Right of quotation in exclusive interviews?

Is a television broadcaster permitted to broadcast an exclusive interview recorded by a competitor and already aired in its own television programme, or does this constitute a copyright infringement? The Federal Court of Justice (BGH) recently had to address this question.

The television broadcaster ProSiebenSat1 managed to arrange an exclusive interview with Liliana Matthäus about the state of her marriage with the former international football player. The interview was subsequently broadcast in the lifestyle programme "Stars & Stories".

The television broadcaster Vox subsequently attempted to acquire a licence for the video material from ProSiebenSat1 for its television programme "Prominent". However, Sat1 refused to grant such a licence. Nevertheless, Vox used various excerpts from the exclusive interview, citing the source, in the programme "Prominent".

ProSiebenSat1 then sued the television broadcaster Vox for injunction, information and reimbursement of cease-and-desist letter costs and prevailed at two instances. Vox appealed this decision by way of revision, which was now decided by the Federal Court of Justice (BGH).

Court decision

By judgment dated 17.12.2015 – Az. I ZR 69/14 (the Federal Court of Justice (BGH)Press release) – remitted the matter to the Higher Regional Court (OLG) for new hearing and decision, as, in the BGH's view, it had failed to establish all facts relevant to the dispute.

First, the BGH clarified that by partially taking over the material, Vox had in any case infringed the neighbouring right (a right similar to copyright). Whether this infringement was unlawful or whether the use of the exclusive interview could exceptionally be permitted in this case could not be decided without further findings of fact.

However, a justification for the violation of the neighbouring right could not be derived from the copyright limitation provision regarding reporting on current events, since it was reasonable for Vox to obtain the consent and licence of the rights holder before incorporating the video material into its programme "Prominent!".

Vox could, however, possibly rely on the so-called right of quotation. It would not be required, that Vox engage substantially with the reproduced work, that is, the exclusive interview. It would suffice that the third party's work appeared as the basis for discussion for independent statements by the quoting party. This was to be affirmed in the present dispute because the programmes of the defendant addressed the self-presentation of Liliana Matthäus in the media and the reproduced interview excerpts were used as evidence for this purpose. Whether the right of quotation was excluded because Vox had reproduced key scenes from the exclusive interview and thereby impaired the commercial exploitability of the work of ProSiebenSat1 was not sufficiently clarified by the findings of the lower court and must now be determined.

Conclusion

Under the Copyright Act, the reproduction, distribution and public performance of a published work for the purpose of quotation is permissible, provided that the use of the work in its scope is justified by the special purpose. According to the BGH's view, this is the case here because the self-presentation of footballer's wife Liliana Matthäus was the subject of the reporting and Vox used the excerpts from the exclusive interview as evidence. Whether Vox exceeded the limits in doing so and used too much of the work must now be determined.