No privilege for online video recorders

The Regional Court (LG) Munich had recently to decide whether the recording of broadcasts with an online video recorder constitutes the production of private copies permitted under copyright law. In doing so, the court assessed in particular whether such could be privileged private copies if and insofar as the users did not themselves record the television programme to be recorded.

A company named YouTV GmbH offered its customers an internet portal where one could retrieve television broadcasts recorded by means of a kind of online video recorder. The user could thereby determine the beginning and end of the recording. The internet portal YouTV received the signals of the broadcasting companies and recorded all broadcasts permanently. YouTV did not have a licence for the reproduction of the television programmes.

Registration and use of the internet portal was free of charge for customers, as was the retrieval of broadcasts within 24 hours of transmission. An extension of retrieval to seven days was, however, subject to a charge for the user.

A broadcasting company took the view that there was unauthorised reproduction of its television broadcasts and demanded that the company cease the infringement of its copyright. YouTV, in turn, relied on the privilege of private copy in favour of its customers, which permits the reproduction of copyright-protected works for private use.

Decision of the court on the lawfulness of online video recorders

TheRegional Court (LG) Munich I decided by judgment of 28.09.2016 – AZ 37 O 1930/16, that YouTV must cease the copyright-infringing reproductions, since YouTV itself was the producer of the recordings and not its customers.

Although the users selected the programmes to be recorded on the internet portal, YouTV had control over the reproduction process, since only it could determine which broadcasts were recorded and subsequently deleted. As a result, YouTV and not the user was the producer of the reproduction. For it not only provided the technical means but also had organisational control over the subject-matter and scope of the reproduction. Furthermore, there was no permitted free production by a third party, since access after 24 hours was no longer free of charge and YouTV thus also had the intention of making a profit.

Conclusion

Only a user can rely on the copyright law exception of private copy if he reproduces copyright-protected works for private use. This is not the case with YouTV, since the customer does not provide the technical means for reproduction and has neither control nor organisational authority over the reproduction process. The mere selection of the television broadcasts to be recorded is not sufficient for this.