Germany: the legitimacy of the parody under the EU law

On 28th July, 2016, the Federal Supreme Court ruled that the section 24, subsection 1 of the Copyright Act, relating to the free use of a copyright protected work in order to realize a parody, must be interpreted in accordance with the Art. 5 (3) lit. k of the Directive 2001/29/EC.

In this regard, it is relevant the decision issued by the CJEU on 3td, September, 2014 (C-201/13). The CJEU said that concept of ‘parody’, which appears in a provision of a directive, that does not contain any reference to national laws, must be regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union.

That interpretation is not invalidated by the optional nature of the exception mentioned in Article 5(3)(k) of Directive 2001/29. An interpretation according to which Member States that have introduced that exception are free to determine the limits in an unharmonised manner, which may vary from one Member State to another, would be incompatible with the objective of that directive (see, to that effect, judgments in Padawan, paragraph 36, and ACI Adam and Others, C‑435/12 , paragraph 49). 

In the opinion of the CJEU, the article 5(3)(k) of Directive 2001/29 must be interpreted as meaning that the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery. On the contrary, the concept of ‘parody’, within the meaning of that provision, is not subject to the conditions that the parody should display an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work; that it could reasonably be attributed to a person other than the author of the original work itself; that it should relate to the original work itself or mention the source of the parodied work.

Moreover, the application of the exception for parody, within the meaning of Article 5(3)(k) of Directive 2001/29, requires a fair balance between, on the one hand, the freedom of expression of the user of a protected work who is relying on the exception for parody, and on the other,  the interests and rights of persons referred to in Articles 2 and 3 of that directive.

 

Germany: Youtube is not responsible for the IP violations by third parties

On 28th January, 2016, the Oberlandesgericht of Munich established that Youtube is not responsible for the IP violations made by third parties through the platform.

GEMA, the German collecting society, asked Youtube to pay the royalties for the utilization of music in some Videos uploaded by the users.

However, Youtube refused to accept the charges, given its role as a provider of a technical service.
As a consequence, lawyers said, Youtube don't have any influence on the publication of the Contents.

The Oberlandesgericht of Munich accepted these argumentations and ruled that GEMA schould address its
compliants against the users and not against YouTube.

The decision is not definitve and GEMA announced that it will bring an appeal before the Bundesgerichtshof.

Germany: the first decision of the ZAK in matter of virtual product placement

On April 15, 2014, the Kommission für Zulassung und Aufsicht issued its first decision in matter of virtual product placement.

The decision was about a 15-second sequence of a poster advertising in the film “Hansel &Gretel: Witch Hunters” (RTL2 programme “Berlin Tag & Nacht”, 2013). In the opinion of the Kommission, the sequence did not breach the Land media authorities’ advertising regulations, because the product placement did not appear artificial and forced, as well as it respected the regulation on the matter, like labelling, independence of the broadcaster, no excessive prominence of the product).

Germany: surreptious advertising

On March, 9 2015, the Bavarian Administrative Court, ruled that the repeated appearance of a logo during a television programme constitutes illegal surreptitious advertising. 

The case no. 7 B 14/1605 concerned the broadcast of the programme ‘Learn from the Pros’ by TV channel Sport1, in which the logo of an internet provider was showed in every shot and in particular when viewers were paying particularly close attention. Moreover, at the end of the programme, viewers were encouraged to visit the website of the internet provider.

In the opinion of the Court, the intensity and the frequency of the logo in the programme, as well as the lack of an advertising label demonstrated the intention to mislead the viewers.