Tuesday, July 21, 2009

German court rules no such thing as "making available" right under German law

According to this report in "At last ... the 1709 Copyright Blog", a German court has ruled against EMI, holding that there is "No 'making available' without 'reproduction' " under German copyright law.

Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player


Alter_Fritz said...

Hi Ray, please note that your short headline is an incorrect summarization.

German copyrightlaw ( we abrivate it UrhG ;-) *does* provide the making available right as one of the exclusive rights! (it is called "Recht der öffentlichen Zugänglichmachung")

the court was simply saying that the right of making available can in this case not be separated from another set of rights that the video hosting company seems to have cleared beforehand with the royalty collecting agency GEMA. So the judges simply denied the royalty collecting agency to get two times a licensing fee!

Quote from the counsel's homepage:
The District Court stated that a specific kind of use could be licensed according to Sec. 31 (1) UrhG only if the kind of use qualified as sufficiently clearly separable, economically and technically autonomous and unitary use according to prevailing public understanding. Citing German jurisprudence, the District Court held that reproduction(s) were inherent to the making available of copyrighted works online and, thus, could not be separated from the right to make available."

Backgroundinfo by me:
the "making available" right was added some time back as a subparagraph (a) to the existing right of public performance. (§19)
So unfortunately German law *does* know the thing that your law does not know as exclusive right as I understand from reading YOUR respective section on law.cornell.edu.




joe shill said...

From the article (badly translated though it is), the impression I get is not that there is no "making available right", but that such a right cannot be separated from the "mechanical reproduction right", and that an existing online marketing site must be allowed to continue licensing copies without interference from a newly-created licensing body.

Anyone glean anything different?