BGH: hyperlinks, freedom of expression and copyright infringing software

Already decided on 14 October 2010, even though only published in its entirety now, has been a decision (case reference: I ZR 191/08; 'AnyDVD') by the German Federal Supreme Court (Bundesgerichtshof) concerning a lawsuit brought by several music companies against Heise Verlag, an online publisher specializing in IT and computer news. The claimaint's took objection to reports published on Heise’s website which included links to a third party website (SlySoft) that offered software that allowed circumventing copy protection for DVDs.

While the lower courts, the Regional and Higher Courts of Munich I, had held that Heise's online reports were itself copyright infringing, the First Civil Senate of the Bundesgerichtshof took the view that adding the links on Heise's website which linked to SlySoft's website (where SlySoft offered copyright right infringing software) was covered by the constitutional right of freedom of press and freedom of opinion under Article 5(1) German Constitution (Grundgesetz). Further, in cases where the actual text of a report was protected by freedom of expression and freedom of press, the included links would also be afforded equal protection. The judges stressed that the purpose of the links on Heise's website was not only to technically facilitate to access the SlySoft's website but the links were to be regarded as part of Heise's reporting because they were complementing and 'backing up' what was reported with additional information. The fact that the Heise was aware that the software offered on SlySoft's website was copyright infringing did not change this and so could not be blamed on Heise since the information interest of the general public was of higher importance.

The judges also argued that reports on illegal conduct (here: that SlySoft offering copyright infringing software) could be of particular public information interest. It was also important that Heise had clearly indicated in its report that SlySoft's software was copyright infringing. In this context the Bundesgerichtshof explained that protection of Article 5(1) Grundgesetz encompassed freedom of expression and freedom of media in all its aspects and was thus not limited to the content of the report, but it also included the (outer) form of this reporting. As such, it was up to Heise itself, as the subject entitled to the fundamental right under Article 5(1) Grundgesetz, to decide which form of presentation it chose for its reporting. This also encompassed the decision whether additional information about a company and its products (here: SlySoft) should be expressly used in the report and it could include the decision to publish links to SlySoft's website.

The court, inter alia, based its decision on Article 95 a German Copyright Act which is based on Article 6 of the Copyright Directive (Directive 2001/29/EC) (“Obligations as to technological measures”). Intriguingly, the Bundesgerichtshof interpreted Article 95 a German Copyright Act not only in the light of Article 5(1) Grundgesetz but also in light of Article 11 (1) of the Charter of Fundamental Rights of the European Union which stipulates as follows “(e)veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” Article 11 (2) provides that “(t)he freedom and pluralism of the media shall be respected.” Referring to the ECJ's precedent in Connolly/Commission (C-274/99 P), the Bundesgerichtshof also stressed that content and quality of a report are irrelevant when it comes to the application of Article 11 of the Charter of Fundamental Rights of the European Union.

This interesting decision can be retrieved from the Bundesgerichtshof's website here (in German).

Iconic IP and freedom of expression: the battle lies ahead

When laden ladenfam first saw Nadia Plesner's Darfurnica (above), his first thought was that it was designed to reflect the tragedy that recently unfolded in Darfur by recalling the imagery of what is arguably Pablo Picasso's most powerful work, Guernica (below), a graphic and shocking depiction of the horror of the bombing of the small Basque town of that name by German and Italian planes at the behest of the nationalist forces during the Spanish Civil War. The Kat's first thought was whether the estate of the late artist would approve of her work on account of its sentiment or object to it on account of its conceptual and visual similarities to Picasso's own work.

In all of these musings the Kat didn't even notice one of the details of Darfurnica which has brought her work to the attention of the law courts in first France and now the Netherlands: the handbag sporting a Community registered design registered in the name of luxury fashion accessory house Louis Vuitton (for details of the Community registered design and a handy discussion of some of the legal issues which divide artist and icon-maker, readers are recommended to sample Rosie Burbidge's neat post on Art & Artifice here).

The incorporation of intellectual property-protected works into later works is not new -- two famous example of trade marks incorporated into art works are Manet's Bar at the Folies-Bergere and Andy Warhol's Campbell Soup tin reproductions (both here) -- and it has surprised laden ladenfam that artists have not made more frequent use of the potent imagery of trade marks as cultural symbols.

Both Rosie's report and this recent post on Eyeteeth state that Nadia Plesner is bringing a counter-suit before a Dutch Court in The Hague on Wednesday 30 March, seeking to assert her freedom of expression under Article 10 of the European Convention on Human Rights, but the Kat has learned that there is to be an earlier hearing today at which Plesner's lawyers are challenging the appointment of the judge presiding over the hearing, the outcome of which will be keenly awaited.

While laden ladenfam deprecates all forms of intellectual property infringement in commerce and believes that the value of strong and enforceable IP rights is critical for the success of any commercial enterprise that competes with others in the market, he is unable to accept that any economic IP right, be it copyright, trade marks or designs, should be allowed to impinge on the genuine expression of an opinion: the use of a Vuitton image (and it could equally have been any of a number of other companies' images) works so powerfully in works such as Darfurnica because of the significance which the public itself places, and the meaning it gives, to icons and images which make IP rights valuable. Having one's iconic emblems used as icons is part of the price any company pays for creating and being able to exploit them commercially.

Merpel adds that she very much doubts that Nadia Plesner has done as much damage to Louis Vuitton's IP by incorporating it into her image as Vuitton has inflicted on itself by making such a fuss about it (and she's still chuckling over all that fuss the same company made over Chewy Vuiton, here).

What do you think?  There's an IPKat poll at the top of the weblog's sidebar, here.