GERMANY: Creating New Property Rights on the Basis of General Legal Concepts - Without Limits?

In two cases recently decided by two different senates of the German Federal Supreme Court (Bundesgerichtshof, BGH), the following issue was raised: To what extent can the filming of sports events organized by someone else, on the one hand, and the photographing of someone else’s physical property, on the other hand, be legally controlled by the organizer of the sports event and the owner of the property respectively? In its “Hartplatzhelden.de” decision, the first senate of the Federal Supreme Court concluded that the act of filming sports events does not constitute an act of unfair competition as such, and hence is allowed even without the consent of the organizer of the sports event in question. However, the fifth senate, in its “Prussian gardens and parks” decision, held that photographing someone else’s property is subject to the consent of the owner of the grounds, provided the photographs are taken from a spot situated on the owner’s property. In spite of their different outcomes, the two cases do not necessarily contradict each other. Rather, read together, they may well lead to an unwanted – and unjustified – extension of exclusive protection, thus creating a new “organizer’s” IP right.

The Implementation of the Audiovisual Media Services Directive by National Regulatory Authorities National Responses to Regulatory Challenges

The Audiovisual Media Services Directive (AVMSD) which regulates broadcasting and on-demand audiovisual media services is at the nexus of current discussions about the convergence of media. The Green Paper of the Commission of April 2013 reflects the struggle of the European Union to come to terms with the phenomenon of convergence and highlights current legal uncertainties. The (theoretical) quest for an appropriate and future-oriented regulatory framework at the European level may be contrasted to the practice of national regulatory authorities. When faced with new media services and new business models, national regulators will inevitably have to make decisions and choices that take into account providers’ interests to offer their services as well as viewers’ interests to receive information. This balancing act performed by national regulators may tip towards the former or latter depending on the national legal framework; social, political and economic considerations; as well as cultural perceptions. This paper thus examines how certain rules contained in the AVMSD are applied by national regulators. It focuses first on the definition of an on-demand audiovisual media service and its scope. Second, it analyses the measures adopted with a view to protection minors in on-demand services and third discusses national approaches towards the promotion of European works in on-demand services. It aims at underlining the significance of national regulatory authorities and the guidelines these adopt to clarify the rules of a key EU Directive of the “media law acquis”.

Under One Umbrella: Problems of Internet Retransmissions of Broadcasts and Implications for New Audiovisual Content Services

The development of broadband Internet connections has fostered new audiovisual media services and opened new possibilities for accessing broadcasts. The Internet retransmission case of TVCatchup before the CJEU was the first case concerning new technologies in the light of Art. 3.1. of the Information Society Directive. On the other side of the Atlantic the Aereo case reached the U.S. Supreme Court and challenged the interpretation of public performance rights. In both cases the recipients of the services could receive broadcast programs in a way alternative to traditional broadcasting channels including terrestrial broadcasting or cable transmission. The Aereo case raised the debate on the possible impact of the interpretation of copyright law in the context of the development of new technologies, particularly cloud based services. It is interesting to see whether any similar problems occur in the EU. The „umbrella” in the title refers to Art. 8 WCT, which covers digital and Internet transmission and constitutes the backrgound for the EU and the U.S. legal solutions. The article argues that no international standard for qualification of the discussed services exists.

Under One Umbrella: Problems of Internet Retransmissions of Broadcasts and Implications for New Audiovisual Content Services

The development of broadband Internet connections has fostered new audiovisual media services and opened new possibilities for accessing broadcasts. The Internet retransmission case of TVCatchup before the CJEU was the first case concerning new technologies in the light of Art. 3.1. of the Information Society Directive. On the other side of the Atlantic the Aereo case reached the U.S. Supreme Court and challenged the interpretation of public performance rights. In both cases the recipients of the services could receive broadcast programs in a way alternative to traditional broadcasting channels including terrestrial broadcasting or cable transmission. The Aereo case raised the debate on the possible impact of the interpretation of copyright law in the context of the development of new technologies, particularly cloud based services. It is interesting to see whether any similar problems occur in the EU. The „umbrella” in the title refers to Art. 8 WCT, which covers digital and Internet transmission and constitutes the backrgound for the EU and the U.S. legal solutions. The article argues that no international standard for qualification of the discussed services exists.