When can you post excerpts from or links to a newspaper article, pictures, or tweets online in Germany without fear of being sued?
The answer is more complex than you might think, especially if you’re used to the more freewheeling online culture of the United States or the UK. The Internet is abuzz with debate about the new EU Copyright directive, which was recently voted out of committee. Yet many of the restrictions people fear will grow out of the EU directive already apply, in some form, in Germany.
An example: German newspapers rarely provide in-line links in their online pieces to anything except their own articles. At first glance, this would seem to be against best practices. The reader deserves a link to whatever source the article is discussing, so that source can get proper credit and the reader can verify the article is discussing it accurately. American and British newspaper articles usually contain dozens of links.
Why do German newspapers persist in this frustrating practice? The main reason is Germany’s law concerning copyrights and artistic creation, which creates some rules which can seem downright bizarre to most foreign observers.
A solid, succinct German source on this area is this interview (g) with media lawyer Dr. Thomas Schwenke, published on the PR-Doktor website run by Dr. Kerstin Hoffman (g) who is a public-relations consultant. Lots of my discussion will be based on this site, but I won’t quote directly from it, for reasons which will become clear. Let me just make clear that nothing in this post, or any post I cite or link to, is legal advice.
With that out of the way, first question: Is it legal to quote a newspaper article or literary work on your blog? If it’s not protected by copyright (Urheberrecht — literally, the right of the creator), then you can post whatever you wish. Very old works of literature or news articles will usually be in the public domain. You may also usually embed a video or picture if the original website makes that possible, since making a video embeddable basically invites you to, well, embed it. But you must use the original link, not simply a copy-and-paste function.
If the article is protected by copyright, though, special rules apply. Most recent literary works, newspaper articles, or essays will be protected automatically by German copyright law. Even many much older works are protected. The safest rule is to always assume it’s copyrighted unless you know otherwise.
What if it is copyrighted? This is where things get tricky. There is no broad “fair use” exception in Germany as there is in the USA. There is only a limited “right to quote” (Zitierrecht). You may copy the title of the newspaper article, but not more than one or two sentences of the original. This means a single tweet with a quotation from a newspaper article will generally be authorized, since Tweets by definition can’t contain more than one or two sentences.
Even if you limit yourself only to one or two sentences, you can still run afoul of German copyright law, if those sentences contain such distinctive or unique creative wordplay (Schöpfungshöhe) that quoting them — even as brief excerpts — amounts to stealing someone else’s original idea. The only portions of a newspaper article which may be quoted at length are routine descriptions of facts and events, with no unique framing or spin.
Pictures are virtually always protected by copyright, so using someone else’s picture in your blog post can lead to liability — even if you identify the picture’s source. Ambitious art photographs or sketches are protected for 70 years after the author’s death, and even simple snapshots without special claim to artistic merit are protected for 50 years. But that’s not all — if another work of art is present in the photograph, then even if the photograph itself is not protected, the work of art represented in it may still be.
If you want to quote more than a few sentences, or use someone else’s picture, you’ll need to ask for permission if you want to be 100% certain. Or you can invoke the “right to quote” from Section 51 of the German Copyright Act:
It shall be permissible to reproduce, distribute and communicate to the public a published work for the purpose of quotation so far as such use is justified to that extent by the particular purpose. This shall be permissible in particular where
1. subsequent to publication individual works are included in an independent scientific work for the purpose of explaining the contents,
2. subsequent to publication passages from a work are quoted in an independent work of language,
3. individual passages from a released musical work are quoted in an independent musical work.
The authorisation to quote under the first and second sentences includes the use of an illustration or other reproduction of the cited work, even if this is itself protected by copyright or a related right.
Exception number 2 is the relevant one for bloggers. German courts have held that this provision lets an author can cite short quotations or images if “necessary” for the “intellectual debate” (geistige Auseinandersetzung) in which the author is engaged. That is, you may quote from a poem, or reproduce a picture, if the words used in the poem, or the picture itself, are either the very subject of the piece (as with a review), or central to what you’re talking about. To qualify for this exception, you must engage in a genuine discussion of what you quoted, not just a few casual remarks. A “rule of thumb” from a Dr. Schwenke (g) is that the quoted text cannot comprise more than 1/3 of your new text, and that you cannot copy more than 1/3 of what you’re quoting. Another twist is that German law doesn’t recognize a ‘good-faith’ exception for copyright violations — if you genuinely believed the material was public domain, or that you had a right to use it, this won’t help you if it turns out you were wrong.
Even links can lead to liability for copyright infringement. In 2016, the European Court of Justice handed down a decision (g) which made waves in media-law circles. A Dutch scandal sheet had published an article on its website which included links to nude pictures of a Dutch actress which were to appear later in Playboy. The pictures had been leaked without the consent of the photographer. The case made its way to the European Court of Justice. (Interestingly, Germany intervened before the ECJ on the side of the Dutch website, in the name of free speech.)
The Court held that the website was responsible for the “communication to the public” of the illegally leaked photographs, even though it only provided a hyperlink to the site which actually hosted them. The key factor, the Court decided, was whether the link was posted from a profit motive:
Furthermore, when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder.
This imposes a clear duty to research on for-profit websites to independently research whether links posted on their sites lead to copyright-infringing material. This is the main reason German newspapers never provide links in their online offerings — they’re afraid of liability. However, the general interpretation of “for-profit” websites is extremely broad, and applies to virtually all freelancers and companies, not just for-profit media companies. The ECJ decision spurred a great deal of critical commentary, and German courts have recently rejected some of the more drastic interpretations of it — for instance, the Federal Court of Justice ruled in 2017 (g) that Google could not be expected to check whether every single result of an image search was copyright-free.
More relaxed rules apply to purely private persons. They will only be liable in two situations. First, in case the person was been asked to take an image or quotation down, given proof that it is in fact copyright-protected, yet even then, refused to remove the offending material. Another situation is if a private person links to websites which are blatantly illegal, such as illegal streaming websites.
German libertarian and “copyleft” advocates find these rules far too strict, and oppose the new EU copyright regime because it follows generally similar principles. The main problem, in my view, is not necessarily the rules themselves, but the unpredictability of how they’re applied. The rules raise any number of difficult questions: What is a sufficient level of “intellectual engagement” with a work you’re quoting? When is a quotation sufficiently “distinctively creative” that it deserves protection? Who owns the rights to the image on a 50-year-old postcard I found at a flea market and want to post online?
Adding to the problem are German “warning-letter lawyers” (g) (Abmahnanwälte). This is a distinctive class of lawyers who specialize in sending letters to anyone they think has violated privacy or copyright or other laws, demanding large sums of money. Some of this activity is legitimate — there’s nothing wrong with a lawyer asking for compensation for a client whose legal rights have been violated. However, certain notorious lawyers simply troll for picayune violations, and send out demands on a large scale.
Their business model is to cast as wide a net as possible — if 5 out of 100 recipients pay in full just to make the problem go away, the lawyers can eke out a meager profit even if the other 95 ignore or challenge the demands. Never take the letter at face value. The claimed violation is often invented or exaggerated, and even if it exists, the damages are often far beyond what a court would impose after a trial. These “warning-letter” lawyers are hugely unpopular, and their existence is one of the most commonly-cited problems with the German legal system. There’s even a thorough website (g) devoted to explaining how these lawyers work and what to do if you’re contacted by one. Suffice it to say that if you get a letter from one of these lawyers, do not respond on your own — find your own lawyer. You’ll often discover that a proper reply will make them go away.