Tenor:

It is ordered by way of interim injunction:

The defendant is ordered to pay a fine of up to EUR 250,000.00 and, in the event that this cannot be collected, to serve a term of imprisonment of up to six months,

prohibited,

to publish and/or have published and/or make publicly available and/or have publicly available the “BfR Statement on the IARC Monograph on Glyphosate” of September 4, 2015, attached to this decision as Annex AST 1, on the Internet without the applicant’s consent, if this is done as shown in Annex AST 2 attached to this decision.

In all other respects, the application for an interim injunction is dismissed.

The defendant shall bear the costs of the proceedings.

Reasons:

The application for a preliminary injunction dated March 13, 2019 is admissible and justified insofar as the applicant seeks a ban on making publicly available and publishing the “Statement” at issue. In this respect, the applicant has substantiated the existence of the grounds for the injunction and the claim for an injunction.

I.

The application is admissible; in particular, the Regional Court of Cologne has jurisdiction with regard to making available to the public and publication.

According to the case law of the 1st Civil Senate of the BGH, which is also responsible for copyright law, a tortious act pursuant to Section 32 ZPO, which also includes copyright infringements, is committed both at the place of action and at the place of success, so that jurisdiction is given either where the act of infringement was committed or where the legal interest was infringed. To establish jurisdiction, it is sufficient to conclusively assert facts on the basis of which an unlawful act committed in the jurisdiction is established. In the case of an alleged infringement of copyright or related rights by making the protected subject matter publicly available via a website, the place of success of a tortious act within the meaning of Section 32 ZPO is located in Germany if the asserted rights are protected in Germany and the website is (also) publicly accessible in Germany (see BGH, judgment of April 21, 2016 – I ZR 43/14 – An Evening with Marlene Dietrich).

The applicant bases his claims on the fact that the defendant made the disputed “statement” publicly accessible and published it (for the first time) without being authorized to do so and that it was available in Germany.

With regard to reproduction pursuant to Section 16 UrhG, for which the above-mentioned case law of the BGH is not relevant, there is no local jurisdiction of the Regional Court of Cologne. There are no indications that the act of reproduction, the creation of a copy, or the result, the storage on a storage medium, could have taken place within the jurisdiction of the Regional Court of Cologne, given that the defendant is based in Berlin.

II.

The application for the interim injunction is – insofar as it is admissible – also well-founded.

1. the requirements for a decision without an oral hearing (Section 937 (2) ZPO) are met in view of the existing interests in copyright law, especially since the applicant pursued the proceedings swiftly, in particular by filing the application for an interim injunction with the court within one month of becoming aware of the infringement. In this regard, by submitting the defendant’s email of February 14, 2019, in which the defendant informed the applicant that he had posted the disputed document on the Internet, the applicant credibly demonstrated that he first became aware of the infringement on February 14, 2019. The application for a temporary injunction was received by the court on March 13, 2019.

2. the injunction claim for the requested prohibition of making available to the public and publication arises from Sections 97 (1), 2 (1) no. 1, (2), 6, 19 a UrhG. To this end, the applicant has made it credible, in particular through the affidavit of Dr. T dated November 6, 2015, that he is the owner of exclusive rights of use to the disputed “Statement” dated September 4, 2015. Furthermore, by submitting screenshots of the website at https://g.de, the applicant has made it credible that the defendant, as announced in the email of February 14, 2019, has posted the disputed “statement” of September 4, 2015 there and made it available to third parties for retrieval and thus made it publicly accessible. The “Statement of the BfR on the IARC monograph on glyphosate” of September 4, 2015 in dispute is also a linguistic work that is protected by copyright pursuant to Section 2 (1) no. 1, (2) UrhG (see also the judgment of the Chamber of December 15, 2016 – 14 O 302/15 – and the judgment of the Higher Regional Court of Cologne of December 6, 2017 – 6 U 8/17, both at juris). Finally, the applicant has credibly demonstrated that the “Statement” has been made available for retrieval by third parties without his consent at www.g.de and – since this “Statement” was and is only used for internal information purposes – it has not yet been made available to the public with the applicant’s consent, Section 6 para. 1 UrhG, so that the defendant has also interfered with the applicant’s right to first publication pursuant to Section 6 UrhG, whereby the applicant expressly pointed out to the defendant in a decision dated December 10, 2018 (Annex AST 4) that the applicant’s consent was required before publication.

3. the limitation provisions of §§ 50, 51 UrhG do not apply.

The protective barrier of Section 50 UrhG does not apply in favor of the defendant, as the disputed quotation mark “statement” is a copyright-protected performance within the meaning of the provision, but it did not become perceptible in the course of a daily event that was reported on (for the requirements in detail, see the judgment of the Chamber of December 15, 2016 – 14 O 302/15 – and the judgment of the Higher Regional Court of Cologne of December 6, 2017 – 6 U 8/17, both at juris). Neither such a daily event nor a report about it is recognizable in connection with the “statement” at issue.

Likewise, the requirements of the protective barrier pursuant to Section 51 UrhG are not met (for the requirements in detail, see the judgment of the Chamber of December 15, 2016 – 14 O 302/15 – and the judgment of the Higher Regional Court of Cologne of December 6, 2017 – 6 U 8/17, both at juris). The “Statement” was neither published with the consent of the applicant nor did the defendant use the disputed use of the “Statement” as a quotation within the meaning of Section 51 UrhG.

4. the risk of repetition required for the assertion of a claim for injunctive relief is indicated by the previous infringement. In principle, this can only be eliminated by submitting a suitable cease-and-desist obligation with a penalty clause. The defendant did not submit such an undertaking in response to the warning letter of March 7, 2019.

5. contrary to the opinion of the defendant, the claim is also not excluded under the Information Reuse Act (IWG). The applicant rightly points out that it does not fall within the scope of application of the IWG, since according to § 1 para. 2 No. 6 IWG, the Act does not apply to information held by educational and research institutions, to which the applicant belongs (see Richter, Informationsweiterverwendungsgesetz, 2018, Section 1 para. 517).

6. the defendant was not heard before the preliminary injunction was issued, also taking into account the principles from the decisions of the Federal Constitutional Court (decisions of September 30, 2018 – 1 BvR 2421/17 and 1 BvR 1783/17, both juris), because the defendant is aware of the allegation of infringement in dispute from the warning letter, so that he had the opportunity to comment on the applicant’s submissions asserted in court. The applicant attached the reply letter from Attorneys U dated March 13, 2019 to the application for an injunction as Annex ASt 7. The Chamber took the content into account when issuing the preliminary injunction; circumstances that would oppose the asserted claim do not arise from this – as explained above.

(7) Insofar as the operative part of the interim injunction deviates from the application made, the Chamber interpreted the application or made use of the option under Section 938 para. 1 ZPO without this resulting in a partial rejection.

8 The decision on costs is based on section 92 para. 2 no. 1 ZPO. The defendant was also ordered to pay the costs of the proceedings insofar as the application for injunctive relief aimed at prohibiting the reproduction of the “statement” that is the subject of the application was rejected. It is clear from the grounds for the application that the allegation of infringement relates (solely) to use on the Internet. Insofar as the applicant has requested an injunction against reproduction pursuant to Section 16 UrhG, for which the Cologne Regional Court has no local jurisdiction, this is a necessary preparatory act for the display of the text on the Internet, which is why the reproduction has no independent economic weight compared to the allegation of making available to the public and in this respect no increase in the value of the object is justified. Against this background, the applicant’s loss is relatively minor and has not caused any particular costs.

9. the determination of the value in dispute based on § 53 para. 1 no. 1 GKG in conjunction with. § SECTION 3 ZPO.

Value in dispute: EUR 25,000.00