Report on the IMKR Lecture “Wikipedia and the Law – Current Legal Issues Surrounding the Free Online Encyclopedia” by Attorney Dr. Mezger
For the IMKR’s first lecture of 2017, held on January 11, 2017, Prof. Rösler welcomed Dr. Lukas Mezger, an attorney at Unverzagt von Have in Hamburg. Dr. Mezger has been writing numerous articles on Wikipedia for over ten years and is a member of the Supervisory Board (Präsidium) of Wikimedia Deutschland e. V. Wikipedia is the fifth most popular website in the world, with approximately 5,000 volunteer “Wikipedians” from Germany alone writing, editing, or reviewing articles. Dr. Mezger demonstrated just how easily anyone can freely edit articles using the example of the Wikipedia article on the University of Siegen.
But which laws must Wikipedia actually follow, given that every country in the world has its own copyright laws, among other things? Under German law, for example, the author’s rights to their work expire 70 years after their death, whereas in Canada they expire after just 50 years. In copyright law, the so-called “country of protection” principle applies. According to this principle, the law of the country in whose territory protection is claimed must be applied. Accordingly, Wikipedia would theoretically have to comply with every law in the world. Dr. Mezger explained that, on its German-language pages, Wikipedia at least attempts to comply with German, Austrian, and Swiss law. In addition, U.S. law must be observed, since the Wikimedia Foundation is headquartered there.
In Germany, the Wikimedia Foundation benefits from the fact that, as a platform operator, it is protected under § 10 of the Telemedia Act (TMG). This makes it a “privileged interferer” that is liable only once it becomes aware of the infringement (see OLG Stuttgart, NJW 2013, 32). However, since any article can be freely edited, Dr. Mezger pointed out that there is a risk that, for example, third parties’ copyrights, trademark rights, competition rights, or personality rights could be infringed. The community of volunteer Wikipedia authors, however, attempts to resolve such issues through dialogue at the earliest possible stage. Nevertheless, a solution satisfactory to all parties is not always possible through this approach, which is why Wikipedia also seeks to influence legal policy. For example, Dr. Mezger noted that Wikipedia succeeded last year in introducing the “freedom of panorama” (in accordance with § 59 UrhG) in Belgium. As a result, images such as those of the Atomium in Brussels may now be displayed on Wikipedia.
But how should Wikipedia deal with allegedly “incorrect” case law (such as BGH NJW 2011, 753 – “Stiftung Preußische Schlösser und Gärten”), even though there is generally no right to an image of one’s own property? Must all company logos – such as the Mercedes star – which, according to the “Geburtstagszug” ruling of the Federal Court of Justice (BGH) (BGHZ 199, 52), constitute a protectable work under § 2 UrhG, be removed from the articles? Ultimately, one would have to answer this question in the affirmative, even if that might not even be required of the copyright holder.
Conflicts can also arise in the areas of personality rights and press law. Particularly when the encyclopedic relevance and the public’s interest in information stem from scandals or crimes, personality rights and the principle of rehabilitation must be taken into account. There is currently a great deal of activity in this area. It remains to be seen whether case law on archival records and the right to be forgotten will pose a threat to Wikipedia in the future.
