BGH: Copyright infringed by unlawful advertising

The Bundesgerichtshof (BGH) [German Federal Court of Justice] ruled in three separate cases on November 5, 2015 that it is possible for unlawful advertising alone to constitute an infringement of copyright law.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London – www.grprainer.com/en conclude: The BGH has significantly strengthened protection under copyright law with its three rulings of November 5, 2015 (I ZR 91/11, I ZR 76/11, I ZR 88/13). The First Civil Panel of the BGH, competent, among other things, for copyright law, held that distribution rights under copyright law also encompass the right to offer the original product or reproductions of a work to the public for purchase.

In two cases, an Italian company had advertised designer furniture and special lighting appliances on its website and in various print media outlets in Germany. These items are protected by copyright in Germany, which is why the owner of the exclusive rights of use under copyright law sued for an injunction and damages. The plaintiff was successful both in the first two instances as well as before the BGH. The Karlsruhe judges held that merely advertising the products protected by copyright law was sufficient to constitute a copyright infringement. They went on to say that it was irrelevant whether the products were being sold, since the advertising alone could entice consumers to purchase.

The situation was similar in the third case, in which an unauthorised recording was made of a live concert. This was then offered for sale online as a DVD. This so-called bootleg had not been authorised by the artist. The Panel considered this to be a copyright infringement as well, stating that the artist’s distribution rights had been infringed by the online offer.

As a matter of principle, copyright law should afford both conceptual and material protection to intellectual property. This was underlined by the BGH in its recent case-law. That being said, it can prove difficult to present evidence pertaining to intellectual property rights. To avoid copyright infringements and protect oneself against them, a lawyer who is competent in the field of copyright law can be consulted.

http://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/copyright-law.html