How does Paper li deal with copyrights

Curation and Law - Legal Limits for Newsrooms and Content Curation on the Internet

Countless new content is created on the Internet every day. On Facebook, Youtube and numerous other social media services, users - in private as well as in business context - post texts, images or audio and video content every second.

Numerous curation services such as storify, paper.li, scoop.it & Co have made use of this development by offering tools that make it very easy or, in some cases, automatically offer, to publish (third-party) content in a structured form. In addition to the very successful platform Pinterest, for which I have already discussed the copyright issues in a post, more and more classic platforms such as Youtube or Twitter ensure that linked and thus curated content is also displayed on the user's own page in the context of a preview or completely.

Curation, i.e. the identification, organization and management of content, makes it easier in many cases to find and present relevant information and content in the daily increasing flood of content on the Internet and sometimes also supports your own search engine optimization (SEO). Experts on specific topics use a variety of different tools to regularly provide curated collections with correspondingly valuable sources that provide a good overview of specific topics.

In addition to the undeniable advantages of curation, the relevant basic features of copyright law should also be known. In many cases, not only legally unproblematic links to external content are displayed in the curation tools, but also text excerpts, preview images and sometimes even complete videos (e.g. from YouTube) or presentations (e.g. from Slideshare). In this respect, more and more users of such services and functions are asking themselves whether copyright regulations conflict with the specific use of content.

Since more and more companies are curating their own and third-party content on their own Internet platforms, often referred to as newsrooms, or using curating tools from third-party platforms, the basic features presented below are of particular relevance in the commercial sector due to potentially higher claims for damages.

It should be noted in advance of the following statements that these copyright principles primarily relate to the publication of curated content. The pure “collecting” of third-party content by the curator without making it accessible to third parties is partly subject to different legal bases, in particular in these cases the right to private copying (§ 53 UrhG) can legitimize the reproduction.

In the event of a publication, however, the following principles should always be observed.

I. Protectability of content on the Internet

First of all, it must be determined individually whether the content to be curated is protected by copyright at all. If it is not, its use is unproblematic in terms of copyright.

Whether there is copyright protection depends on the specific work.

While texts according to § 2 UrhG are only legally protected if they have a sufficient level of creativity, copyright protection can be assumed when transferring images or audio and video content - regardless of any "triviality" of the work.

If appropriately protected works are to be used, the restrictions of copyright law must be observed. Compliance with copyright law is completely independent of whether the work is marked as protected - e.g. by a copyright notice - or whether the user has assumed "permission" in good faith. According to case law, it is the responsibility of the user to ensure the legitimacy of use, otherwise he can be claimed for removal, omission and compensation.

II. Intervention in the rights of the author through content marketing

The above-mentioned claims of the author only exist if the curator has unlawfully interfered with the legally protected rights of the author. The rights to which the author is initially entitled are defined in §§ 16 ff. UrhG.

So it depends on how the curator uses the content.

From a copyright point of view, it is not a problem if the curator points out a “simple” link, i.e. the interested reader can click on the link on another website to access the third-party content. In contrast to the so-called “embedded link”, the legal admissibility of simple links has been clarified for many years by the so-called “paperboy judgment” of the Federal Court of Justice (judgment of July 17, 2003 - I ZR 259/00).

However, anyone who duplicates or distributes protected content is fundamentally in breach of copyright law. Duplication is to be assumed, for example, if a copy of protected content is actually stored on your own server.

Accordingly, in the case of curation, it can be crucial whether the respective service actually stores a copy of a protected content on the server or only displays it via so-called embedding. With embedding (e.g. with YouTube videos), the integration takes place in such a way that no physical copy of the files is created on the own server, but these are integrated in such a way that when the page is accessed by an Internet user, his browser is prompted to transfer the external content load directly from an external server to an assigned subsection on the screen (sometimes referred to as “framing”).

Even according to the correct view, it can be assumed that such embedding of content does not violate reproduction and distribution rights, it was somewhat controversial whether the embedding of third-party content in curation services might not violate the right to public access under Section 19a of the Copyright Act.

At least for YouTube videos, the Federal Court of Justice and the European Court of Justice assumed in current decisions from 2014 that such embedding of videos does not infringe any copyrights. According to this, the additional storage of third-party content on your own or a third-party server would be unlawful, but the technical integration - as described above - generally unproblematic. Since various lawyers (like me) consider this general assessment of the ECJ to be wrong, one should observe the further development in this regard.

III. Illegality of interference with copyright exploitation rights

Even if there has been an interference with a third-party right of exploitation (e.g. through a corresponding reproduction of the third-party content), the intervention of a legitimation (e.g. the so-called barriers) can lead to the specific use being permissible.

1. Legitimation via the right to quote (§ 51 UrhG)

A copyright infringement is ruled out - regardless of the above argument - if the use can be justified beyond the limit of the right to quote (§ 51 UrhG).

In fact, the right to quote - depending on the design - can legitimize curation if the specific requirements of Section 51 UrhG are observed.

It should be noted here that the requirements for a permissible quotation are often not known. In addition to naming the source, which is still often guaranteed, the content of the third-party content must also be dealt with (citation purpose), the scope of which must also be proportionate to the curated content. Anyone who wants to curate third-party content on the basis of the right to quote should know and observe the specific requirements of Section 51 UrhG.

2. Legitimation via terms of use

Numerous social networks have terms of service (ToS) according to which the user grants the operator relatively extensive rights of use to the content posted, which usually also legitimize sharing within the network (see, for example, Section 5 Twitter's ToS).

The terms of use therefore also legitimize third parties to use the content that has been permissibly posted on Twitter in accordance with Section 5. This also includes the use of the open interface (so-called API) from Twitter and applications created from it.

In this respect, it is conceivable that a curation service or newsroom will be "built" that legitimizes the curation of corresponding content via the respective rights clause in the terms of use.

However, the use of content from Twitter, Facebook & Co on another website or web presence will generally not be legitimized via the social networks' granting clause and can therefore lead to a copyright infringement.

3. Simple consent

In its much-noticed case law on Google image search, the Federal Court of Justice decided that anyone who publishes their images on the website without taking appropriate protective measures (specifically corresponding information in the meta text) against being read by search engines (so-called crawling) implies the use of their images in who consented to Google image search. The Federal Court of Justice extends these principles to typical acts of use on the Internet.

So far, there is no case law that curation is also to be viewed as a “normal act of use” or which limits might have to be observed in the case of curation. At the moment it seems rather unlikely that the courts would be willing to admit this argument to curation services or newsrooms, after all, the case law outlined above was also justified with the special importance of search engines for finding content on the Internet.

It is therefore rather not to be recommended to rely (solely) on this argumentation.

4. "But the content is public"

At the end of the consideration, the argument, often voiced by laypeople, should be evaluated that the content is publicly available for everyone on the Internet and in this respect may also be shared accordingly and thus also curated.

That argument is simply wrong. If and to the extent that the author has not consented to specific use by granting specific licenses (e.g. in the terms of use of social networks or via Creative Commons) or by simply giving consent, "all rights reserved" applies, i.e. the content may not be more relevant in terms of copyright Use way.

As often as the argument of the public, the admissibility of curation is justified with the argument that one would only present a preview and only bring readers to the foreign presence via a link.

In fact, this is certainly a correct argument: If the author is not bothered by the adoption of "his" content, he will of course not take action against it. But if it does, it will only depend on the above-mentioned copyright principles and not on whether the curation is perhaps more useful to the author.

5. Ancillary copyrights for press publishers

With regard to content curation, the ancillary copyright law for press publishers resolved in 2013 (§ 87 f - 87 h UrhG) was often cited as an obstacle. Unless one of the above-mentioned reasons for legitimation applies anyway, it must be said that the ancillary copyright for press publishers is ineffective anyway due to the lack of mandatory notification to the European Union (see “Ancillary copyright for press publishers is dead, it just doesn't know yet”). In this respect, this dubious right is fortunately no longer as relevant when assessing the admissibility of content curation.

III. Summary: content curation, newsrooms and copyright

In summary, it becomes clear that many curators and newsrooms are legally in a (dark) gray area. In fact, in this area, of course, the principle applies, where there is no plaintiff, there is no judge. In addition, many authors of curated content are often pleased that their content is carried on if the author is given the appropriate “credit” (aka link).

Especially when content curation is to be used on a larger scale, e.g. in the journalistic field, in which curation offers some exciting new options, some copyright principles should be observed. Otherwise there is a risk of “massive” copyright infringements

In addition, there are already some “special” Internet offers that make use of third-party content and continue to test the limits. Cases are definitely conceivable here, especially if the “curator” is commercially active by constantly taking over third-party content, in which the assertion of copyright claims appears legitimate.

For curators and newsrooms, the above principles show that corresponding offers can also be designed in a legally compliant manner if the above principles are observed. The indicated possibilities of designing applications that are based on the APIs of the social networks are also exciting.

Overall, these statements show - once again - that the regulations of the UrhG do not adequately regulate the pressing questions on the Internet and social media and that the case law is currently trying to eliminate these deficiencies as far as possible by means of legal training. Not all dishes always come up with interest-based solutions.

As mentioned last, a reform of the copyright law (also at European level) is necessary in view of the changed usage behavior and the new possibilities on the Internet. Since experience shows that such efforts take a long time, there will be nothing left for the people and companies affected to do so but to orientate themselves to the applicable principles.

If you are interested in the above-mentioned copyright principles, we are available for half-day or full-day workshops in which the essential questions are explained using numerous practical examples.

Further:

Copyright warning due to Facebook sharing causes (erroneous) wave of panic

Important decision of the ECJ - embedding of YouTube videos is not a copyright infringement