In Austria, public broadcasting is considered “commercial” not only in the context of competition law, but also in the context of copyright law. And this also applies to their news broadcasts. The country’s Supreme Court (OGH) confirmed this in a recently published ruling (4 OB 125/24x) at the end of August. This is because the Austrian Broadcasting Corporation (ORF) showed a third-party video about the use of pepper spray by the Austrian Federal Police against protesters in a news broadcast; The author has posted his video online under the Creative Commons license CC BY-NC 4.0.
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NC means “non-commercial” in English, “non-commercial” in German. This license allows the work to be reproduced and distributed free of charge, even in edited form, provided this is not done for commercial purposes. In addition, appropriate copyright and rights information (“BY”) must be provided, reference to the Creative Commons license (CC) must be included, and information about any adaptations must be provided.
ORF sent excerpts and a screenshot of the video without contacting the author. The broadcaster also made reports with video available for viewing on its website and published articles about the police operation, including the video with a screenshot as the main image. The author was only partially named. ORF did not make license payments to the author, who then filed a lawsuit. They demanded a ceasefire and a fine of 5,000 euros.
ORF lost at first instance and appealed. The second instance reduced the payment to only 2,020 euros, but confirmed the violation of the law and the cease-and-desist order (Vienna Higher Regional Court of May 22, 2024, GZ 1 R 184/23w-22). ORF then wanted to persuade the Austrian Supreme Court to modify the decision.
ORF has commercial interests, including news
The Supreme Court rejected the application for lack of a significant legal question, but nevertheless maintained the basic principles regarding copyright: “The fact that the lower courts assumed that the defendants – particularly the largest in Austria Given his position as a media owner and his capacity as an advertising medium – he also had commercial interests when producing news broadcasts, why plaintiff’s videos were used “commercially” by defendants is not clear to anyone. Also fair in the case, the result of the lower courts here is also consistent with unfair competition law whereby the defendant broadcaster – particularly because of its financing through the sale of advertising time and program fees – is in competition with other media companies (e.g. 4 See OB 56/97G).
In the above mentioned competition law case, ORF, which was then broadcasting from Slovakia, became commercially successful in 1997. Radio CD International “Welcome Black Listeners!” To switch to banning print advertising. However, ORF can only compete with commercial private broadcasters if it is itself commercially active. In this respect it proves to be true Legal success against radio CDs Late, but still, as a boomerang.
In the present case, ORF tried to rely on the right to quote (section 42F URHG) and also section 42C URHG. The latter allows “the reproduction and distribution of works that make the reported events publicly comprehensible to the extent justified by the information purpose”. For example, this applies to actions that appear in the background, such as photo wallpaper, or when demonstrators hold a photograph in front of the camera – but not to the action itself that is reported. The OGH also rejects ORF’s request for a preliminary ruling from the European Court of Justice (ECJ), “because of the interpretation of Article 42C of the Copyright Act relating to the immunity granted to nation states.”
And the right to quote requires discussion of the cited work: “A quotation may not be used for the purpose of bringing the work to the attention of the general public.” Ultimately, ORF also fails in its request to further reduce the amount of money to be paid.
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