book becomes the owner of the broadcasting rights (as well as the right of reproduction, the right to perform, etc.) to the work embodied in the book when it is created and can henceforth decide who is allowed to broadcast the work - for example by broadcasting a reading. If a television station broadcasts a late-night show, however, it becomes the owner of the ancillary copyright of the broadcasting company on the broadcast radio program.

General

The broadcasting right covers every single process by which a (copyrighted) work is made available to the public by radio, regardless of the type of broadcast (live broadcast vs. repetition; radio broadcast vs. television broadcast with moving images), which transmission path is selected ( terrestrial vs. cable vs. satellite ) and the cost of reception ( free vs. pay TV ). The term broadcast is not defined in the Copyright Act. The essential feature of the transmission, however, is that a one-sided radio transmission of a signal from a transmitting to a receiving system takes place, so that there is therefore a one-sided message in the transmission process. This notification must then be addressed to a “public”, whereby a reproduction is always “public” if it is “intended for a majority of members of the public” ( Section 15 (3) UrhG). Ultimately, it is constitutive for the character of the broadcast that not only the broadcaster decides on the point in time of making the work available, but also that the work is made available to all members of the public at the same time (which, however, does not mean that Work is actually perceived by all at the same time). The fact that many television viewers recorded TV programs using video or hard disk recorders and thus viewed them with a time delay does not play a role in the applicability of broadcasting rights.

As can be seen from the term, the right to broadcast regulates the act of sending, not receiving it. The reception and the associated enjoyment of the work are - as long as the content is not publicly reproduced again - irrelevant to copyright. In Germany incurred for households license fee therefore has nothing to do with the broadcasting or just copyright, but relies on Public Law ( broadcast contribution treaty ).

Broadcasting rights and internet

A number of (relatively modern) forms of work placement over the Internet cause problems with demarcation. There the question often arises whether and when the broadcasting and when the right to make public access ( § 19a UrhG) is affected. The distinction plays a role in particular for the rights of those entitled to protection and for the applicability of certain restrictions. For example, the broadcasting company's right can only arise if a work is broadcast within the meaning of Section 20 UrhG, but not in cases where it is made available to the public.

For a long time, it was controversial in case law whether or in which exploitation rights so-called online video recorders intervene. These are Internet offers that allow their users to record one or more television programs by selecting from a digital program guide. The recording is then made using the provider's technical infrastructure; After the broadcast has ended, the user can download the television program as a video file. According to the Federal Supreme Court (BGH), the operator uses of such online video recorder regularly not the right of making available ( § 19a of the Copyright Act) that because the concrete recording each made only one person available (which themselves on the private copying freedom support can). On the other hand, the BGH evaluates the operator's activity - in detail depending on the technical design of the offer - as an interference with broadcasting rights (in the form of retransmission within the meaning of Section 87 (1) sentence 1 UrhG). In order to qualify as a broadcast, the BGH allows the broadcast signal to be forwarded from the satellite antenna as the receiving device to the online video recorder as the recording device. In the event of a dispute, the interference with broadcasting rights resulted from the fact that the broadcast was transmitted to a sufficient number of users for recording to justify the publicity required.

The delimitation problem described also arises with individualized services such as so-called personalized Internet radios . Based on the user's preferences, these generate individual radio “streams” that the user can switch on at any time; In some cases, certain artist- or genre-specific streams are also offered that can be played by interested Internet users. The evaluations of such offers vary widely: Some of the literature sees them as being made publicly available, which is justified, for example, with the interactive influenceability of many Internet radio stations through functions such as “skip title” or “pause”; another part affirms the presence of a program because the offers are characterized by a structure specified by the provider and the streams can only be accessed at the time of broadcast; Another part thinks that personalized web radios intervene in an unnamed right of public reproduction ("online distribution right"). In the case of streams that are only individually generated and accessible, it is also questionable to what extent there is a public at all.

European satellite broadcast

The subject of protection of § 20a UrhG is the European satellite broadcast. A "satellite broadcast" within the meaning of § 20a UrhG is "the input of the program-carrying signals intended for public reception, under the control and responsibility of the broadcasting company, into an uninterrupted transmission chain that leads to the satellite and back to earth" ( § 20a para. 3 UrhG). It is also "European" if it is either a) carried out in an EU member state or EEA signatory state and is deemed to have taken place in this ( Section 20a (1) UrhG) or b) it is carried out in a third country with a lower level of protection ( Section 20a para. 2 UrhG). The broadcast definition in Section 20a (3) UrhG does not correspond to the common understanding of the term, according to which a satellite broadcast should normally only mean the broadcast to and from the satellite and not the input of the broadcast into the transmission chain. In this respect, it does not coincide with the concept of broadcasting [by satellite] in Section 20 UrhG, so it cannot be used to interpret general broadcasting law.

Forwarding

The right to broadcast includes the right to retransmit by cable, i.e. the right to retransmit a broadcast work within the framework of a simultaneous, unchanged and completely retransmitted program through cable systems or microwave systems (cf. § 20b para. 1 sentence 1 UrhG).

literature

  • Joachim Bornkamm: The exhaustion of broadcasting rights: a wrong track? In: Willi Erdmann u. a. (Ed.): Festschrift for Otto-Friedrich Frhr. v. Gamm . Heymanns, Cologne 1990, ISBN 3-452-21880-5 , p. 329-344 .
  • Oliver Castendyk: Broadcasting Rights and Internet . In: Reto M. Hilty, Wilhelm Nordemann and Josef Drexl (eds.): Protection of creativity and competition: Festschrift for Ulrich Loewenheim on his 75th birthday . Beck, Munich 2009, ISBN 978-3-406-59000-9 , pp. 31-48 .
  • Georgios Gounalakis: The concept of broadcast from a copyright point of view . In: Journal for Copyright and Media Law . 2009, p. 447-452 .
  • 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 .
  • Alexandra Kruczek: The evaluation of the cable retransmission rights of broadcasting companies in Germany and the USA . Lang, Frankfurt am Main 2005, ISBN 3-631-54329-8 .
  • Karl Riesenhuber : Who is the sender ?: A review of the regional contract decision of the BGH . In: Journal for Copyright and Media Law . 2011, p. 134-141 .
  • Hermann J. Stern: Broadcasting and retransmission rights: broadcasting, cable and satellite . In: Swiss Association for Copyright (Ed.): 100 Years of the URG: Festschrift for the centenary of a federal copyright law . Stämpfli, Bern 1983, ISBN 3-7272-0561-X , p. 187-207 . [Switzerland]
  • Joachim von Ungern-Sternberg: Broadcasting rights and public access rights - exploitation rights in a changing media world . In: Karl-Nikolaus Peifer (Ed.): Work placement and rights management in the age of Google and Youtube - Copyright solutions for the audiovisual media world: Lecture by the Institute for Broadcasting Law at the University of Cologne on June 18, 2010 (=  series of publications by the Institute for Broadcasting Law at the University of Cologne ). Beck, Munich 2011, ISBN 978-3-406-61475-0 , pp. 51-70 .

Remarks

  1. ↑ See RG, judgment of May 12, 1926, I 287/25 = RGZ 113, 413 - The gate and the death. Most of the literature rejected this classification, cf. BGH, ruling v. May 31, 1960, I ZR 87/58 = BGHZ 33, 38, 41 f. = GRUR 1962, 627, 628 - artist license for public reproduction of radio broadcasts, with further evidence (not printed in BGHZ). For the contrary opinion cf. Philipp Allfeld, The copyright in works of literature and music: Commentary on the law of June 19, 1901 and on the international treaties for the protection of copyright, 2nd edition, Beck, Munich 1928, p. 144, also with further references . On the development of case law in general by Ungern-Sternberg in Schricker / Loewenheim, copyright , 5th edition 2017, before §§ 20 ff. Rn. 40 ff.
  2. ↑ BGH, ruling v. May 31, 1960, I ZR 87/58 = BGHZ 33, 38, 42 f. = GRUR 1962, 627, 629 - artist license for public reproduction of radio broadcasts. On this by Ungern-Sternberg in Schricker / Loewenheim, copyright , 5th edition 2017, before §§ 20 ff. Rn. 40.
  3. ↑ Ninth law amending the Copyright Act of 8 May 1998 ( Federal Law Gazette I p. 902 ), Art. 1 No. 1. On this by Ungern-Sternberg in Schricker / Loewenheim, Copyright , 5th edition 2017, before §§ 20 ff. Rn. 44.
  4. ↑ draft law of the federal government. Draft of a fourth law amending the copyright law (printed matter 13/4796) (PDF file, 1.2 MB), June 4, 1996, accessed on April 27, 2015, p. 11.
  5. ↑ Hillig in Ahlberg / Götting, BeckOK Copyright, 7th edition 2015, § 20 Rn. 2; von Ungern-Sternberg in Schricker / Loewenheim, copyright , 5th edition 2017, § 20 marginal no. 51.
  6. ↑ Dreier in Dreier / Schulze, Copyright Act , 6th edition 2018, § 87 Rn. 5, 10.
  7. ↑ Von Ungern-Sternberg in Schricker / Loewenheim, Copyright , 5th edition 2017, § 20 Rn. 25, 44, 51; Ehrhardt in Wandtke / Bullinger, Practical Commentary on Copyright , 4th edition 2014, § 20 Rn. 2; Dreier in Dreier / Schulze, Copyright Act , 6th edition. 2018, § 20 marginal no. 7; Koof, Broadcasting Right and Right to Make Public Accessible in the Age of Convergence of Media , 2015, op. Cit., Pp. 69–71.
  8. ↑ Gounalakis, The concept of sending from a copyright perspective , 2009, op. Cit., P. 447; Koof, Broadcasting Right and Right to Make Public Accessible in the Age of Convergence of Media , 2015, op.cit., P. 68.
  9. ↑ Koof, Broadcasting Law and Law of Public Access in the Age of Convergence of the Media , 2015, op. Cit., P. 71. Similar to Ehrhardt in Wandtke / Bullinger, Practical Commentary on Copyright , 4th ed. 2014, § 20 Rn. 1.
  10. ↑ BGH, ruling v. April 22, 2009, I ZR 216/06 = GRUR 2009, 845 - Internet video recorder I , Rn. 35; von Ungern-Sternberg in Schricker / Loewenheim, copyright , 5th edition 2017, § 20 marginal no. 7, 31; ders., Broadcasting Rights and Public Accessibility Rights - Exploitation Rights in a Changing Media World, 2011, op. cit., p. 53, with further references; Dreier in Dreier / Schulze, Copyright Act , 6th edition. 2018, § 20 marginal no. 9.
  11. ↑ Schack, Copyright and Copyright Contract Law , 8th edition 2017, Rn. 452. For the delimitation see for example the illustrative ECJ, ruling v. May 31, 2016, C-117/15 = GRUR 2016, 684 - Rehabilitation Training v. GEMA on the possibility of one's own act of public reproduction by setting up television sets .
  12. ↑ Dreyer in Dreyer / Kotthoff / Meckel, Copyright, 3rd edition 2013, § 19a Rn. 30th
  13. ↑ See now also ECJ, ruling v. November 29, 2017, C-265/16 - VCAST v. RTI , Rn. 36 ff.
  14. ↑ BGH, ruling v. April 22, 2009, I ZR 216/06 = GRUR 2009, 845 - Internet video recorder I , Rn. 32 f.
  15. ↑ BGH, ruling v. April 11, 2013, I ZR 152/11 = GRUR 2013, 618 - Internet video recorder II , Rn. 43. On the whole, in detail Maximilian Haedicke, The copyright assessment of online video recorders , in: Journal for Copyright and Media Law , Vol. 60, No. 7, 2016, pp. 594–605.
  16. ↑ Castendyk, Senderecht und Internet, 2011, op.cit., P. 35.
  17. ↑ Von Ungern-Sternberg in Schricker / Loewenheim, Copyright , 5th edition 2017, § 20 Rn. 16.
  18. ↑ In addition, with the respective evidence, Koof, Broadcasting Law and Law of Public Access in the Age of Convergence of Media , 2015, op. Cit., Pp. 371–374.
  19. ↑ Von Ungern-Sternberg in Schricker / Loewenheim, Copyright, 5th edition 2017, § 20 Rn. 16; Castendyk, Senderecht und Internet, 2011, op.cit., Pp. 35 ff., 45.
  20. ↑ Ehrhardt in Wandtke / Bullinger, Practical Commentary on Copyright , 4th edition 2014, before §§ 20 ff. Rn. 2.
  21. ↑ Von Ungern-Sternberg in Schricker / Loewenheim, Copyright , 5th edition 2017, § 20a Rn. 29; Dreyer in Dreyer / Kotthoff / Meckel, copyright, 3rd edition 2013, § 20 marginal no. 13.
  22. ↑ Hillig in Ahlberg / Götting, BeckOK Copyright, 7th edition 2015, § 20a Rn. 2 B; von Ungern-Sternberg in Schricker / Loewenheim, copyright , 5th edition 2017, § 20a marginal no. 23.
  23. ↑ BGH, ruling v. December 17, 2015, I ZR 21/14 = GRUR 2016, 697 - Königshof , Rn. 14th