In copyright law, many questions usually revolve around “Stoererhaftung” (Breach of Duty of Care) and less often around perpetration. It is therefore all the more interesting that the Federal Court of Justice (I ZR 88/13) has commented on the question of when one is a perpetrator of a copyright infringement. On this occasion, the BGH also clarifies that pure auxiliaries are excluded as perpetrators on the one hand, but online stores that automatically manage inventories through suppliers are perpetrators on the other hand. The latter in particular is likely to be of interest; discussions on responsibility are not uncommon in this area.
Perpetration of copyright infringement
The perpetrator of a copyright infringement is liable for injunctive relief if he or she fulfills the characteristics of an element of infringement himself or herself, or if he or she is an indirect perpetrator or an accomplice (…) Pursuant to Section 97 (1) sentence 1 UrhG, the realization of the objective element of an infringement is sufficient for this purpose. In contrast to the claim for damages, the claim for injunctive relief against the perpetrator of a copyright infringement is always given if he fulfills the objective elements of a copyright infringement in his own person. Fault is not a prerequisite for the assumption of perpetration (…)
The Court of Appeal was correct in assuming that the defendant fulfilled the requirements of the infringement because it offered the DVD in question as the operator of a sales platform in its own name and on its own account. In doing so, the defendant gave the Internet user the impression that it assumed responsibility for the content of the offers for sale that it posted in its own name.
Auxiliary persons are not perpetrators
However, a person who acts as a mere auxiliary person and therefore has no control over the infringement is not liable under copyright law. The decisive factor for the classification as a dependent auxiliary person is that the infringing act cannot be attributed to him as his own from a socially typical point of view, because he has no decision-making authority of his own due to his subordinate position (…) This group of persons typically includes messengers, letter carriers, deliverers, poster stickers and brochure distributors.
Automatically and externally maintained goods catalog does not relieve
An online retailer such as the defendant cannot be compared to this [meaning a mere auxiliary person]. The latter has autonomously made the decision to offer the products named to it by suppliers for sale to interested parties on its website. It can terminate the access of third-party companies to its own website at any time or exclude individual offers or remove them from its website (…).
It can decide which products are offered via its Internet platform.The fact that, according to its own representation, the defendant itself has no knowledge of the content posted by third parties does not alter the defendant’s responsibility for infringing offers. Unlike an Internet platform on which third parties are given the opportunity to submit their own offers and the operator of the Internet marketplace does not act as a seller (…), the defendant submits its own offers. It is responsible for these offers even if it uses third parties to make offers and does not take note of the content of the offers and does not subject them to any control.
Complicity in copyright infringement
That a copyright infringement according to the principles of complicity pursuant to § 25 Abs. 2 StGB can also be attributable as own act to such persons who were not directly involved in the execution of the unlawful act of reproduction, but had a significant share in and influence on the organizational, technical and entrepreneurial framework in which the copyright infringement took place, as the Regional Court of Cologne (14 O 38/19) has emphasized:
Liability as a perpetrator or participant in a tortious act such as copyright infringement is governed by the criminal law principles of perpetration and participation. According to this, the perpetrator is the one who commits the infringement himself or in indirect perpetration (§ 25 Abs. 1 StGB). Co-perpetration (see § 830 Abs. 1 Satz 1 BGB, § 25 Abs. 2 StGB) requires a joint commission, so a conscious and deliberate cooperation. The decisive criterion for the demarcation of perpetration and participation is the perpetration.
According to this, a perpetrator is someone who controls the causal process leading to success, while someone who assists a third party acting under the control of the perpetrator or causes the third party’s decision to commit the act is responsible as a participant. If the objective or subjective prerequisites for liability as a perpetrator or participant are absent, only liability as an interferer, which is solely obligatory for omission and removal, can be considered. These principles also apply if the examination of the circumstances of the individual case shows that the focus of the blame lies in an omission. Even then, in the case of an infringement caused by several persons, both perpetrator or participant liability and “Stoererhaftung” (Breach of Duty of Care) may be considered. In all cases, the fact that the perpetrator acts directly precludes the assumption that he or she is controlled as an intermediary by a person who acts only indirectly or remotely. In this case, contributory negligence is the most likely assumption, which requires joint commission of the act and thus conscious and deliberate cooperation (case law; cf. only BGH GRUR 2020, 738 marginal no. 42 – Internet Radio Recorder, mwN).
According to general principles, a co-perpetrator within the meaning of Section 25 (2) of the Criminal Code is someone who makes his own contribution to the crime and incorporates it into the crime in such a way that it appears to be part of the action of another participant and, conversely, his action appears to complement his own part in the crime. Co-perpetration does not necessarily require participation in the core event itself, nor does it require presence at the scene of the crime; rather, a contribution that promotes the realization of the crime and is limited to a preparatory or supporting act can also be sufficient. However, the objectively essential contribution to the crime must always be part of the activity of all those involved, according to the intentions of the participant. Whether or not external contributions to the crime are to be attributed in accordance with § 25 para. 2 StGB is to be examined on the basis of an overall assessment of all the established circumstances of the individual case. In this context, the decisive criteria are the degree of one’s own interest in the act, the extent of the participation in the act, and the leadership of the act or at least the will to do so, so that the execution and the outcome of the act also depend decisively on the will of the person concerned (cf. BGHSt 64, 10 = NJW 2019, 1818 marginal no. 157; BGH NStZ-RR 2019, 203 ; NStZ 2020, 22 marginal no. 4 f. mwN; BGH, decision of 12.8.2021 – 3 StR 441/20, NJW 2021, 2896  marginal no. 50).
The psychological promotion of the act, in particular the reinforcement of the will of the actor to commit the act, can also be a relevant contribution to the act within the meaning of § 25 para. 2 StGB (see BGH BGHR StGB § 25 para. 2 Tatbeitrag 2 = BeckRS 1990, 31093586; NStZ 2012, 379 ; NStZ-RR 2018, 40; NStZ-RR 2018, 178 ). However, in order to support the assumption of complicity alone – as distinguished from psychological assistance – the psychological promotion must be of considerable weight (see BGH NStZ-RR 2019, 203 ; BGH, order of 12.8.2021 – 3 StR 441/20, juris, marginal no. 47 ff.).
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