Copyright: ORF news is considered commercial

In Austria, public service broadcasting is not only considered "commercial" under competition law, but also under copyright law. And this also applies to its news programs. This was confirmed by the country's Supreme Court (OGH) in a recently published decision from the end of August (4 Ob 125/24x). The reason for this was that the Austrian Broadcasting Corporation (ORF) had shown a third-party video of pepper spray used by the Austrian Federal Police against demonstrators in news broadcasts; the author had posted his video online under the Creative Commons license CC BY-NC 4.0.

NC stands for "non-commercial". This license therefore allows the work to be reproduced and redistributed free of charge, even in edited form, as long as it is not for commercial purposes. In addition, appropriate copyright and rights information must be provided ("BY"), a reference to the Creative Commons (CC) license must be included and information about any adaptations must be provided.

ORF broadcast excerpts of the video and a screenshot without contacting the author beforehand. In addition, the broadcaster made reports with the video available on its website and published articles about the police operation including the video, with the screenshot as the lead image. The author was only partially named. ORF did not make a license payment to the author, who then filed a lawsuit. He demanded an injunction and a good 5,000 euros.

ORF lost at first instance and appealed. Although the second instance reduced the payment to just EUR 2,020, it confirmed the infringement and injunction (Vienna Higher Regional Court of 22 May 2024, GZ 1 R 184/23w-22). ORF then sought to have the Austrian Supreme Court review the ruling.

ORF has business interests, even with news

The Supreme Court rejected the application due to the lack of a significant legal issue, but nevertheless made the following fundamental points regarding copyright law: "The fact that the lower courts assumed that the defendant – in particular in view of its position as Austria's largest media owner and its capacity as an advertising medium – also had business interests in the production of news programs, which is why the plaintiff's video was used "commercially" by the defendant, is in any case justifiable. The result of the lower courts here also corresponds with the case law on unfair competition, according to which the defendant broadcasting company – is in competition with other media companies, in particular due to its financing through the sale of advertising time and program fees – (cf. e.g. 4 Ob 56/97g)."

In the competition law case mentioned above, the ORF succeeded in 1997 in prohibiting the commercial Radio[ ]CD[ ]International, which was broadcasting from Slovakia at the time, from placing print advertising with "Schwarzhörer willkommen!". However, the ORF can only compete with commercial private broadcasters if it is also commercially active itself. In this respect, the legal success against Radio CD is proving to be a boomerang.

In the current case, ORF also tried to rely on the right to quote (Section 42f UrhG) and Section 42c UrhG. The latter permits the reproduction and distribution of "works that become publicly perceptible during events that are reported on, to an extent justified by the information purpose". This applies, for example, to works that appear in the background, such as photographic wallpaper, or when demonstrators hold a photograph up to the camera – but not to a work that is itself the reporting. The Supreme Court also rejected ORF's request for a preliminary ruling from the European Court of Justice (ECJ) "because the interpretation of Section 42c UrhG concerns a margin of discretion granted to the nation states."

And the right to quote requires an examination of the quoted work: "A quote may not be used for the purpose of bringing the work to the attention of the general public for its own sake." Finally, the ORF also failed with its request to further reduce the amount of money to be paid.

• Austrian Supreme Court decision 4 Ob 125/24x of August 27, 202

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