In its decision of 13.07.2016 (case no.: 6 W 71/16 and 6 W 80/16), the Higher Regional Court of Cologne commented on the determination of the value in dispute in copyright disputes. This was based on an application to cease and desist copyright infringements of a total of nine product images in an online store and on eBay. The Cologne Regional Court had set a value in dispute of € 42,000.00 in this regard.
Damages and injunctive relief must be separated
First of all, the Higher Regional Court of Cologne clarifies that when determining the amount in dispute, the claim for injunctive relief must be strictly distinguished from a possible claim for damages. The amount of possible damages can therefore have no influence on the amount in dispute of the injunctive relief claim.
This applies both if the damages would be particularly high and in cases in which, exceptionally, a claim for damages does not apply at all. The OLG Cologne assumes the latter, for example, in the case of images offered free of charge under CC licenses.
No mere addition of individual dispute values
As a second important point, the Higher Regional Court of Cologne states that the amounts in dispute may not simply be added together in the event of multiple infringements in a single proceeding. Instead, a total amount in dispute must be calculated, which will regularly be less than the sum of the individual amounts in dispute.
In the opinion of the Higher Regional Court of Cologne, the Regional Court of Cologne had made it too easy for itself here: In the case of nine infringements, it added up the value in dispute of € 6,000.00 per image in five cases and halved it to € 3,000.00 for each of the other four cases. However, this would lead to problems when calculating the cost ratio in the event of a partial loss, according to the Higher Regional Court of Cologne.
Instead, the amount in dispute should not be determined schematically but on the basis of the circumstances of the individual case. For pragmatic reasons, it would nevertheless make sense for the total amount in dispute to be a multiple of the number of contested photographs. This would simplify a possibly necessary division of costs. In the present case, the Higher Regional Court of Cologne considered a total amount in dispute of € 36,000.00 for nine images to be appropriate.
Procedural acts are unconditional
In addition to these statements on the total amount in dispute, the Higher Regional Court of Cologne once again reminded us in no uncertain terms that procedural acts cannot be made dependent on conditions. The opponent had lodged an appeal and described this as an objection to costs, or alternatively as an appeal on the value in dispute.
The Higher Regional Court of Cologne clearly rejected this approach and clarified that procedural acts are generally unconditional. There was also no exception to an “intra-procedural condition”, as the appeal was only intended to initiate a new instance. For this reason alone, the appeal was to be dismissed as inadmissible.