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horak.
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Infringement of Copyright (Copyright Infringement Proceedings) – Horak Attorneys at Law, Hanover & Munich

The infringement of copyrights has extremely increased in the last years, due to the strong influence of the modern digitization. For instance, a piece of music is generally protected from the composer and the lyricist copyrights. In addition, rights of performance of the recording companies are sometimes added. A music publisher could also be the owner of the copyright, and, in the case of a GEMA membership, some exploitation rights may be exercised by GEMA. For a film, additional components are included.

Even the simplest photographs constitute an ancillary right of the photographer. Furthermore, overlapping design rights or semi-protective rights (from the area of Competition Law) can become a significant potential risk of infringement.

In some areas, especially in large parts of the music industry, as well as in some parts of the cinematographic/films industry, the jurisprudence has been trying to limit alleged infringements and their consequences, especially in the last decade. 

Copyright for pieces of work

To the protected works of literature, science and art also belong:

  • Linguistic works, such as compositions, speeches, computer programs;
  • Pieces of music;
  • Works of visual art including works of architecture and applied art and designs/drafts of such works;
  • Photographic works (Lichtbildwerke), including works created similarly;
  • Film works, including works created similarly;
  • Representation of scientific or technical nature, such as drawings, plans, maps, tables and sculpture.

Other works in sense of copyright are only personal intellectual creations. The protection is legally possible in presence of the necessary protection requirements; please consider that there is no registration obligation. For further information on this topic, please consider consulting an attorney.

Presence of Copyright Infringements

The most difficult question of the entire process is whether an infringement of copyright (or ancillary copyright) has actually existed/or is still happening.

It must then be examined whether the rights in question were really infringed. On this occasion, expert opinions may also be consulted; for instance, when a certain tone-sequence of a piece of music violated the composition of another, an expert opinion is usually required.

Depending from the circumstances, it can be easier to understand whether the violation has happened or not. Contrary to other proprietary rights (such as Trademarks, Patents, Designs) a private or non-commercial breaching is sufficient to declare a Copyright Infringement.  This particularly wide scope of copyright protection raises many problems, which are not sufficiently taken into account by the actual jurisprudence.

Entitlement enquiry against the Copyright Infringer

Instead of starting a copyright infringement case with a warning, an entitlement (or authorization) enquiry is generally recommended on a case-by-case basis. This is actually a much milder measure than the warning. Here, the potential copyright infringer is informed of the facts, and he will be asked if he thinks he is entitled to these actions. 

An “unauthorized „ entitlement enquiry does not involve consequent costs but authorize an eventual warning from the rights-holder to the rights-infringer. Furthermore, the copyright infringer has the opportunity to take a very early position and avoid possible infringement proceedings. If no agreement is found, it is recommended to seek for legal assistance.

Copyright infringement and warning letters

With a warning letter, the copyright infringer is referred to the discussed facts and is informed about the (already) existing copyright protection.

In a warning letter, compensation for the past damages and for the future licences is generally requested. In addition, the warning implies the thread of recourse to judicial assistance. The main difference to the entitlement enquiry is that the warning raises the legal threats strongly into the foreground. If the opponent does not collaborate, and if the warning is not successful, the copyright infringement action can go further.

Copyright Infringements lawsuits in Germany

A legal violation of protective rights can primarily be prosecuted by means of civil law, i.e. copyright infringement proceedings are brought before the Court of Appeals of the Land Court.

Please consider involving a lawyer throughout the whole procedure; in copyright infringement proceedings, the following claims are to be considered:

  • Injunctive relief;
  • Claim for abatement or removal;
  • Property Claims/compensation for damages;
  • Information claim.

It is generally the party losing the case, who carries all the processual costs.

There are several reasons which make a copyright-holder applying for trademark infringement proceedings.  It is not only to prevent the trademark from infringements: financial interests can sometimes be the principle reason for those kinds of lawsuits.

Copyright infringements proceedings are really inexpensive in Germany if compared with the international framework. The legal expenses are based on the value of the dispute. Thus, a first-instance procedure costs a total amount of approx. 1500 EUR up to approx. 10000 EUR (costs estimate apply to typical disputes). This is the most favorable value in Europe. However, cases of copyright´s infringement on an international level are generally a little more expensive.

Additionally, the most famous Copyrights’ Courts in Germany (such as Hamburg, Düsseldorf, Stuttgart, Cologne, Munich and Mannheim) have also achieved an above-average reputation for prompt and reliable legal decisions.

Interim proceedings related to Copyrights Infringements

A lawsuit could require some time. In urgent cases, an interim injunction provides interim relief. With an injunction, the copyright infringer may be prohibited from selling counterfeited products or unauthorized copies.  As a rule, the Court of First Instance is responsible for the application for an interim injunction (in this case, therefore, the Copyrights Protection Litigation Chamber). The interim injunction may be issued without consultation with the other party. If a provisional injunction proves to be unjustified, the opponent can assert a claim for damages against the applicant.

A third party threatened by an interim injunction may deposit a protective precaution. This can prevent a provisional injunction from being issued without prior consultation with the opposing party.

Penal proceedings related to Copyrights Infringements under German Law

An intentional infringement of copyrights is punishable by law.

There is the possibility of filing for a penal application. The criminal application must be submitted to the District Court within a period of three months after the offense has been reported (§ 77b German Penal Code -StGB).

The various Public Prosecutors’ Offices often apply particular laws for infringements of property rights. In defense of a criminal proceeding, special procedures may also be considered.

Further aspects of a copyright infringement:

  • Warning due to copyright infringement;
  • Filesharing-warning;
  • Copyrights Infringement on eBay;
  • Copyrights Infringement on Amazon;
  • Copyright Infringement on other Sale-Platforms (such as Dawanda, Etsy etc.)
  • Copyrights research;
  • Music Law;
  • GEMA;
  • Film Law;
  • Copyright Law;
  • GVL;
  • Evidences of Chain-of-title (Rechtekette) ;
  • Specialized Attorneys at Law for Intellectual Property, Copyright and Media Law.

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© German lawyer Michael Horak 2002-2017

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