Streaming Recht: On-Demand Übertragung, § 19a UrhG | IT-Medienrecht

The On-Demand Transmission Right: Legal Classification and Licensing in Streaming

The term "on-demand transmission right" has been used for years to describe the user-specific transmission of works on the internet. Dogmatically, it is not codified as a separate exploitation right in German law. In practice, on-demand streaming is predominantly assigned to the right of making available to the public (Section 19a UrhG), which implements Article 3 paragraph 1 of the InfoSoc Directive. Reproduction rights (buffering, caching) and ancillary copyrights also apply.

For providers, this means that license packages for streaming must be considered in several layers. The specific requirements depend on the type of work, the rights chain, whether it's a live or on-demand model, the territories involved, and the technical modalities.

Dogmatics of On-Demand Streaming: "Retrieval Transfer" vs. Making Available to the Public (Section 19a UrhG)

Conceptual Understanding of "On-Demand Transmission"

"On-demand transmission" refers to the user-specific transfer of a work from the server to the end device. This concept emerged from literature discussing the convergence of broadcasting (Section 20 UrhG) and making available to the public (Section 19a UrhG). It describes transmission beyond mere provision on a server, encompassing the active retrieval by the user.

Codification and Prevailing View

The German Copyright Act does not recognize an independent "on-demand transmission right." Instead, the regulatory anchor for on-demand streaming is Section 19a UrhG. This section defines "making available to the public" as when a work is made available to members of the public from places and at times of their individual choice.

The ECJ case law on Article 3 paragraph 1 of the InfoSoc Directive interprets "communication to the public" in a technology-neutral manner. From a practical perspective, this means not only the "placing on the server" is relevant, but also the possibility of individual retrieval that this provision enables.

Opposing Views in Legal Literature

There is a debate among legal scholars about whether the data transfer itself (the "last step" from the server to the user) constitutes an independent exploitation right. Arguments often focus on license enforcement, control of delivery, territorial issues, and sanction mechanisms. However, the prevailing opinion assigns both the provision and the retrieval uniformly to Section 19a UrhG, arguing that a separate "retrieval transfer right" is not necessary.

The decisive factor remains: On-demand provision triggers Section 19a UrhG. In contrast, live transmission is regularly assigned to Section 20 UrhG (broadcasting right).

Differentiation from Section 20 UrhG (Broadcasting)

• Broadcasting right (Section 20 UrhG): This covers the simultaneous linear transmission to many recipients (e.g., traditional broadcast television, webcasts, or livestreams without individual choice of playback time).
• Section 19a UrhG: This applies to individual availability at any time (e.g., media libraries, video/audio-on-demand services, or social media libraries).

Hybrid forms, such as simultaneous broadcasting (simulcast) with subsequent media library availability, require mixed rights licensing.

Which Rights Streaming Actually Uses: Copyright and Ancillary Copyrights in a Package

Copyright Level

• Making available to the public (Section 19a UrhG): This is the core right for on-demand streaming use.
• Reproduction (Section 16 UrhG): This includes server copies, CDN copies, transcodings, thumbnails, and buffering processes.
• Temporary reproduction (Section 44a UrhG): This covers technical, ephemeral copies without independent economic significance, but only applies within the context of lawful use.
• Editing/Remodeling (Section 23 UrhG): Relevant for re-edits, mashups, and clips.
• Limitations (e.g., quotation Section 51, parody/pastiche Section 51a UrhG): These are practically relevant for User Generated Content (UGC) platforms.

Ancillary Copyrights (Selection)

• Sections 73 ff., 77 UrhG: Rights of performers (e.g., for recordings, on-demand use).
• Section 85 UrhG: Rights of producers of sound recordings (e.g., for reproduction, making available to the public).
• Section 94, Section 94a UrhG: Rights of film producers and press publishers.
• Section 87 UrhG: Rights of broadcasting organizations.

Collecting Societies Practice

• Musical works (minor rights): Regularly handled by GEMA for making available to the public/streaming. Depending on the constellation, additional individual rights clearance may be required.
• Performance protection (sound recordings): Handled by GVL or via direct label licenses.
• Film works: Generally require a direct license with rights holders/producers, with music shares often requiring additional clearances.
• Live vs. on-demand: A live stream often requires broadcasting rights plus GEMA. Permanent provision as per Section 19a UrhG requires additional rights.

Technical Copies and End Users: Section 44a, Section 53 UrhG and the Distinction Between Lawful/Unlawful Sources

Temporary Copies (Section 44a UrhG)

Streaming creates ephemeral copies on servers, in transcoding pipelines, CDNs, and on end devices (e.g., RAM, buffers). Section 44a UrhG only privileges these copies if they are temporary, transient or incidental, an integral part of a technical process, have no independent economic significance, and the act of use is lawful.

Private Copy (Section 53 UrhG)

Private copying from an obviously illegal source is not permitted for end users. At the EU level, case law has clarified that streaming from manifestly unlawful sources is neither covered by Article 5 paragraph 1 InfoSoc (temporary technical copies) nor by national private copying rules. For platforms, this implies due diligence obligations to prevent access to illegal sources (e.g., DSA processes, hash/URL blacklists, "trusted notifier" mechanisms).

Practical Consequences

Providers of lawful streaming services can factor in Section 44a UrhG and do not need to license every technical copy. Conversely, those who rely on illegal sources cannot invoke Section 44a UrhG; end users risk infringements and warnings. Rights holders can take action against intermediaries (e.g., hardware/software sellers, add-on platforms) if they deliberately promote access to illegal streams.

Live Streaming, Webcasting, Simulcast: Interfaces Between Section 20 and Section 19a UrhG

Live Broadcasts

Classic live streaming without a subsequent on-demand function falls under the broadcasting right (Section 20 UrhG). However, if a live stream is broadcast simultaneously and then remains available in a media library, both rights are utilized: broadcasting for the live phase and Section 19a UrhG for the on-demand phase.

Web Radio/Internet Radio

A linear stream is covered by Section 20 UrhG. The architecture of such broadcasts and the integration of works (e.g., music) require broadcasting and ancillary copyrights. If a playlist archive or "track replay" is offered, it falls under Section 19a UrhG.

Simulcast/Catch-up Services

When a TV signal or event stream is broadcast simultaneously via the internet (simulcast) and then made available as a catch-up service, contracts must account for dual licensing (broadcasting rights + making available to the public). Clear time slots, geo-blocking, and Digital Rights Management (DRM) are crucial aspects.

In short, live and on-demand models, even if technically merged onto one platform, must be structured separately under licensing law.

Territories, Rights Chains and Platform Contracts: From Rights Clearance to Technical Implementation

Territorial Principle Online

There is no general country-of-origin principle for pure on-demand services; licensing is territorial. Exceptions only apply to special regimes (e.g., Directive (EU) 2019/789 for online services of broadcasting organizations, or "ancillary online services"). International streaming projects must align rights portfolios (works, services) and territorial rights early on. Geo-blocking and rights enforcement (e.g., IP range control, payment gateways, app store territories) must be technically enforceable.

Chains of Rights

Contracts with authors, performers, producers, and labels must clearly define the type of use (on-demand streaming, download, clip use, trailer), end devices, interactivity, territories, term, time window, exclusivity, and revenue share. The purpose transfer doctrine (Section 31 (5) UrhG) is important: unclear clauses are interpreted narrowly. For AI-supported adaptations, remix/edit clauses and moral rights must be observed. For comprehensive rights clarity, understanding the chain of title in game development is essential, as similar principles apply to other media.

Platform Contracts (UGC & Pro-Publisher)

• UGC platform: Requires general terms and conditions regarding rights ownership, exemptions, notice-and-action processes (DSA), UrhDaG mechanics (presumably permitted, Sections 9-12), remuneration, advertising monetization, blocking/removal grounds, and resistance to overblocking. The Digital Services Act (DSA) significantly impacts these platforms.
• Pro-Publisher: Requires guarantees for clearance, DRM, Content ID/Matching (CMTA), reporting, netting/chargebacks, and audit rights.

Technical Enforcement

DRM, token gates, forensic watermarking, and fingerprinting are not substitutes for rights, but they are compliance tools for proof and abuse mitigation. Logs and provenance data provide crucial evidence.

Streaming Product Design: Thinking Right from the First Architectural Decision

Content Pipeline

Already in the Minimum Viable Product (MVP) phase, usage types ("live only", "live + catch-up", "pure VoD catalog"), territories, availability windows, and in-app features (clipping, download-to-go, offline cache) must be defined. These decisions directly influence license requirements. For instance, download-to-go typically goes beyond Section 44a UrhG and requires reproduction rights for permanent copies.

User Functions

Functions like clips, GIF export, audiograms, snippets, or screen recordings can quickly exceed contractually permitted use. The default approach should be "Narrow Rights": clip functions only for own content, re-uploads with automatic rights checks, and opt-ins for rights holders.

AI Features

Automatic transcription, chaptering, translation, or dubbing create adaptations (Section 23 UrhG) and utilize ancillary copyrights. Training and finetuning on user material requires separate permissions, as there is no tacit training permission. Exclusions (no-training flags) and earmarking must be contractually stipulated. For more insights, refer to best practices for AI editing of OnlyFans content & Instagram campaigns.

Compliance Checklist for 2025: Properly Securing Streaming Rights

1. Inventory of Works/Performances: Identify all types of content, including music, image, film, text, logos, performances, and archive footage.
2. Types of Use: Clearly distinguish between Live (Section 20 UrhG), On-demand (Section 19a UrhG), Download (Section 16 UrhG), and clips/re-edits (Section 23 UrhG).
3. Territories & Windows: Implement geo-blocking, define time windows for availability, and manage exclusivity.
4. Collecting Societies: Engage with GEMA (minor rights), GVL/Label, and other relevant collecting societies. Arrange individual clearances for major rights and film.
5. Technology Copies: Document the suitability of Section 44a UrhG. License off-device caches separately.
6. UGC Governance: Establish UrhDaG workflows (presumably permitted, de minimis limits), complaint processes (Section 14 UrhDaG), and DSA notice and action mechanisms.
7. Contractual Safeguards: Include rights chain guarantees, exemptions, audit/reporting clauses, DRM/watermarking obligations, and take-down SLAs. Ensuring robust contract design is critical for startups.
8. Evidence/Logging: Maintain upload/streaming logs, fingerprints, and timestamps. Implement legal hold procedures in the event of a dispute.
9. AI Use: Prohibit implied training permission; contractually map data and model governance.
10. Privacy by Design: Minimize telemetry and implement legal bases (GDPR) integratively, according to Article 25.

Disputes and Case Law: What to Consider When Providing Advice

Hyperlinks/Embeds

The line of EU case law on "communication to the public" distinguishes based on new audience or technical modality:

• Hyperlinks to freely accessible, lawfully published content are generally permissible. This is not the case for obviously illegal sources or circumvention of access barriers.
• Embedding/framing may constitute a new communication to the public, depending on the degree of circumvention involved.
• Streaming boxes/add-ons that systematically lead to illegal sources establish communication to the public for the providers. End users, in such cases, leave the protected areas of temporary copies.

Platform Liability

For pure hosting/sharing platforms in Germany, special UrhDaG rules apply (e.g., filtering, presumed permitted, complaint mechanisms). Online marketplaces not focused on content sharing must be examined differently under copyright law; liability depends on attribution and due diligence. The DSA supplements the liability framework procedurally, introducing reporting channels, transparency, and audits.

Practical Conflicts

• Music in game streams: Involves a bundle of rights consisting of works and ancillary copyrights. In-game music is not automatically "free" to use in streams.
• Fan edits/AMVs: Typically relevant under Section 23 UrhG. Limitations under Section 51/Section 51a UrhG apply narrowly.
• Archive footage: Often presents challenges due to "broken chains" of rights. Licensing is typically time and area-specific, with residual rights often held by third parties.

Conclusion: The On-Demand Transmission Right in Practice

The term "on-demand transmission right" is a useful working title for legal advice, enabling precise communication about on-demand transmissions. Legally, however, this use case is covered by Section 19a UrhG in conjunction with Sections 16, 44a, and the relevant ancillary copyrights. Key areas for effective legal counsel include developing clear license architectures, implementing robust technical enforcement (DRM, fingerprinting, geo-blocking), managing DSA/UrhDaG processes to prevent over- and underblocking, and designing solid contracts for AI functions, clips, and international territory portfolios.