No Licence for Save.tv

The operator of the online video recorder Save.tv cannot demand the conclusion of a contract with private television broadcasters for the retransmission of a 'cherry-picked programme'.

Save.tv offers an online video recorder. This is an online service in which users can record television broadcasts, store them in the cloud and subsequently watch them at any time, either online or offline on various devices such as smart TVs, tablets or PCs as often as they wish.

The operator of Save.tv demanded that a private broadcasting company conclude a licence agreement to enable the cable retransmission of its programme to the online video recorder. The OLG München had to decide whether Save.tv was entitled to demand the conclusion of such a licence agreement.

Court decision – Save.tv loses

By means of judgment of 03.06.2015 – 6 Sch 7/14 the OLG München dismissed Save.tv's action and rejected its claim for the conclusion of a licence agreement.

Whilst broadcasting companies and cable companies are in principle obliged to conclude an agreement on cable retransmission, provided there is no factually justified reason for refusing to conclude such an agreement, this presupposes that the work broadcast by a broadcasting company, which is embedded in a programme, is simultaneously, unchanged and in full retransmitted through cable systems.

If there is an absence of embedding in a programme, and only individual works are retransmitted to the public via cable, then cable retransmission is not present. The same applies if the retransmission of the programme is incomplete, because someone who limits themselves to retransmitting only the most popular broadcasts from one or more third-party programmes and in this way essentially compiles their own 'cherry-picked programme' should not benefit from the simplified acquisition of rights.

Conclusion

In the view of the OLG München, Save.tv cannot rely on the statutory obligation to conclude a contract due to the absence of cable retransmission. Accordingly, broadcasting companies are not obliged to conclude a corresponding licence agreement with Save.tv. However, broadcasting companies are free to consent to the retransmission.

The decision of the OLG München was confirmed by the decision of the BGH of 16.06.2016 – I ZR 132/15 by which the request for leave to appeal was rejected.