Anyone who uses a copyright-protected work without the consent of the copyright holder must expect to be held liable. The most likely, but not the only, consequence of this is the assertion of a claim to cease and desist the copyright infringement, Section 97 UrhG.

Normal civil proceedings as the standard case of legal enforcement in copyright law

As a rule, the law provides for “normal” civil proceedings to enforce a claim for injunctive relief, Section 104 UrhG. This gives the infringed party the opportunity to bring an action for injunctive relief before a civil court. However, this process can be very time-consuming and costly. Proceedings lasting several months to years are not uncommon, especially in cases of complex copyright infringements.

When time is of the essence: The preliminary injunction procedure in copyright law

It is obvious that long proceedings are contrary to the interests of the infringed party. The latter is keen to stop the infringement as quickly as possible in order to avert further financial damage (and possibly reputational damage).

In order to make this possible, the injured party has the option of asserting their claim for injunctive relief in so-called preliminary injunction proceedings in accordance with Sections 935 and 940 of the German Code of Civil Procedure (ZPO). If the requirements are met, the court issues an injunction at short notice at the request of the injured party. The infringer is thereby obliged to refrain from the alleged infringement – such as the use of third-party images or texts – with immediate effect.

Possibility of a copyright warning, § 97a UrhG

First of all, the infringer should be given the opportunity to avert legal proceedings. As a rule, this is done by issuing a warning to the infringer and submitting a cease-and-desist declaration under Section 97a UrhG.

However, such a warning is not a mandatory requirement for preliminary injunction proceedings. The rights holder can also decide to apply for a court injunction without a prior warning. In this case, the court will have to hear the opposing party before issuing the injunction. If there has been a warning and a response to this, the court will often allow this response to suffice. In practice, there are therefore rarely oral hearings in preliminary injunction proceedings. This also speeds up the proceedings considerably.

Establishing a prima facie case of copyright infringement

As a first requirement, the rights holder must demonstrate to the court that a copyright infringement has occurred. To do this, the facts from which the infringement arises must be made “credible” to the court. This is only possible if the judge is convinced that the applicant’s presentation is “predominantly probable”. To this end, the rights holder can make use of all admissible evidence in accordance with Section 294 ZPO, such as the submission of relevant documents. In addition, affidavits are also a possible means of establishing credibility.

Making the urgency of the preliminary injunction in copyright law credible

However, the applicant must also credibly demonstrate that their matter is urgent. When this is the case is a question of the individual case – there is no standard formula.

However, case law has established that the urgency of the matter does not apply if the infringed party waits too long after becoming aware of the copyright infringement before applying for a temporary injunction. The required period of time is assessed differently by the courts. However, it is certain that a period of four weeks from knowledge of the infringement should not be exceeded if possible.

Some courts also grant the author six weeks to “think it over”. However, if a rights holder is considering applying for an interim injunction, it should still be done quickly. Otherwise, the only option is “normal” civil proceedings.

Consequences of an interim injunction in copyright law

If the copyright infringement and urgency can be substantiated, the court will issue an interim injunction. As already explained, this typically obliges the infringer to refrain from the infringing act (such as the reproduction of third-party texts). If the defendant fails to comply with these conditions, the court can impose a fine or even imprisonment to enforce the injunction.

These consequences of an interim injunction, coupled with the short duration and relatively small scope of the proceedings, guarantee the rights holder a cost- and time-efficient enforcement of his interests.

Options for responding to an interim injunction in copyright law

However, the defendant is not without protection if a temporary injunction is issued against him. Among other things, he has the following options for responding:

• If there is a suspicion that a temporary injunction could be applied for in the near future (e.g. due to a warning), it is possible to submit a so-called protective letter in accordance with Section 945a ZPO. In this letter, you can explain to the court as a precaution why a possible application should be rejected.
• If an interim injunction has already been issued, the defendant can lodge an objection in accordance with sections 936, 924 ZPO. The court will then summon the parties to an oral hearing. At this hearing, the defendant has the opportunity to defend himself. If the court considers this defense to be justified, it will revoke the order.
• The defendant can also enforce “main proceedings” in accordance with Section 926 ZPO. In this case, the court sets the rights holder a deadline for bringing a “regular” action. However, the injunction remains effective until then.
• Finally, the defendant can – if he considers the interim injunction to be justified – submit a so-called final declaration. In such a case, he recognizes the interim injunction as a final settlement of the matter. Separate main proceedings are then no longer necessary.

Which of these different response options makes the most sense depends on the individual case. As each is associated with different consequences and other considerations may also play a role, this should be carefully weighed up in order to be able to react appropriately to an interim injunction in copyright law.

The preliminary injunction in copyright law to enforce other claims

The preliminary injunction in copyright law is mainly used to enforce claims for injunctive relief under Section 97 UrhG. However, it is also possible to enforce claims for information and for submission and inspection under Sections 101, 101a UrhG in preliminary injunction proceedings. However, this rarely happens in practice – the main area of application is the claim for injunctive relief under copyright law.