Portal operator can be liable for copyright infringement by portal users

The First Civil Senate of the Federal Court of Justice (BGH), which is responsible for copyright law among other things, has ruled that the operator of a recipe collection on the internet can be liable if internet users unlawfully upload photos of cooking recipes to its website.

The defendant offers a collection of recipes that can be downloaded free of charge at the internet address www.chefkoch.de. The recipes are uploaded independently by private persons with suitable pictures. In the process, photos taken by the plaintiff were used several times without obtaining his consent. These photos together with the corresponding recipes could be accessed free of charge at the internet address www.marions-kochbuch.de, which the plaintiff operates together with his wife.

In particular, the plaintiff wants the defendant to be prohibited from making certain photographs taken by him and available at www.marions-kochbuch.de publicly accessible on the website www.chefkoch.de without his permission. He also seeks damages. The action was successful before the Regional Court and the Higher Regional Court.

The Federal Court of Justice dismissed the defendant's appeal. The provision of the plaintiff's copyrighted photos for downloading at the internet address www.chefkoch.de infringed the plaintiff's exclusive right to make them available to the public (§ 15.2 no. 2, § 19a UrhG). The infringement was not precluded by the fact that the photos had already been generally accessible on the plaintiff's website. The defendant's liability was also not limited by the fact that service providers were only liable to a limited extent for infringements of rights in the case of the transmission and storage of third-party information (see §§ 8 to 10 TMG). The defendant had made the content uploaded by its users its own. It was therefore liable for this content as for its own content.

According to the BGH, the defendant does not merely operate an auction platform or an electronic marketplace for third-party offers. Rather, it had visibly assumed responsibility for the content of the recipes and illustrations published on its website. The defendant controlled the content of the recipes appearing on its platform and pointed out this control to its users. Last but not least, the defendant marked the recipes with its emblem, a chef's hat. The author of the recipe appears only as an alias and without any emphasis below the list of ingredients. In addition, the defendant requires the consent of its users that it may reproduce all the recipes and images provided and pass them on to third parties.

The Federal Supreme Court also awarded damages to the plaintiff. The defendant had not sufficiently examined who was entitled to the rights to the photos that appeared on its platform. The reference in its general terms and conditions that no copyright-infringing content may be uploaded to its platform was not sufficient in this respect.

 

Judgment of the Federal Court of Justice of 12 November 2009 - I ZR 166/07 - marions.kochbuch.de

 

Lower courts:

Hamburg Higher Regional Court - Judgment of 26 September 2007 - 5 U 165/06

Hamburg Regional Court - Judgment of 4 August 2006 - 308 O 814/05

 

Source: Press release of the BGH

 

Goldberg Attorneys at Law

Michael Ullrich, LL.M. (Information Law)

Lawyer and

Specialist lawyer for information technology law (IT law)

E-mail: info@goldberg.de

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