Dispute over Use of Broadcast Excerpts – Background of the Event between Bild TV, ARD and ZDF
Following the 2021 Bundestag election, ARD broadcast the so-called “Berlin Round”, an established political discussion format with representatives of leading parties. Similarly extensive reporting was also conducted by ZDF and Phoenix. Bild TV, a private news channel, independently aired a special program on election night, during which excerpts from the “Berlin Round” were adopted and broadcast – without a separate licensing or other approval from the public broadcasters beforehand.
Against this background, ARD asserted copyright claims through the joint institution ARD-Werbung SALES & SERVICES GmbH, demanding the broadcast and distribution of the respective passages be stopped. Subsequently, the Cologne District Court and then the Cologne Higher Regional Court in the second instance dealt with the question of whether Bild TV was allowed to broadcast the relevant sequences from the “Berlin Round” (Judgment of September 30, 2022, Ref. 6 U 61/22).
Copyright Protection and Balancing of Interests
Classification of the Broadcast as a Protected Work and Legal Consequences
The Cologne Higher Regional Court first determined that the production of the “Berlin Round” constitutes a cinematographic work protected by copyright. It highlighted the specific design – particularly the thematic design, dramatic planning, and artistic-journalistic implementation – as essential features suggesting eligibility for protection under § 2 para. 1 no. 6 and § 95 of the Copyright Act. The broadcasting right, which originally lies with the respective broadcasting company (§ 87 Copyright Act), can also be asserted for broadcast cinematographic works, so that the infringement of broadcasting rights constitutes a claim for cessation.
Limitations of Copyright – Boundaries of Free Reporting
Bild TV referred to the copyright limitation regulation for current reporting under § 50 Copyright Act, which allows the use of work quotations in reporting on current events. However, the court denied the application of this limitation. It argued that the broadcast passages of the “Berlin Round” largely exceeded what was necessary to illustrate the current occasion, and there was no sufficient journalistic engagement with the original work. The purely excerpted use lacked the necessary independent contribution in the context of reporting. Comprehensive, unlimited adoption of entire parts of the work to enhance the attractiveness of one’s own program is not covered by the limitation of § 50 Copyright Act.
In connection with § 51 Copyright Act (“Right of Quotation”), it was also clarified that the relevant passages did not exhibit sufficient engagement with the adopted material and in their quantity and orientation were classified as an impermissible adoption.
Balancing Interests and Significance for Private Media Providers
The Cologne Higher Regional Court emphasized in its decision the conflict between copyright protection of public services and the interest of private media companies in comprehensive reporting. The crucial balancing of interests, however, should favor the rights holders as long as basic copyright principles are violated by unlicensed adoption of original content.
Consequences of the Judgment and Industry-Specific Considerations
Impact on the Licensing Practice of Audiovisual Content
The decision of the Cologne Higher Regional Court underscores the necessity to evaluate copyrighted television formats technically only after obtaining the corresponding rights transfers. Private broadcasters must exercise their editorial freedom within the framework of statutory provisions, without exploiting other broadcasts for their own purposes without a license or legitimate limitation.
Significance for Current Event Formats and Media Competition
The judgment is particularly relevant for reporting in connection with current major events such as elections, party conferences, or special situations in political discourse. It clarifies the boundaries between the permissibility and excess of copyright limitations in the context of overlapping broadcasting formats, thus setting a significant framework for distinguishing between permissible use and license-required adoption.
Notes on Ongoing Proceedings and Appealability
Since similar scenarios can occur nationwide, a case-by-case examination of the respective factual and legal situation is required. As long as the final legal force of the decision is not yet established or appeals have been lodged in this regard, the presumption of innocence continues to apply to the parties involved. Sources: Cologne Higher Regional Court, Judgment of 30.09.2022, Ref. 6 U 61/22.
Summary and Outlook – Rights Acquisition and Limitations in Focus
The judgment illuminates the complex interplay between the copyright-protected interests of public broadcasters and the freedoms of private media providers. The decision of the Cologne Higher Regional Court reaffirms the importance of clear licensing and sets narrow limits for third parties to invoke limitation regulations. For companies, media actors, and rights marketers, the event highlights that a deep understanding of copyright parameters and careful examination of existing usage rights are of central relevance.
If legal challenges arise in the context of work usage, broadcasting rights, or limitation regulations, an individual assessment of the respective starting situation is recommended. Further information and personal support can be obtained through the copyright law counsel at MTR Legal Attorneys.
