Copyright infringement and remedies in Germany

Copyright infringement and remedies

What constitutes copyright infringement?

German copyright law protects all rights holders defined in the Copyright Act equally. It does not make a difference whether an infringer violates an exclusive right of an author, an author’s moral right, or a neighbouring right protected under the Copyright Act.

Infringements of any of these protected rights could lead to civil law claims for injunctions, damages, unjust enrichment as well as destruction, recall or restitution of infringing goods.

Does secondary liability exist for indirect copyright infringement? What actions incur such liability?

Under German copyright law, not only is the direct infringer liable, but also other persons involved in the infringement, such as instigator or assistants. Further, and according to settled case law, liability requires actual and specific knowledge of the respective infringing acts, the legal and factual possibility of preventing the direct infringement, as well as the violation of a reasonable duty of care to prevent such infringements. The resulting liability is limited to injunctive relief and not to damages. One of the main situations refers to platform operators. Once they have been informed about a specific infringement on their platform, they are required to remove the specific infringing content and to implement measures in order to prevent future violations.

What remedies are available against a copyright infringer?

The rights holder is mainly entitled to the following relief against a copyright infringer:

• To eliminate or, where there is a risk of repeated infringement, to cease-and-desist from committing infringing acts (intent or negligence of the infringer is not required). The entitlement to prohibit the infringer from future infringement shall also exist where the risk of infringement exists for the first time.
• Any person who intentionally or negligently performs such an act shall be obliged to pay the injured party damages for the prejudice suffered as a result of the infringement.
• To destroy the unlawfully produced or distributed copies or copies that are intended for illegal distribution that are in the injuring party’s possession or are his or her property.
• To recall unlawfully produced or distributed copies or copies intended for unlawful distribution or to definitively remove them from the channels of commerce or, as an alternative, the injured party may require that the copies which are the injuring party’s property be released against payment of an equitable remuneration which may not exceed the production costs.
• Rendering of information about the distribution chain of the infringing products, accounting for turnover and profits made with infringing acts.
• Entitlement to present documents and to permit inspection of an object in the possession of the infringer if this is necessary in order to substantiate the claims.

Is there a time limit for seeking remedies?

The statutory limitation period for legal action against copyright infringements is three years from the end of the year in which the rights holder became aware of the infringing acts. If the rights holder does not learn about the infringing acts, the statutory limitation period will be 10 years starting from the date on which the rights holder first incurred damages based on the infringement. The absolute limitation period, that is, without knowledge of the infringement and regardless of damages incurred, is 30 years starting from the infringing act.

An application for a preliminary injunction must be filed within a certain time period, which is usually one month after having gained knowledge of the infringement and the infringer.

Are monetary damages available for copyright infringement?

Yes. The infringer is liable for actual damages sustained by the rights holder.

When setting the damages, any profit obtained by the infringer as a result of the infringement of the right may also be taken into account.

Entitlement to damages may also be assessed on the basis of the amount the infringer would have had to pay in equitable remuneration if the infringer had requested authorisation to use the rights infringed.

Authors, writers of scientific editions, photographers and performers may also demand monetary compensation for damage which is non-pecuniary in nature provided and to the extent that this is equitable.

This means that there are three different ways of calculating damages:

• lost profits due to the infringement;
• reasonable royalties in relation to the infringement (licence analogy); or
• surrender of the actual profits generated by the infringer.

In copyright infringement matters, the licence analogy seems to be the most commonly used way to calculate damages.

There is no basis for punitive damages in German law.

Can attorneys’ fees and costs be claimed in an action for copyright infringement?

Yes. As a rule, the losing party has to reimburse the winning party for all court fees paid. Furthermore, the losing party has to reimburse the winning party’s lawyer’s fees. However, the amount of fees and costs that can be claimed is limited by the German Code of Lawyers’ Fees.

Are there criminal copyright provisions? What are they?

Copyright infringements under German law also constitute criminal acts, which are punishable by fines or up to three years imprisonment. If the infringement is done on a commercial basis, the maximum punishment is five years in prison.

According to German copyright law, unlawful exploitation of copyrighted works, unlawful affixing of the designation of an author and the infringement of related rights are subject to imprisonment of not more than three years or a fine. Also any attempt shall be punishable.

The unlawful exploitation on a commercial scale is subject to an imprisonment of not more than five years or a fine.

The infringement of technological measures and rights management information is subject to imprisonment of not more than one year or a fine.

Are there any specific liabilities, remedies or defences for online copyright infringement?

No. The liabilities, remedies and defences for online copyright infringement are identical to the ones in the ‘real world’.

How may copyright infringement be prevented?

Copyright may be prevented by establishing a digital rights management system, which is a set of access control technologies for restricting the use of proprietary hardware and copyrighted works.