When reporting on these debates, the question arises for the media as to whether the copyright exception of free use of works may apply and thus whether excerpts may be taken and distributed in their own medium without the consent of the medium organizing and broadcasting the debate. The Supreme Court (OGH) had to deal with this issue in a case concerning the 2022 presidential election.
The plaintiff broadcaster aired the discussion program "Round of the Challengers". One of the candidates published a video on his YouTube channel which also contained a 24-second excerpt from the plaintiff's program. The defendant, which is also the organizer of a TV channel, broadcast this contribution by the presidential candidate on its channel, including the excerpt of the plaintiff's broadcast contained therein, and also made it available for retrieval on its website. In the proceedings, the defendant argued that "it was a permissible report on current events and therefore a free use of work or a permissible quotation".
Like the lower courts, the Supreme Court did not follow this reasoning and denied the existence of free use of a work. The panel discussion broadcast by the plaintiff is not to be assessed as a "daily event, because such an event can only be the election of the Federal President himself or, at best, the candidate's balance sheet, but not a video published about it". The Supreme Court also pointed out that the purpose of the information, namely reporting on the candidate's résumé, did not require the use of the excerpt from the plaintiff's broadcast. With regard to the image citation cited by the defendant, the Supreme Court referred to the legal requirement for the admissibility of the publication of photographs as an image citation that "the image citation and supporting document function reproduced in the reports and did not merely serve to illustrate the reporting in order to draw the reader's attention to the report".
In this case, the defendant could, for example, also have presented the content of the excerpt of the plaintiff's program in its own words. As a result, the use of the plaintiff's broadcast excerpt by the defendant without the plaintiff's consent was therefore inadmissible.
This article was first published in the magazine "Horizont" on 31.01.2024.