Can the user see the difference between license for personal use and license for public commercial performance? The court in Germany believes yes, the user should know and realize it, because he’s supposed to be professional. The user acquired a license as additional option to internet access and faced lawsuit from right holder for copyright infringement. The user believes he is not guilty. He has a license and he was told that the license he has acquired is enough to show sport events in his restaurant to all guests. The court did not agree.
One restaurant owner has acquired the access to pay TV. He placed television in the hall of restaurant and any guest of his restaurant could see sporting events. The operator of pay tv channel has two main type of licensing: for natural persons it offers license for personal non-commercial use and for business (mostly legal entities) it offers commercial public performance license. The restaurant owner has acquired license for personal non-commercial use. The inspection from operator’s side has revealed infringement of license conditions and fixated it.
The restaurant owner paid for his license for private use couple hundred euros. For the commercial public performance license he should pay about six thousand euros. Feel the difference. Therefore the operator believed the user has infringed the license conditions and copyright by the way of public demonstration of operator’s channel. Actually it’s all started from internet access. The restaurant owner has concluded agreement for internet access with internet provider. Under the agreement with internet provider there was additional option – access to sport channel, but for personal use.
The agreement with internet provider clearly stated that public performance, public demonstration, public access and/or commercial exploitation of the access to channel is forbidden and is infringement of agreement and infringement of third party’s rights (including copyright). So, internet provider has shifted all liability for copyright infringement to restaurant owner and warned him on consequences. Therefore the user should know what type of license he has acquired; he should at last read his agreement. But anyway, the operator has sued user.
There was also one moment. The user has called to operator and asked whether he can access the sport channel and place his television to the hall. The operator’s employee said “yes”. But the court has underlined, the employee did not know all circumstances. The employee did not know that the user publicly demonstrated the channel in his restaurant. The restaurant owner claimed he has clarified whether he needs something else and the operator’s employee has misled him, therefore the operator is liable for copyright infringement committed by the user. But the court did not agree with it.
The court believes the employee advised user on license without intention to mislead him, because employee did not know all circumstances. The user ought to know what kind of license he needs, he should understand the difference between two type of license and he must realize that the price for license for public commercial use can’t be as little as price for personal non-commercial use. The restaurant owner must by himself to check whether he has a proper license. The court believes the due diligence in relation to certain aspects of user’s business is user’s obligation and user has failed to execute his obligation, therefore he is guilty.
What concerns the sum of damages, the court has taken into account the price of license the user should acquire. The price would be approximately six thousand euro. The expenditures for the inspection the court refused to reimburse because the inspection was ordinary activity within the framework of employment contract. The inspection was in preventive purposes, the inspection wasn’t part of litigation.