In a very recent ruling of 31 October 2014, the Higher Regional Court of Cologne (“OLG”) has further defined the scope of “commercial use” within the meaning of the Creative Commons Licenses de.creativecommons.org. According to the OLG (Az. 6 U 60/14), the use of a picture licensed under the CC-BY-NC 2.0-License to illustrate an article on a radio station’s website is “non-commercial” use within the meaning of the CC-License, even if users pay for the website by paying radio license fees. The OLG further discusses the question, when cutting a picture into shape can be considered as “adaptation” within the meaning of the license.
The question behind the ruling was if a public German radio station, Deutschlandradio, was allowed to use a picture licensed under the Creative Commons Attribution Non Commercial License 2.0 (“CC-BY-NC 2.0”) to illustrate an article on Deutschlandradio’s website. The picture was also cut into shape, which inspired the OLG to discuss the scope of the right to adapt a work licensed under the respective license. Creative Commons-Licenses are pre-formulated copyright licenses which follow the idea of Open Access (see more here).
Whereas the court of first instance ruled in favor of the photographer (who was the plaintiff) with regard to the scope of commercial use, the OLG now stated that the use in question cannot be seen as a commercial use within the meaning of the CC-BY-NC. According to the court, this applies in spite of the fact that the offer on Deutschlandradio’s website was not for free. Despite this fact, which could lead to a “commercial” use and therefore to an infringement of the license, specialities of the German copyright law (and in particular the “Rundfunkstaatsvertrag” and an interpretation of “non-commercial” as “not profit oriented”) cannot be taken into account when interpreting a CC-License, since such licenses were not created to be used under German law. Rather, other jurisdictions and the ideas of the licensor have to be considered. All this lead the OLG to the conclusion that the use of the picture by Deutschlandradio was “non-commercial”.
The ruling is, despite an immense echo in press and blogs, not very surprising. It rather is a mere (and correct) application of the license text. Therefore, it is also not very surprising, that the Creative Commons Organisation agrees with the statements of the court.