GERMANY Trends and Developments Contributed by: Thomas Nägele, Steffen Henn, Anke Hofmann and Serpil Dilbaz, SZA Schilling, Zutt & Anschütz
The relevant provision of the German Act on Copyright Section 59 – works in public places: • (1) It is permitted to reproduce, distribute and make available to the public works located permanently on public paths, roads or open spaces. In the case of buildings, this authori - sation only extends to the façade. The decision of the BGH The BGH ruled that aerial photographs taken by drones were not protected under the freedom of panorama as they were not taken from public paths, roads or open spaces as stated in Section 59 Para. 1 German Act on Copyright. According to BGH, such views are not part of the street scene perceptible to the general public. The use of an aerial device to take photographs from above is therefore not covered by the freedom of panorama. Consequently, the author’s legitimate interest in participating appropriately in the com - mercial exploitation of his work prevails in cases where the use is made from a perspective that is not accessible to the general public. Text and data mining In this ruling of 27 September 2024, the Regional Court of Hamburg was the first German court to address the question of whether a copyrighted image may be used to create an AI training data - set. The facts of the case The defendant is a non-profit association that provides data sets of image-text pairs to the public, free of charge, for training purposes in order to promote research with artificial intelli - gence (AI). The dataset contains approximately 5.85 billion image-text pairs and can be used to train generative AI. The defendant’s dataset also included a photograph taken by the plaintiff,
a professional photographer, which was down - loaded from the website of his picture agency. This website contained a notice prohibiting the distribution of its images by automated pro - grams. Thereafter, the plaintiff filed an injunc - tion against the defendant for using the image to create AI training datasets. The relevant provisions of the German Act on Copyright Section 44b – Text and Data Mining: • (1) “Text and data mining” means the auto - mated analysis of individual or several digital or digitised works for the purpose of gather - ing information, in particular regarding pat - terns, trends and correlations. • (2) It is permitted to reproduce lawfully acces - sible works in order to carry out text and data mining. Copies are to be deleted when they are no longer needed to carry out text and data mining. • (3) Uses in accordance with subsection (2) sentence 1 are permitted only if they have not been reserved by the rightholder. A reserva - tion of use in the case of works which are available online is effective only if it is made in a machine-readable format. Section 60d – text and data mining for of scien - tific research purposes: • (1) It is permitted to make reproductions to carry out text and data mining (section 44b (1) and (2) sentence 1) for scientific research purposes in accordance with the following provisions. • (2) Research organisations are authorised to make reproductions. “Research organisa - tions” means universities, research institutes and other establishments conducting scientif -
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