Anyone whose copyright or another right protected under the Copyright Act is infringed can demand that the infringer removes the impairment in addition to injunctive relief, information and compensation. This is regulated in Section 97 para. 1 sentence 1 Alt. 1 UrhG. The Copyright Act thus supplements the right to injunctive relief in all those cases in which an injunction alone is not sufficient to eliminate the disturbing condition – for example, if a forged painting was provided with a false signature.

Requirements for the right to removal under copyright law

The claim is directed against persistent interference with a protected right. The prerequisite for a claim for removal is therefore the existence of a specific disturbance. However, fault on the part of the disturber – i.e. intent or negligence – is not required.

However, the right to removal in copyright law is subject to the general principle of proportionality. This means that the removal measure demanded by the rights holder must be suitable and necessary to eliminate the disturbance complained of by the rights holder. This is not the case, for example, if another, milder measure is available that also eliminates the disturbance (see BGH, judgment of March 12, 1954, Ref.: I ZR 201/52).

Furthermore, the required removal action must be reasonable for the infringer. This always requires a comprehensive balancing of interests (see BGH, judgment of June 9, 1983, Ref.: I ZR 70/81). There is no generally applicable formula as to when removal is reasonable for the infringer. The chances of success of a judicial enforcement of the claim for removal are therefore always dependent on the individual case.

Legal consequences and costs of the claim for removal

If the requirements of the claim for removal are successfully demonstrated, the infringed party can demand the removal of the specific infringement. The costs of the actions required for this are generally borne by the infringed party (see BGH, judgment of December 14, 1961, case no.: VII ZR 153/60).

If, in exceptional cases, the infringed party removes the impairment himself, he may be able to demand compensation for the costs via other claims under copyright and civil law. Examples include the claim for damages under Section 97 para. 2 sentence 1 UrhG or the claim for reimbursement of expenses arising from management without mandate.

Relationship of Section 97 para. 1 sentence 1 Alt. 1 UrhG to other claims for removal

A claim for removal of a disturbance may also arise on other legal grounds. This is because the content of other claims for infringement of a copyright can be identical to that of a claim for removal under Section 97 para. 1 sentence 1 Alt. 1 UrhG may overlap.

For example, in the case of a claim for destruction, recall and/or transfer under Section 98 UrhG. Some are even of the opinion that the claim under Section 98 UrhG supersedes the claim for removal if the requirements are met. Furthermore, a claim for removal can arise from a claim for damages. However, as this requires the infringer to be at fault, it can be more difficult for the rights holder to enforce removal.

As a general rule, which claim enables the rights holder to assert his interests most effectively is always determined by the particular details of the case.