DECISION • COPYRIGHT LAW
Decision of the Supreme Court (Oberster Gerichtshof)
26 September 2017 – Case No. 4Ob81/17s
Copyright Act, Sec. 42(e) and (f) (Copyright Act Sec.
74(7)); German Copyright Act, Sec. 57
Ó Max Planck Institute for Innovation and Competition, Munich 2018
Keywords Illustrative function Á Photograph Á Free use of a work Á Non-essential
accessory work Á Reproduction Á Sensationalism
1. The purpose of the provision of Sec. 42(e) of the Copyright Act is to prevent
the necessity of obtaining the permission of the right holder when the
subject matter of the right is used only coincidentally or casually and
without a connection to the actual subject matter of the exploiting act and
thus the right holder’s interests are not affected.
2. To be ‘‘non-essential’’ within the meaning of Sec. 42(e) of the Copyright Act,
the accessory work must be an object that accrues even less than slight or
3. A pictorial quotation that is admissible under Sec. 42(f) of the Copyright
Act must recognisably serve the treatment of the copied work, for instance
as evidence or as an aid to one’s own presentation. An internal connection
must be created between one’s own work and the cited work. It must always
be asked whether the purpose of the citation could not also have been
fulﬁlled in a different way just as well, e.g. by obtaining the right holder’s
permission to use the subject matter of protection or by presenting the right
holder with their own words. Furthermore, it must also be tested whether
the denial of the free use of the work fulﬁls an urgent social need. This does
not include the mere gratiﬁcation of curiosity or sensationalism.
Translation by Allison Felmy.
IIC (2018) 49:596–600