The Higher Regional Court of Frankfurt (“OLG”, 11 U 36/18) has commented on the question of whether a reproduction within the meaning of Section 69c No. 1 UrhG also exists if the use of software by way of cloud computing leads to a (technical) reproduction not on computers in the user’s domain, but on third-party servers that are within the sphere of influence of the authorized user.
This question has not yet been decided by the highest court. Some of the literature is of the opinion that there is no reproduction by the user if the accessing client does not receive a copy in the main memory of his computer or if the program is reproduced exclusively on the server of the service provider.
In general, the loading of a program into the RAM of another computer constitutes a reproduction within the meaning of Section 69c No. 1 of the German Copyright Act (UrhG). The main idea is that this loading of a program into the RAM of a computer enables further use of the program by means of further program copies.
The OLG is now of the opinion that the answer to the question of whether cloud computing constitutes an act of copying relevant under copyright law cannot be made dependent solely on the sphere of influence of the computer on which the copying takes place.
According to Section 69c No. 1 Sentence 2 UrhG, the consent of the copyright holder is always required if the “loading, displaying, running, transferring or storing” of the program requires duplication. The right of reproduction is one of the basic exploitation rights of the author (Sections 15 (1) No. 1, 16 UrhG). The basic consequence of reproduction is that the reproduced work can be used in the same way as the work itself (e.g. viewed, read, listened to ….). It thus enables additional enjoyment of the work.According to Section 69c No. 1 Sentence 2 UrhG, the consent of the copyright holder is always required if the “loading, displaying, running, transferring or storing” of the program requires duplication. The right of reproduction is one of the basic exploitation rights of the author (Sections 15 (1) No. 1, 16 UrhG). The basic consequence of reproduction is that the reproduced work can be used in the same way as the work itself (e.g. viewed, read, listened to ….). It thus enables additional enjoyment of the work.
The ratio of Section 69c No. 1 UrhG must also be seen against this background: The mere “enjoyment of a work” does not constitute an act of use relevant under copyright law, even in the case of computer programs. If a user has lawfully acquired a program and installed it on a stationary basis on his own PC, no copyright is infringed if he allows a third party to work with this program on this PC, nor if he allows a third party to watch a film he has acquired there (the OLG refers in this respect to BGH, I ZR 139/89). The use by the third party only becomes relevant under copyright law if the third party is enabled to make further use of the program by copying it. In the opinion of the OLG, however, this legal purpose applies irrespective of the sphere in which the reproduction required for the additional use takes place.
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