OGH: Copyright Restrictions for Video Publications

Oct 4, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled on the commercial use of private videos by public broadcasters.

The plaintiff is a freelance journalist and regularly documents public demonstrations with video and audio recordings. In 2022, a demonstration known as the ‘March for the Family’ as well as a counter-demonstration were held in Vienna. The participants in the counter-demonstration did not comply with the police’s request to keep their distance from the March for the Family demonstration, whereupon the police used pepper spray against the counter-demonstrators, which was filmed by the plaintiff.

The plaintiff published an excerpt of the video as well as a screenshot on his Twitter account and stipulated that the material may be used for non-commercial purposes, but his (the publisher’s) name must be mentioned.

The defendant (a public broadcasting company) published excerpts of the video and the photograph in several news programmes covering the demonstrations and the police operation, but without first contacting the plaintiff.

The plaintiff then sought injunctive relief and payment of appropriate remuneration pursuant to Section 86 of the Austrian Copyright Act (Urheberrechtsgesetz, hereinafter UrhG) and damages pursuant to Section 87 (3) of the UrhG, arguing that use of his material was covered, on the one hand, by licence rules and, on the other hand, by Sections 42c and 42f of the UrhG.

The lower courts granted the injunction request in full and the payment demand in part. The OGH, however, came to the following conclusion:

In view of its position as a major media owner in Austria, the defendant broadcasting company can be assumed to have business interests in the production of news programmes. Therefore, the stance that the plaintiff’s video footage was used commercially by the defendant is justifiable.

The use of the footage in the defendant’s TV reports did not even come close to being a mere ‘quotation’ of the image. There is no evidence of interaction with the work or of a direct and close connection between the plaintiff’s work and the defendant’s reports. For these reasons alone, the defendant’s use of the video material cannot be based on the ‘right to quote’ according to Section 42f of the UrhG.

OGH 4 Ob 125/24x (27 August 2024)