The Düsseldorf Oberlandesgericht (Appeal Court) was faced with
a case claiming unfair competition and copyright infringement
in the following circumstances. The defendant operated a service
to permit incorporation of newspaper articles into an electronic
database in which it scanned and archived such articles as supplied
and designated by its clients and returned the digitized, archived
version to its clients. The defendant's copy of the article was
then deleted. The plaintiff was a newspaper publisher who also
provided articles from its newspapers in an on-line database,
for the use of which it made a charge. At first instance the
plaintiff's claims had been dismissed on the grounds that the
parties were not in competition and that the Copyright Law itself
permitted the making of a limited number of reproductions and
the defendant's acts fell within this permission. In the case
of Re Copyright in Newspaper Articles Offered On-Line the appeal
court disagreed. On the question of unfair competition, the court
concluded that the service provided by the defendant was likely
to have an adverse effect on the sale of the plaintiff's newspapers
because the speed with which it supplied digitized copies was
such that its clients could then supply copies of articles of
interest to their own employees over their own in-house networks
thereby reducing the number of papers that such clients needed
to buy. This was in effect directly borrowing the services of
others and therefore actionable under the Unfair Competition Law.
So far as copyright infringement was concerned, the exception
in the copyright law noted by the lower court did not apply to
copies for electronic archiving. Section 53(2) of the German
Copyright Law reads as follows:
It shall be permissible to make or cause to be made single copies
of a work ... (2) to be included in personal files, if and to
the extent that reproduction for this purpose is necessary and
if a personal copy of the work is used as the model for reproduction
. . . .
The appeal court held that this provision did not apply to creation
of an electronic database for two reasons. The first was because
in order to scan and incorporate an article into an electronic
database several copies were made by the computer at various stages
of the procedure. The second was that because electronic archiving
was so much more potent than paper or microfilm archives any permission
for incorporation of materials protected by copyright in such
a database without payment to the copyright owner must, because
of its implications, be enacted by the legislature.
March 1999 Index