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Using user generated content in Germany for purposes of news reporting

News organisations in Germany may use user generated content in accordance with German laws, however, they need to take a number of considerations into account.

May 2015

News organisations using user generated content (UGC) in Germany need, on the one hand to consider the circumstances of the initial publication of the content, including the particular social media site used. On the other hand, they should also take into account the context in which the UGC has been created and whether the rights of people who appear in it are sufficiently respected.

Relevant aspects of copyright law

German copyright law provides various defences which apply to news reporting.  In contrast with the position in the UK, these defences are not generally helpful as far as UGC published on social media is concerned. News organisations may be able to rely on the quotation defence. The scope of this defence is, however, limited and also requires crediting the author of the copyrighted work. In addition, as explained further below, embedding UGC on the website of a news organisation may, under certain circumstances, not be considered a relevant use under the Copyright Act in following a recent CJEU ruling.

Defences for news reporting

German copyright law provides a defence for use of works as part of news reporting on current events. This encompasses the reproduction, distribution and publication of those works which are perceivable as part of reporting on an event. By way of example, this defence may apply to the publication of a work of art as part of photographic or video footage covering an exhibition. It does not, however, apply to a review of that particular work of art. Furthermore, this defence does not, however, provide news organisations with grounds to use, for example, videos taken from social media sites to report breaking news given that these videos actually report on the event itself.

Another defence under German copyright law deals exclusively with the reproduction and distribution of "individual broadcasted pieces and individual articles as well as illustrations from newspapers and other sources of information which have the purposes of reporting on current affairs in other newspapers or information sources of this kind". This defence does not generally apply to content which has been published online.

Quotation defence

German copyright law provides a number of different defences to copyright infringement when quoting works. They range from quoting in academic works to including certain pieces of a musical work within another independent musical work and may also apply in the online context. In general, the cited work must only be used for the purpose of a quote, i.e. using parts of a work for the mere purpose of completing a statement will most likely not suffice. Rather, some material connection between the work and the quote needs to be shown. Furthermore, the quoted work must be recognisable as a quote.  This means any quoted UGC must stand out as a quote and the author must be credited.

Embedding content

In a recent ruling (BestWater International GmbH v Mebes, C-348/13) the CJEU clarified that embedding a copyright YouTube video on a website would not constitute copyright infringement if the original author or publisher had not used any access restrictions.  This means that, with regard to embedding a video on a news organisation's website, UGC which has been published previously on publicly available social media sites without any access restriction, like Twitter or Facebook pages available to all internet users, could be embedded. In such cases, the same audience (i.e. all internet users) were already taken into account by the author of the work when he/she initially disseminated it. If, however, UGC has been published online and is then used by a news organisation for publication in other media, for example in broadcasts or a newspaper, the CJEU's rationale will most likely not apply and there is a risk of copyright infringement.  These principles apply to uses of content across the EU.

Potential privacy issues

Aside from copyright law, news organisations should take into account how people who appear in UGC are depicted before publishing or broadcasting a piece. As a general principle of German privacy laws, the use of a person's image is only permitted with their consent. By way of exception, photo or video material which depicts individuals may be used where the image of a person is from the "sphere of contemporary history". This means that an exemption for people who appear often in public may be made. In general, this exemption will require an assessment on a case by case basis due to certain further limitations created by German case law. green fish leading goldfishFurthermore, another exemption allows for the use of photo or video material containing the image of a person, where that person only appears as an accessory in the background. Finally, photo or video material of public gatherings may be used even if the participants are depicted as long as the material centres on the gathering rather than being a mere image of a particular individual at that gathering.

In addition, any use of personal data of the author's UGC could raise issues under German data protection law if the content is not taken from a publicly available source. With regard to content from social media without an access restriction, like Twitter, Reddit and YouTube or Facebook pages that are open to all internet users, German data protection law provides for an exemption to allow use of personal data like names or other identifiable information.

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Thanos Rammos

Thanos looks at German copyright law and other regulatory issues in the context of UGC in news reporting.

"German copyright law provides various defences which apply to news reporting. In contrast with the position in the UK, these defences are not generally helpful as far as UGC published on social media is concerned."