Abstracts and the Internet
And one thing many of us would like to spend more time doing is reading lengthy reviews of books in the national newspapers. This has prompted some adventurous Internet entrepreneurs to offer abstracts of these sometimes lengthy reviews in the form of concise summaries on the Internet platform www.perlentaucher.de, a site that offers not only these abstracts, but is also an online cultural magazine.
However, since these abstracts almost necessarily borrow the reviews’ most original phrases and also quote from them in order to give the reader an idea of what the critic intended to say, for many users, the site has become a kind of substitute for reading the newspapers in which the original reviews were published. Moreover, the owners of the Perlentaucher site sought to commercialise the abstracts and licensed them to other sites such as www. amazon.de for use in connection with online book sales.
One of the most prestigious of German national daily newspapers, the Frankfurter Allgemeine Zeitung, sued the owner of the Perlentaucher site for copyright and trademark infringement. It argued that the licensing of the abstracts infringed its copyright to the original reviews published in its newspaper. The use of the name Frankfurter Allgemeine Zeitung, or FAZ, in the context of the abstracts was criticised as an infringement of the registered trademarks ‘Frankfurter Allgemeine Zeitung für Deutschland’ and ‘FAZ’.
The Frankfurt Court of Appeal held that neither the newspaper’s copyright nor its trademarks were infringed. On copyright, the court argued that the abstracts had to be seen as a free use (German Copyrights Act, Section 23) of the original review, and not an adaptation of the original, which required the copyright owner’s prior consent for publishing (Section 24). The court reasoned that the usual standard for determining whether an abstract was a free use or a mere adaptation should not be applied to this case.
“The standard should therefore be whether the abstract keeps such a significant distance from the original review that it may be viewed as an independent and new piece of work.”
The usual standard is whether the decisive features of the original can still be found in the abstract. That standard was useless in this case since the purpose of the abstracts was to reflect the original as truthfully as possible in the first place. The Frankfurt court substituted this legal standard and argued that the more concise and compacted the abstract—while reflecting truthfully the original content of the review—the more likely it was that the abstract was an original piece of work that constituted free use of the original.
Also, according to the court, the number of quotes from the original was not decisive for determining the free use issue, since the quote of mere descriptive language did not contradict free use. Instead, it mattered whether the more original phrases of the original review were copied. Another relevant question, according to the Frankfurt court, was whether the abstract could be seen as a substitute for the original review.
The plaintiff sought the revision of this decision of the Court of Appeal before the Federal Supreme Court. The Federal Supreme Court, with a decision handed down on December 1, 2010, reversed the Court of Appeal’s decision on the copyright issue. It argued that the standard for distinguishing free use from an adaptation of the original should not be different in this case.
The standard should therefore be whether the abstract keeps such a significant distance from the original review that it may be viewed as an independent and new piece of work. In applying this standard to the case at hand, the Federal Supreme Court criticised the Frankfurt court for not sufficiently considering that some of the abstracts borrowed heavily from the most original phrases in the reviews. Some phrases were copied nearly identically in the abstracts.
Under these circumstances, the case was remitted back to the Court of Appeal in order to determine the extent to which the different abstracts borrowed (or copied) the text and phrases from the reviews. Furthermore, the question of whether the abstract would be treated as a substitute was held to have no relevance for the issue at hand.
As for the trademark aspect of this case, the Frankfurt Court of Appeal had held that the use of Frankfurter Allgemeine Zeitung or FAZ did not infringe the plaintiff’s trademarks. The German Trademarks Act provides that the use of a trademark may not be prohibited if the trademark is used as an indication for the features of a certain product (Section 23). The Frankfurt court held that this exception to the protection of trademarks applied here. The Federal Supreme Court affirmed the appeals court on this issue.
Jens Künzel, LLM, is a partner at Krieger Mes & Graf v. der Groeben. He can be contacted at: jens.kuenzel@krieger-mes.de
