If license terms provide for free use for "non-commercial" purposes, rights of use are then transferred for purely private purposes in case of doubt. This was the decision of the Regional Court of Cologne, which ordered a public radio station to pay damages (judgment of 05.03.2014 - 28 O 232/13). A parallel problem exists with the mixed business/private use of apps in the context of "Bring Your Own Device" (BYOD).
The court based its decision on the principles of the so-called transfer of purpose doctrine pursuant to Section 31 (5) UrhG. Accordingly, if the license agreement contains gaps or ambiguities with regard to the specific rights of use to be transferred, it must be investigated how an objectively reasonable third party would assess the transfer of rights. In case of doubt, it should be assumed that as many rights as possible should remain with the author in order to enable him to make the best possible commercial use of the work he has created. Or vice versa: In case of doubt, only those rights of use are transferred that are absolutely necessary to achieve the purpose of the contract.
In the specific case, a photographer had filed a lawsuit against the public radio station Deutschlandradio because it had used a photo of the plaintiff on its website to illustrate a report. The photographer had offered the image for free download on the photo platform Flickr. According to the information published there, the rights of use were transferred in accordance with the "Creative Commons Attribution-Non-Commercial 2.0" license agreement. Where relevant, this stipulates that the photo may only be used "non-commercially" and only if the photographer is credited.
Deutschlandradio now argued that as a public broadcaster, in contrast to private broadcasters, it is not commercially active and cited a corresponding definition from broadcasting law.
Nevertheless, the court ruled in favor of the photographer. According to the judges, it was out of the question to make a distinction between use by a private and a public broadcaster - and therefore non-commercial - in accordance with the doctrine of assignment of purpose. On a reasonable interpretation of the license conditions, these could not be understood in any other way than that the term "non-commercial" meant purely private use. The use on the website of a radio station was no longer covered by this and the use was therefore unlawful.
Apart from the specifics of the individual case, the ruling draws attention to the countless free offers on the internet, which are often enough used by companies without taking into account any restrictions of the underlying license agreements. This applies to images used on websites and advertising materials as well as the use of free mobile apps for smartphones and tablets, which are also used at least for business purposes in the context of BYOD. It is worth taking a look at the relevant license conditions.
