The days when drones were the reserve of hobbyists, technology fans and the military are long gone. Following an amendment to the German Aviation Act, civil drones are now recognised as aircraft. But what are the legal issues surrounding the use of civil drones? This article explains.
Civilian drones as aircraft
Following an amendment to the German Aviation Act (Luftverkehrsgesetz, LuftVG), civilian drones are now recognised as aircraft. The precise modalities are regulated in the German Aviation Order (Luftverkehrsordnung, LuftVO).
The amendment to the law makes sense. Studies have shown that the civilian market in Europe for drones is stable and is growing significantly. In the long term it is predicted that the civilian market for drones will overtake military demand.
Amazon received much media attention following its announcement that it plans within the next 4 or 5 years to begin delivering goods directly to customers within 30 minutes of ordering using civilian drones called “Octocopters”.
Moreover, private use of civilian drones is increasing: forest owners use them to assess their tree population, farmers use them to control their crops, surveyors use them to measure the boundaries of property and scientists use them to explore inaccessible areas. Even Deutsche Bahn announced it would like to use civilian drones to prevent graffiti and metal theft.
German Aviation Act and Aviation Order
The amendment to the German Aviation Act did nothing more than to recognise unmanned aerial vehicles (including their control stations) as aircraft, provided they are not flown for the purposes of sport or recreation (see § 1(2) LuftVG).
Permit to fly
The reverse conclusion of this definition is that civilian drones which are used for the purposes of sport or recreation are subject to less stringent rules under the German Aviation Act.
Where drones are used for purely private purposes, an obligation to apply for a permit to fly them applies if the drone weighs more than 5 kilogrammes. Otherwise there is no obligation to apply for a permit.
Furthermore, pilots of private civilian drones less than 5 kilogrammes are subject to no specific aviation legal requirements. For example, pilots are not required to prove knowledge of aviation rules. There are also no age restrictions, meaning that any person, including children and teenagers, can fly such unmanned aircraft.
Some restrictions do apply to flying civilian drones for private use: a minimum distance of 1.5 km has to be kept from airports; special no-fly zones apply in the government district in Berlin; and some federal states also prohibit flights over military bases and nuclear power plants. Flights over industrial complexes, accident scenes and public gatherings require official permission from the relevant authorities (§ 6(4) no. 1 LuftVO).
The drone has to stay within the sight of the person flying it, i.e. in an open area and at a maximum distance of 200 – 300 metres away. Some federal states also restrict the height of such flights to between 30 and 100 metres.
Risk to aviation safety
These restrictions the free use of airspace by civilian drone pilots shows that the legislature has sought to guarantee air traffic safety. Where unmanned aerial vehicles have the potential to endanger aviation safety, the restriction on the use of unmanned aircraft fulfils the purpose of aviation law.
Unmanned aerial vehicles pose an increased risk in comparison to other air traffic. An unmanned flying system consists of the drone itself, the ground station and the communication technology. There are therefore three possible sources of error. The legislation reflects that the safe integration of civilian drone traffic into the available airspace is fraught with uncertainty and still needs to be mastered.
Those who use civilian drones for commercial purposes, as opposed to private purposes, must observe the rest of the applicable provisions contained in the German Aviation Act and Order.
Companies using commercial drones up to 5 kilogrammes must apply for a flight permit from the relevant federal state authority (§ 16(1) no. 7 LuftVO). Unmanned drones over 25 kilos are not even permitted to fly.
In North-Rhine Westphalia the authorities responsible for issuing permits are the district councils of Düsseldorf and Münster. They offer two-year “general flight permits” for use in the whole of Germany.
A pre-requisite for obtaining a flight permit is proof of insurance. However, many third-party liability insurance policies contractually exclude damage caused by drones. As a result, it is necessary to obtain special insurance (§ 33 et seq. LuftVG). Such insurance is usually offered by model aircraft associations. Other requirements include proof of training and experience of pilots, as well as the provision of technical details concerning the drones to be used.
For each drone over 5 kilogrammes, individual permits are required. In addition to the requirements above, checks will also be made with the owner of the land from which the flights are to take place and with the local public order office.
Legal issues with the use of civilian drones
These new developments brought about by technical progress also bring legal issues and conflicts in the areas of data protection, the protection of privacy and property, as well as possible criminal sanctions.
A. Data protection
In terms of data protection, there is nothing objectionable about the use of civilian drones. The German Federal Data Protection Act (Bundesdatenschutzgesetz, BDSG) contains no rules prohibiting the use of private drones.
There are also no data protection concerns in relation to photographs or films taken during a private drone flight, provided the recordings are taken for personal or familial purposes.
The personal and family sphere is protected by data protection provisions §§ 1(2) no. 3 and 27(1) BDSG. They represent the limits of data protection law beyond which the rules find no application (BDSG, § 27 explanatory notes para. 43).
Different considerations come into play, however, when civilian drones are used for surveillance of other people or for commercial purposes.
Here the German Federal Court of Justice’s case law on surveillance using GPS tracking systems can be applied to the scenario of civilian drones (see BGH, judgment from 04.06.2013 – 1 StR 32/13). The same restrictions that apply to the use of GPS tracking devices to conduct surveillance, apply to civilian drones. This is because there is a risk that civilian drones that make use of photography or filming technology could severely breach the personality rights of those being watched.
If civilian drones are used for such purposes and if authorisation under § 28, 29 is not present, this constitutes an administrative offence under § 43 BDSG. If payment has been accepted in such circumstances, a criminal offence is committed (see § 44 BDSG).
B. Copyright law
The use of civilian drones can also raise legal issues within the area of German copyright law. This is especially the case if the unmanned aircraft are equipped with cameras to record pictures of public events, buildings, the countryside or people.
1. Public events
Generally, there is no requirement to obtain consent when taking photographs or videos of people at public events, provided that the main intention is to record the event in general and not specific people.
Under § 23(1) no. 3 of the Act concerning Copyright in Visual Arts and Photography (Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie, KUG) recorded images of persons may be distributed without consent, provided they depict public gatherings, parades or similar events.
This legislative exception from the requirement to obtain consent serves the public interest, the freedom to create images and press freedom. Those who participate in public events must accept that they may be filmed and their personality rights are subordinate (Dreier/Schulze, UrhG, 4. Aufl. 2013, § 23 KUG para. 38).
The pre-requisite for being able to rely on the free right to film at such events is that the gathering or parade is shown as an event as a whole and such film does not depict solely individual persons. However, the fact that the image of a single person can be recognised, does not in itself exclude the right freely film (Dreier/Schulze, UrhG, 4. Aufl. 2013, § 23 KUG para. 40).
Also, the broad term “gatherings, parades or similar events” must be distinguished from private events, especially if it appears that the organiser of the event has no intention of it being watched by the public.
2. Public buildings
The same legal analysis can be used for images or films recorded in public places or within air space (see §§ 59 German Copyright Act; 1 LuftVG respectively).
Paragraph 59 German Copyright Act (Urheberrechtsgesetz, UrhG) permits the free reproduction, distribution and public presentation of works which have been made freely available to the general public (Wandkte/Bullinger, UrhG, 3. Aufl., § 59 para. 3).
In the private sphere, a different legal assessment must be made. Architectural works, for example, can generally be protected by copyright, provided they are the expression of intellectual creation. All types of architectural creations can therefore be protected by copyright.
But, § 59 UrhG permits the production of images of copyright-protected architecture which is located on public paths, highways or spaces. These images may also be reproduced, disseminated and presented to the public. The pre-requisite for the so-called panorama freedom is that the creation is visible from a generally accessible public highway (Regional Court Berlin, NJW 1996, 2380, 2381).
Paragraph 59 UrhG therefore does not even apply to images taken in the air from civilian drones. It is therefore not relevant that the images captured by drones featuring architecture which is not visible from publicly accessible paths, highways or spaces, is not protected by the German Copyright Act (BGH, judgment from 05.06.2013, case ref. I ZR 192/00).
C. Private property
Legal issues arise when considering flights over and the recording of shielded private property belonging to third-parties. Here the personality rights of the third party, derived from Art 2(1) in conjunction with 1(1) German Constitution (Grundgesetz, GG), must be considered.
1. Drones equipped with non-recording cameras
It is possible to equip civilian drones with non-recording cameras. As such, the images captured during flight are transferred live.
Paragraph 1(1) LuftVG stipulates that the use of air space by aircraft is permitted, provided that it is not restricted by the Act or other legal regulation. Paragraph 1(2) sentence 3 permits the use of air space near to the ground by civilian drones.
The question here is whether there are any legal provisions which would restrict the use of civilian drones for the purposes of surveying the surrounding area. Immediately, considerations as to the privacy of the individuals on the ground arise.
It can generally be assumed that individuals must accept common disturbance and inconvenience inherent in overhead flight. This includes the fact that a drone may be visible from property and the accompanying noise.
Consequently, it is rare, within built-up areas, that the law guarantees complete protection against strangers’ view onto a property. If it were to do so, civilian drone pilots would be subject to a complete prohibition on flying drones over others’ property, even though the flight would generally be permitted under § 1 LuftVG.
Regular flights over another person’s property, on the other hand, could be considered a nuisance and may no longer fulfil the purposes of a fly-over.
It goes without saying that flights conducted with the sole aim of observing the property owner are impermissible.
2. Drones equipped with cameras with a recording function
It is also possible to equip civilian drones with cameras which record images.
a) Right to one’s own image
As is the case with normal photography, images taken from civilian drones are not allowed to violate another person’s image rights. Under § 22 KUG, images of a person may only be disseminated or presented in public with the consent of that person.
The term dissemination under § 22 KUG is broader that that contained in § 17(1) UrhG. The UrhG requires public dissemination, whereas the KUG covers dissemination in private circles too. The purpose for the dissemination is irrelevant. In particular, there is no requirement for the dissemination of the images to be for commercial purposes or in return for payment (Ahlberg/Götting, Beck’scher Online-Kommentar Urheberrecht, § 22 KUG para 52).
Not covered by §§ 22 KUG or 17(1) UrhG is the production of images. This means that provided the images are retained within the drone pilot’s private sphere, the pilot does not infringe the image rights of those persons who are filmed.
b) Personality rights
The sphere of autonomous private life encompasses not only the narrow concept of personal life, such as the ability of each individual to withdraw from the public eye, to shield oneself, or to keep to oneself, but also the right to one’s own image. This means that each individual has the right to control the way their personal image is presented to others.
Private residential property which is shielded and not visible from neighbouring private property or from the public highway is a typical area to which the owner may wish to retreat. “Spying” on someone in this case would therefore infringe their personality rights. This includes photographs or films taken of the property owner from civilian drones. However, this is only the case if the images captured are of good quality. If the images are a blurred bird’s eye view, the property owner’s personality rights would not apply.
Civilian drone pilots may have a general right to act freely, however in balancing the competing rights, this cannot outweigh the interests of the property owner in protecting their personality rights.
c) Criminal sanctions
The example of using civilian drones to fly over neighbouring property is apt for discussing the criminal sanctions that could apply to images captured in such situations.
Paragraph 201a German Criminal Code (Strafgesetzbuch, StGB) prohibits the production and transmission of unauthorised recorded images of persons who are located in their apartment or in a location protected from view. Such images would infringe the person’s highly personal private sphere.
The basis of paragraph 201a StGB is the right to one’s own image as guaranteed by the right to privacy under the constitution (see German Federal Constitutional Court: 1 BvR 653/96; 1 BvR 2080/98; 2 BvR 1447/10), so far as it applies to the highly personal private sphere (Graf/Münchener Kommentar zum StGB, 2. Auflage, § 201 a para. 7).
The term “recording” denotes the capturing of images on film material or other form of image or data medium in such a manner as to allow the (repeated) visual reproduction and perception of images or sequence of images (video) (see Graf/Münchener Kommentar zum StGB, 2. Auflage, § 201 a para. 26)
As such, there is a possibility that a civilian drone pilot could be held criminally responsible for capturing photographs during a flight.
d) Right to property
Flying over another person’s private property with a civilian drone does not infringe the property owner’s right to property.
Such a right would be derived from § 1004(2) in conjunction with § 905 German Civil Code (Bürgerliches Gesetzbuch, BGB). Paragraph 905 BGB extends the right to property “upwards” and “downwards” and is essential for the property owner to exercise authority over the property (Säcker/Münchener Kommentar zum BGB, 6. Aufl. § 905 para. 1).
However, property owners cannot prevent external influences on the property, unless they have an interest in doing so (§ 905(2) BGB). In addition, special legislative provisions restrict a property owner’s exclusive authority over property (Säcker/Münchener Kommentar zum BGB, 6. Aufl. § 905 para. 2). These include § 1 LuftVG, which requires the property owner to tolerate the use of the air space above the property without receiving compensation (Barber, WRP 2006, 184, 185 f.).
But, the use of air space above the property can in itself be restricted. This would be the case if civilian drones are flown too regularly over the property and therefore exceed the purpose of a fly-over laid down in § 1 LuftVG. In such a case, the reservation on the right to property contained in § 905(2) BGB would no longer apply.