Amazon enables online retailers to offer their products. Each product has an EAN code (European Article Number) or a GTIN code (Global Trade Item Number).

„Attach“ – The Amazon Marketplace concept

If several retailers offer the same product, the product image of the first seller and the list of the various retailers will appear. If a picture for a specific product has already been uploaded by a retailer, other retailers can upload their own pictures, but the picture of the first seller will appear when the product is called up.

Amazon secures the rights of use for the product images in its general terms and conditions:

„XIII. Copyright, license, rights of use

The participants transfer to Amazon a royalty-free, perpetual, comprehensive right of use, in particular to reproduce, distribute, edit all works or parts of works as well as databases or any other catalog or any other product information that participants transmit to Amazon as part of Amazon’s online offering (with the exception of any company logo, trademark or other similar branding), including the right to publish this content in print media, online, on CD-ROM, etc., including for advertising purposes.“

Clause does not contain any unreasonable disadvantages

According to the report by the Institute for Copyright and Media Law, the Higher Regional Court of Cologne (judgment of December 19, 2014, ref. 6 U 51/14; not yet published) now had to decide whether this clause is effective. In the legal dispute, an online retailer sued another retailer for the unauthorized use of product photos for which it held the exclusive right of use.

Lower court left decision open

The lower court (Regional Court of Cologne, judgment of 13.02.2014, Ref.: 14 O 184/13) tended towards the invalidity of the clause in its decision, but left this open in the end. The court dismissed the action on the grounds that Amazon’s actions could not be to the detriment of the defendant, as the plaintiff was aware of the Amazon Marketplace concept:

„Due to these mechanisms used by B (Amazon, editor’s note), the plaintiff was also aware and conscious of the fact that B would list other retailers‘ offers together with his offers on a product page, and that this would be the case even if different EAN or GTIN numbers were used. GTIN numbers, this would be the case at the latest as soon as it became apparent from the regular checks carried out by B that the products offered by the plaintiff were identical to those of other retailers… Nor did the plaintiff take any measures to prevent such joint listing of offers under his product images, e.g. by labeling his photographs accordingly… In view of this, if the plaintiff decided to upload his photographs to B’s server in order to make full use of B’s service, this is not to the detriment of the defendant.“

OLG Cologne considers clause to be effective

According to the above-mentioned report, the Cologne Higher Regional Court came to the conclusion that the clause was valid. In particular, there was no violation of § 307 para. 2 No. 1 BGB. This states that a clause in the GTC is invalid if it cannot be reconciled with the essential basic ideas of the statutory provision from which it deviates.

In this case, the rights holder’s claim to reasonable remuneration (Sections 11, 32 UrhG) came into consideration. However, the judges did not see any unreasonable disadvantage in the clause, as the basic idea of the Amazon Marketplace is based on the fact that all traders benefit from the simple concept. The Marketplace was compared to a so-called „peer-to-peer“ network on which all participants can use the posted content with each other. Thus, the plaintiff had the right to „attach“ itself to product photos already posted as another retailer. For the same reason, the granting of rights of use to Amazon for an indefinite period of time is not an unreasonable disadvantage for the first poster. This also serves the purpose of legal certainty and ease of use.

Criticism

By participating in the Marketplace concept, retailers grant Amazon a comprehensive, free-of-charge right to use the content posted. For reasons of legal certainty, it is only right not to blame the „followers“ for Amazon’s mistakes.

However, it seems questionable whether the clause is lawful. After all, the clause allows Amazon to advertise with product photos free of charge, for which the retailer has generally paid beforehand.

This gives the other retailers a competitive advantage, as they can use the image of the initial supplier (free of charge) for illustration purposes. The „ease of use“ argument therefore does not seem entirely convincing. Due to the powerful position of the online shipping giant, retailers are effectively forced to submit to the system.