Copyright Lovers

You are welcome to follow him: LinkedIn Prof. Dr. Jan Bernd Nordemann

The CJEU and the German Federal Supreme Court (BGH) have done it again. They have handed down many, many copyright decisions in 2024. Like every year, Julian Waiblinger and I have summarized these decisions for the leading German law journal NJW (Neue Juristische Wochenschrift). Here are the main takeaways:

• In the field of applied art, the protection of works cannot be made dependent on the work also being protected by copyright in the country of origin. This should have an impact in particular on works of applied art by US artists (CJEU case: “Kwantum”).

• The German BGH ruled on copyright moral rights. It violates the right to recognition of authorship (Section 13 German Copyright Act – UrhG) if another person claims authorship, even if only vis-à-vis the author (BGH case “Der verratene Himmel”).

• In the field of economic rights, the CJEU confirmed communication to the public by TV sets in hotel rooms. Such screens would be in public, no matter if the broadcast signal was received via hotel cable (CJEU case “Citadines”) or via antenna (CJEU case “GEMA”). For antenna TVs, this deviates from earlier BGH case law (BGH case “Könighof”).

• In software copyright law, the CJEU refused to classify cheat software as a use requiring consent by the software copyright owner (CJEU case “Sony”).

• With regard to the exception and limitations to copyright, it is worth mentioning that the German BGH does not want to include drone photos under the panorama freedom (BGH case “über alle Berge”). Furthermore, according to the BGH internet radio recorders can continue to claim the private copying exception if they make separate copies for every user (BGH case “Internet-Radiorecorder II”).

• Anyone who advertises rooms on the internet using photos showing rooms with photo wallpaper is not acting unlawfully, even if you do not have the consent of the photographer of the photo wallpaper (BGH case “Coffee”).

• Regarding platform liability, the BGH applied the liability concept of CJEU “YouTube/Cyando” also to online marketplaces where users make illegally available photos to advertise products sold. But the BGH refused to apply this liability model to the reproduction right (BGH case “Manhattan Bridge”).

Please get back to me if you would like a copy of any of these decisions. There will be an English article out soon.

A big thank you to our legal trainee Justin Rennert for helping with the manuscript and also to Tobias Freudenberg to Nathalie Dennier both from NJW Neue juristische Wochenschrift for the smooth publication process.