In its decision of November 12, 2015, the Cologne District Court clarified the strict requirements for an effective warning within the meaning of Section 97 a para. 2 UrhG clarified.
The owner of a design and illustration company issued a justified warning to the operator of a website for the use of 5 images. Nevertheless, he had to bear the costs of the warning and the other party’s legal fees. The warning was ineffective and thus led to a cost trap for the author.
The formal requirements for a warning letter increase
A warning letter in copyright law must not only be written in a clear and comprehensible manner. It must also explain why the attached cease and desist obligation goes beyond the infringements for which a warning has been issued.
In the case to be decided by Cologne District Court, the cease-and-desist letter contained a declaration that all costs incurred would be borne. The warning letter did not contain any justification as to why there should also be a claim for reimbursement of legal fees in addition to the claim for injunctive relief. Due to this lack of justification, the warning no longer fulfilled the requirements of Section 97 a para. 2 sentence 1 no. 4 UrhG and was ineffective.
As soon as a warning is ineffective, the person being warned does not have to bear the costs of the warning, but can demand reimbursement of the costs of his legal defense, Section 97 a para. 4 UrhG. This quickly turns your own warning letter into a cost trap.
Although the person issuing the warning would have been reimbursed for all costs incurred in the case of an effective warning, in the case of an ineffective warning – regardless of whether it is justified or not – he must bear all costs himself.
Cost trap warning letter for authors!
The strict formal requirements of Section 97 a UrhG came into force on October 9, 2013. Since then, they have repeatedly caused disputes – associated with cost traps in the event of ineffective warnings. As our colleagues at IPCL Rieck & Partner report, the decision is now legally binding.
The question of the effectiveness of the warning is not related to the justification of the warning. Nevertheless, a simple formal error leads to the entire ineffectiveness and to a reversal of the obligation to bear the costs. The author can avoid such cost traps by being represented by a lawyer familiar with copyright law.