Axel Springer v. Eyeo: This time copyright

After Axel Springer failed with its own lawsuit, based on competition law claims, at the Federal Court of Justice(some information here), the publisher has now filed suit against the adblock operator Eyeo based on copyright law.

“Ad blockers change the programming codes of websites and thus directly interfere with the legally protected offer of publishers,” Axel Springer comments on the lawsuit.

Although I do not know the exact grounds for the lawsuit, this legal opinion is likely to be problematic at the very least and the lawsuit may be more of a PR stunt.

The basis of Axel Springer’s argumentation is probably § 69c UrhG (German Copyright Act)

The rightholder shall have the exclusive right to do or permit to be done the following:

1. the permanent or temporary reproduction, in whole or in part, of a computer program by any means and in any form. Insofar as loading, displaying, running, transferring or storing the computer program requires reproduction, these actions require the consent of the copyright holder;

2. the translation, editing, arrangement and other reworking of a computer program, as well as the reproduction of the results obtained. The rights of those who edit the program remain unaffected;

3. any form of distribution of the original of a computer program or of reproductions, including rental. If, with the consent of the rightholder, a copy of a computer program is put on the market in the territory of the European Union or of another Contracting State to the Agreement on the European Economic Area by way of sale, the distribution right with respect to such copy shall be exhausted with the exception of the rental right;

4. the communication to the public, by wire or wireless means, of a computer program, including making it available to the public in such a manner that it is accessible to members of the public from places and at times of their choosing.

However, since a browser plug-in does not interfere with the source code on Axel Springer’s servers, Axel Springer’s chain of argumentation and subsumption should be very exciting. I think it is difficult to justify. However, the barrier of § 69d II UrhG does not apply, which is why it remains an exciting legal question, also with regard to the problem of whether HTML code is really “software” and whether a normal news website exceeds the level of creation of copyright law.

Another point to be considered could be the provision of Section 14 UrhG. This norm codifies the protection of the author against distortion and other impairments of his work:

The author has the right to prohibit any distortion or other impairment of his work that is likely to jeopardize his legitimate intellectual or personal interests in the work.

While Section 13 UrhG ensures that the author is recognized, Section 14 UrhG demands respect for his work. However, it should be noted that a work is not protected from interference for its own sake, but to protect the intellectual and personal interests of the author. If a work is defaced, not only can the appreciation of the work be affected, but the “reputation and honor” of its author also suffer. However, whether this can also apply to websites that consist largely of text, among other things, is also likely to be an exciting question. The principle of balancing interests and the importance of the intellectual and personal interests of the author form the integrity protection deposited in the norm. However, the Cologne Higher Regional Court already ruled in the first round

“A copyright claim that an offering be used only as intended would amount to dictating to the user how to receive content.”

So whether Axel Springer will get involved in the discussion/legal issue again remains to be seen.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.