Metadata such as the EXIF and IPTC data in a photo can be information originating from the rights holder for the management of rights within the meaning of Section 95c UrhG.
If this information is deleted or changed, this may constitute a copyright infringement pursuant to Section 95c UrhG(OLG Cologne, judgment of 20.01.2017 – 6 U 105/16).
Client deletes EXIF and IPTC data
A photographer took approximately 160 photographs for a limited liability company. The image files provided to the GmbH contained metadata including information on the photographer’s name, address, homepage and copyright status.
The GmbH edited the images, deleted the metadata and partially overwrote it. It then passed the images on digitally to third parties. The photographer considered the deletion of the metadata to be a copyright infringement and demanded comprehensive information.
Cologne Regional Court and Cologne Higher Regional Court: Deleting metadata in photos is copyright infringement
In the court proceedings, the GmbH mainly defends itself by arguing that Section 95c (3) UrhG always requires intent. However, it had not acted “knowingly without authorization”.
The courts did not accept this. The OLG Cologne even accused the GmbH of being able to
The defendant cannot rely on the fact that it assumed without further ado that it could remove the data attached by the defendant due to the comprehensive rights of use to the images granted to it. Such naivety in the sensitive area of copyrights is not credible.
There could hardly be a clearer statement.
Photo metadata protected as rights management information
It would be more correct to speak not (only) of “EXIF data”, but rather of “IPTC data” of the images. Unfortunately, both the Regional Court of Cologne and the Higher Regional Court of Cologne are somewhat technically incorrect here and only refer to “EXIF data”. However, this refers in particular to the data added by the photographer himself, such as the author’s name, copyright details or further information on terms of use or similar.
This metadata is not an indication of authorship in accordance with Section 13 UrhG. Rather, Section 95c UrhG serves to protect information that enables a more precise identification of rights holders and their exercise of rights, while at the same time preventing piracy.
§ Section 95c (3) UrhG has two subjective constituent elements
Section 95c (3) UrhG reads as follows:
Works or other subject matter from which information for the management of rights has been removed or altered without authorization may not be knowingly distributed, imported for distribution, broadcast, publicly reproduced or made publicly accessible without authorization if the person acting is aware or must be aware from the circumstances that he thereby induces, enables, facilitates or conceals the infringement of copyrights or related rights.
On the one hand, a “knowingly unauthorized” removal or modification of the information is required. On the other hand, knowledge or a need to know is required. However, this relates to the (possible) infringement of copyrights and ancillary copyrights. According to the widespread opinion and also in the opinion of the Higher Regional Court of Cologne, this does not require intent. Negligence is sufficient.
No dispute decision: is slight negligence sufficient?
The GmbH had acted with gross negligence. The Cologne Higher Regional Court thus avoided a dispute as to whether slight negligence might also be sufficient.
There are weighty arguments for and against slight negligence. In our opinion, slight negligence should be sufficient. The requirement of gross negligence would not correspond to the meaning and purpose of the standard. The purpose is precisely to ensure the effective exercise of one’s own rights. In addition, copyright law is generally subject to high standards of care and slight negligence regularly justifies the accusation of a breach of duty of care (see BGH MMR 2009, 756 m. Kaufmann; BGH, decision of 10.10.1991 – I ZR 147/89).
Note on our own behalf: The author took on the mandate and represented the photographer in the appeal proceedings. Further information and background in the current MMR 2017, 251.
