In the event of a copyright infringement, the infringed party is entitled to compensation for the resulting damages in addition to claims for removal, injunctive relief and information about the infringement, Section 97 para. 2 sentence 1 UrhG.
Prerequisite for compensation: Intentional or negligent copyright infringement
A claim for damages under copyright law first requires the infringement of another person’s copyright or another right protected by copyright law. Such an infringement usually occurs when the protected work is used without the consent of the copyright holder. This can be the unauthorized reproduction of another person’s image or text, for example.
In addition, there must be fault – i.e. intent or negligence – on the part of the infringer. An intentional copyright infringement is committed by someone who either deliberately commits an infringement or accepts it. In practice, this mainly concerns cases of piracy. The definition of negligent copyright infringement is determined by the general provision of Section 276 para. 2 BGB. According to this provision, a person commits negligent copyright infringement if he or she could have recognized it if he or she had exercised due diligence.
The courts place high demands on the degree of diligence to be applied: Accordingly, anyone wishing to use another person’s copyrighted work must obtain certainty about both the existence of protection and the scope of protection. The case law thus constructs a general duty to examine and inquire in the case of actions in the area of copyright.
Legal consequences and “triple damage calculation”
If the two requirements for a claim for damages are met, the infringer must compensate the author for the damages resulting from the infringement. The calculation of damages is generally based on the general rules of Sections 249 et seq. BGB. Since infringement in copyright law primarily involves monetary compensation, cf. section 251 para. 1 BGB. This means that the injured party must be compensated for the damage actually suffered, including the loss of profit, by the payment of a sum of money.
In practice, it is often very difficult to prove lost sales or reduced profits due to copyright infringement. This is why the Copyright Act in Section 97 para. 2 sentence 2 and 3 of the Copyright Act provides two further methods for calculating the damages to be compensated. The claimant can use these instead of the general provisions. The author is free to choose the most favorable of the three alternatives. Because there are thus three variants for calculating the damages, this is also known as the “triple calculation of damages”.
Profit skimming as compensation in copyright law
First of all, according to § 97 para. 2 sentence 2 UrhG, the infringer’s profit can also be taken into account when calculating damages. If the infringed party chooses this method of calculation, the net profit that can be attributed to the infringing object is to be paid as damages (BGH, judgment of November 2, 2000, case reference: I ZR 246/98). Any causal connection between the infringer’s profit and the copyright infringement is sufficient. The author can find out the amount of this profit through his right to information.
The license analogy as damages in copyright law
Furthermore, the calculation of the claim pursuant to Section 97 para. 2 sentence 3 UrhG can also be based on the amount that would have been paid to the rights holder if the right of use had been properly granted. For this purpose, the conclusion of a license agreement on reasonable terms is assumed, the so-called license analogy.
General remuneration rates are often used to calculate the hypothetical usage fee, such as the tariffs of the collecting societies GEMA or VG Wort. The recommendations of the Mittelstandsgesellschaft Foto-Marketing, the so-called “MfM table”, are also very well known. In the meantime, a large number of court rulings have been issued on whether and how these recommendations can be used to calculate the license analogy.
License analogy offers many advantages in practice
The license analogy has several advantages over the other two methods of calculating damages. For example, it is also suitable in cases in which the infringed party has no directly calculable loss of its own. This may be the case, for example, if he himself does not exercise the copyright at all or exercises it in a completely different way than the infringer.
Compared to the calculation based on the infringer’s profit, the license analogy has the advantage that the profitability of the infringement is not relevant. Especially when an infringement is discovered early on, the infringer has often not yet made any significant profit from the infringement. In practice, the calculation of damages in copyright law based on the license analogy is therefore the most widely used.
The procedural enforcement of claims for damages under copyright law
The threefold calculation of damages is already a considerable relief for the rights holder. Nevertheless, the burden of proof for the judicial enforcement of a claim for damages is as follows: the copyright holder whose rights have been infringed must prove both the copyright infringement and the defendant’s intent or negligence. This can sometimes be difficult, especially with regard to fault. Anyone taking legal action to claim damages under copyright law should carefully consider both the possible problems of proof and the choice of calculation method.