In a globalized world, where content circulates freely across borders, determining the jurisdiction in cases of copyright infringement has become more complex. One recent decision by the Berlin Regional Court (LG Berlin, Case No. 15 O 260/22) highlights the issues surrounding international jurisdiction in digital copyright cases. This ruling, which involved the unauthorized use of a musical work on a Swiss bank’s website, underscores when foreign entities might face legal challenges in Germany due to copyright violations on the internet.
This article not only discusses the decision by LG Berlin but also provides a broader context for understanding international jurisdiction in copyright disputes and how non-German businesses might inadvertently breach German copyright law by making their websites accessible to German users.
Case Overview: LG Berlin (Case No. 15 O 260/22)
The plaintiffs, two music publishing companies, alleged that the Swiss bank used a copyrighted song in a promotional video on its website without proper licensing. The video was accessible online between 2014 and 2020, and the plaintiffs argued that the mere availability of the content in Germany constituted an infringement under German copyright law.
The core issues revolved around:
- International Jurisdiction: Could a German court claim jurisdiction over a Swiss entity whose website was accessible in Germany?
- Copyright Infringement: Was the Swiss bank responsible for copyright infringement by making a video with a copyrighted song available to German users?
- Damages and Legal Consequences: What were the legal remedies available to the plaintiffs?
The Court’s Decision
The Berlin Regional Court dismissed the case. Despite the accessibility of the website in Germany, the court ruled that the plaintiffs failed to establish a clear connection to the German legal system. The court noted that the Swiss website was not explicitly targeting German users, and thus no actionable copyright infringement occurred under German law. Moreover, without substantial evidence of damage in Germany, the plaintiffs’ claim for damages and compensation was rejected.
Key Legal Issues
1. International Jurisdiction and the Territoriality Principle
In copyright law, the territoriality principle means that rights are enforced only within the borders of the country where the infringement occurs. The plaintiffs in this case argued that because the content was accessible in Germany, the Berlin court had jurisdiction. Under the Luganer Übereinkommen (Lugano Convention), a German court can be competent if the harmful event occurred in Germany.
However, the court reaffirmed that mere accessibility does not necessarily confer jurisdiction. For a German court to be involved, the website must specifically target the German market or cause significant damage to German-based rights holders. The judgment stressed that a violation can only be claimed if intentional targeting of German users is demonstrated.
2. Vicarious Liability and Public Availability
The plaintiffs asserted that the Swiss bank made the song “publicly available” in Germany under §19a of the German Copyright Act (UrhG). While websites are globally accessible, the German court held that liability under §19a arises only if the website is specifically aimed at German users. The court found no evidence that the Swiss bank targeted its promotional video at Germany or that the content was advertised to a German audience.
This interpretation aligns with broader European Court of Justice (ECJ) rulings, including the “An Evening with Marlene Dietrich” case, which set the precedent that accessibility alone is insufficient for a copyright claim in Germany if the content does not deliberately target the country.
3. Damage Claims and Evidence of Harm
One critical aspect of the ruling involved the plaintiffs’ inability to prove measurable harm in Germany. Since the content was not specifically marketed toward Germany, the plaintiffs failed to show how the alleged infringement caused them financial damage within German borders. The court held that global access to a website does not automatically lead to jurisdiction for damage claims unless the financial harm can be explicitly linked to users within that territory.
When Foreign Websites Can Face German Copyright Claims
Foreign websites or businesses operating internationally should be aware of the risks of inadvertently infringing German copyright law. Under the Lugano Convention, companies may find themselves subject to German jurisdiction if:
- Content is tailored for German audiences: Websites with German-language versions, targeting German users, or involving marketing directed at Germany may be seen as aiming at the German market, making them susceptible to German copyright claims.
- Intent to reach German users: If there is an evident focus on the German market (e.g., specific advertising or promotion in Germany), this can be construed as targeting, thereby opening up liability for infringements under German law.
This is further supported by the Frankfurt Higher Regional Court (OLG Frankfurt, Case No. 11 U 27/18), where an American non-profit platform was found liable for offering works protected under German copyright law. Even though the works were public domain in the U.S., their availability to German users made the platform responsible for copyright infringements.
In both cases, the courts emphasized that companies must actively prevent unauthorized access from German users (e.g., through geoblocking or similar measures) if they do not intend to comply with German copyright law. The failure to take such precautions can result in liability even if the company operates outside of Germany.
Key Takeaways for Foreign Businesses
- Jurisdiction Can Be Triggered by Targeting: Even if a website is based outside Germany, it can be subject to German copyright law if it deliberately aims content at the German market.
- Preventative Measures Are Essential: Non-German companies should consider implementing geoblocking or IP filtering to avoid legal disputes in countries where their content may infringe local copyright laws.
- Evidence of Harm Is Crucial: Plaintiffs must demonstrate specific harm within the jurisdiction to succeed in damage claims, meaning that foreign businesses should carefully assess their exposure to financial liabilities based on user demographics.
Conclusion
The LG Berlin decision underscores the complexities of enforcing copyright in a global digital landscape. While mere accessibility may not automatically trigger jurisdiction, any clear targeting of German users or deliberate engagement with the German market can open foreign companies to liability under German law. This is particularly important for businesses operating internationally, as local copyright regulations must be respected to avoid costly legal battles. The decision serves as a reminder to foreign websites to implement protective measures and stay aware of the different legal landscapes in which they operate.
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