Normally, only the author and his licensees are entitled to the rights of use to a work. If a third party acts contrary to this principle, this constitutes copyright infringement. The rights holder has various options for responding to such a case in accordance with Sections 97 et seq. of the German Copyright Act (“UrhG”).

First: Claim for removal of the copyright infringement

The rights holder whose rights have been infringed initially has the option of demanding the removal of the copyright infringement, Section 97 (1) sentence 1 Alt. 1 UrhG. According to the wording of the law, the prerequisite for such a claim is only the existence of a specific unlawful infringement of a copyright. This can be, for example, the unauthorized reproduction of an image or text.

The claim for removal against the infringer applies regardless of the infringer’s fault (i.e. intent or negligence). Therefore, the action that the infringed party demands from the interferer must firstly be necessary and suitable to eliminate the copyright infringement. On the other hand, it must also be reasonable for the infringer.

If there is a risk of repetition: claim to refrain from copyright infringement

In addition, the infringed party can claim injunctive relief from the disturber pursuant to Section 97 (1) sentence 1 Alt. 2 UrhG for injunctive relief. As this claim serves to prevent future infringements of copyright, the prerequisite is that there is a corresponding risk of repetition. Such a risk is generally indicated by an infringement that has already been committed; in the absence of such a risk, an imminent, sufficiently concrete initial risk is sufficient (BGH, judgment of March 20, 2003, ref.: I ZR 117/00).

The risk of repetition can typically only be eliminated out of court by the infringer by means of a declaration to cease and desist with a sufficient penalty clause. If the infringer subsequently breaches his declaration, he is obliged to pay a contractual penalty.

For the enforcement of these claims: Priority of the warning notice pursuant to Section 97a UrhG

It is true that the person whose copyright has been infringed also has recourse to the courts to enforce their claims. However, Section 97a UrhG formulates a non-mandatory priority of the warning letter. This is intended to make the infringer aware of his copyright infringement in a clear and comprehensible manner and give him the opportunity to settle the dispute without legal proceedings.

The advantage of such a procedure for the infringed party is the avoidance of costs: Because if the warning is justified, he can demand reimbursement of the expenses required for the warning from the infringer, Section 97a (3) sentence 1. But caution is also required: Incorrect warnings can trigger counterclaims by the infringer against the rights holder!

In the event of culpable infringement of copyright: claim for damages

If the interferer infringes the copyright intentionally or negligently, the infringed party is also entitled to compensation in accordance with Section 97 (2) sentence 1 UrhG. The beneficiary can choose between three different methods for determining the scope of this entitlement:

• He can claim his concrete damage incl. of his lost profit.
• Alternatively, he can demand the surrender of the infringer’s profits. In other words, the income that the infringer has received as a result of the copyright infringement.
• Finally, the damages can be calculated as a so-called “license analogy”. The infringed party thus receives the compensation from the infringer that would have been granted to him by the infringer if the right of use had been properly granted.

Supplementary: Claims for information, submission and inspection

Finally, the infringed party is entitled to information about the infringement. This can arise from Section 242 BGB or, if the copyright infringement is on a commercial scale, from Section 101 (1) UrhG. This right to information relates in particular to the origin and distribution channel of the infringing reproductions or other products. The right to information is supplemented by Section 101a UrhG, which regulates the submission and inspection of bank and financial documents, for example.

Since information can be obtained to determine the extent of the damage and possible further infringers, these claims are primarily used to enforce removal, injunctive relief and/or damages for copyright infringement. They are therefore not independent claims for copyright infringement, but merely accessory (i.e. ancillary) claims.