The operator of an internationally oriented internet platform, on which literary works are published free of charge, is liable for copyright infringements in Germany if the works offered in German are not yet in the works offered in the German language are not yet in the public domain under German copyright law and the operator has "appropriated" the works posted by third parties on the platform. has made the works posted by third parties "its own". The manager is also liable if he merely arranges for an examination of US copyright law, despite the the website is also intended for German users.
The applicant is a publishing house and publishes, inter alia, works by Thomas Mann, Heinrich Mann and Alfred Döblin. The defendant is a "non-for-profit corporation" under US law. It operates a website that can also be accessed in Germany, the aim of which is the publication of works that are in the public domain in the USA. On the homepage more than 50,000 books can be downloaded free of charge as e-books, including 18 works by the three three authors also in German. The books are published by third the defendant (so-called volunteers) on the platform. Prior to publication, the defendant arranges for a review exclusively under according to US-American copyright law.
The plaintiff contends that the defendant infringes its copyright in the 18 works. copyrights in the 18 works to which it is entitled. It is suing the defendant for injunctive relief. injunction. The Regional Court had granted the claim. The appeal appeal was unsuccessful before the Higher Regional Court.
German courts competent
The German courts had international jurisdiction, since the contents of the of the website can also be accessed in Germany, the OLG first clarifies. first clarified. German law was applicable. According to the rules of the question of whether claims for copyright infringement exist is governed by the law of the so-called the law of the so-called country of protection, i.e. in this case the Federal Republic of Germany, in this case the Federal Republic of Germany.
German law violated
The defendant infringed the plaintiff's exclusive rights of use under copyright law. of the plaintiff. The plaintiff was able to prove that it had exclusive rights of use in Germany to the exclusive rights of use in Germany in the works at issue. Under German law, the works were not - yet - in the public domain (unlike in the the USA).
Platform operator Perpetrator
The defendant was also liable for the works retrievable via its platform as a so-called perpetrator. as a so-called perpetrator. The operator of an internet platform is not only responsible platform was not only responsible for content made accessible there if he had created the content himself. created the content himself. It was sufficient that he had "made the content his own". own" the content. That was the case here. The defendant referred to the works posted by the so-called volunteers on its platform as "our books". volunteers on its platform as "our books"; In addition, it referred to a "Project ... Licence" associated with the "Project ... License" associated with the literature offered. Finally, the defendant had deliberately the offer of its website for German users, even after the plaintiff had the plaintiff had pointed out to it that copyright protection still existed in Germany. had pointed out. The defendant's lack of intention to make a profit was of no significance for the question of an the question of unlawful communication to the public.
Managing director also liable
The managing director of the defendant, who was also held liable also liable for the copyright infringements. In principle, a managing director managing director was under no obligation to "prevent any tortious conduct". conduct - i.e. in the area of copyright law, every copyright infringement - which may infringement - that is, in the area of copyright law, any copyright infringement - that is committed committed out of the company managed by him". If, however, the infringement was based on a measure taken by the company, which is typically decided at the level of the managing director, it must be assumed that it was initiated by the managing director. In the present case, the managing director had not taken into account the defendant's concept of literary works prior to their publication only under US copyright law, although the site was also intended for German users. and practised.
Frankfurt am Main Higher Regional Court, Judgment of 30 April 2019, Case No. 11 O 27/18
(preceded by Landgericht Frankfurt am Main, judgement of 09.02.2018, Az. 2-03 O 494/14)
The judgement is not legally binding. An appeal against non-admission to the Federal Court of Justice (BGH) for permission to appeal is possible (status: 07.05.2019).
Source: Press release no. 26/2019 of the press office of the Higher Regional Court Frankfurt a.M. of 30 April 2019