In order to ensure that the author can safely enforce claims due to an infringement of his rights, German (copyright) law grants various claims for information against the infringer and, under certain circumstances, also against third parties. These claims for information are not independent claims, but merely claims that are added in addition to others.
§ Section 101 (1) UrhG: Copyright claim for information against the infringer
First of all, Section 101 (1) sentence 1 UrhG grants the author a claim for information against the infringer. The prerequisite for this is an infringement of rights on a commercial scale.
According to the legislator’s explanatory memorandum, such an extent exists if the infringements are carried out for the purpose of obtaining a direct or indirect economic or commercial advantage. According to Section 101 para. 1 sentence 2 UrhG, not only the number but also the severity of the infringement plays a role in the assessment of such a case. For example, in cases of file sharing, not only the number but also the size of the files made available must be taken into account. If, for example, an entire film has been uploaded, this indicates a commercial scale of the infringement. If only short excerpts of the film were provided, this should not be the case.
However, case law has not yet agreed on fixed categories of infringements on a commercial scale. In addition, it sometimes applies different standards of assessment. Enforcing the right to information against the infringer under Section 101 (1) UrhG can therefore be quite difficult in practice.
§ Section 101 (2) UrhG: Right to information against non-infringers
In addition, the author is entitled to information from third parties who are not themselves infringers in accordance with Section 101 (2) sentence 1 UrhG. This includes persons who
- are in possession of infringing copies,
- have made use of infringing services,
- have provided services that have been used for infringing activities or
- have participated in the production, manufacture or distribution of the infringing copies, other products or services.
In order to reduce the duty to provide information to a reasonable level, a claim against third parties also requires a commercial scope of the respective actions. In order to secure a legitimate interest in a claim, there must also be an obvious infringement of the law. Alternatively, the infringer must have already been sued.
In practice, the claim under Section 101 (2) UrhG is primarily directed against host providers. This obliges them to provide the author with information about IP addresses as well as uploaded and downloaded content. However, due to the aforementioned difficulties in interpreting the term “commercial scale”, enforcing these claims can also be complicated. This applies in particular because the copyright holder bears the burden of proof in court.
The scope of the right to information in copyright law
If the requirements of Section 101 (1) or (2) UrhG are successfully demonstrated, the scope of the duty to provide information is determined in accordance with Section 101 (3) UrhG: According to this, the defendant is initially obliged to provide information about the origin and distribution channel of the copies. Specifically, this includes the names and addresses of the manufacturers, suppliers and other previous owners of the copies. Furthermore, the infringer or third party must provide information on the quantities and prices of the reproductions.
To protect the party obliged to provide information, the scope of the right to information is limited to precisely this information. In particular, the infringer does not have to provide detailed business documents. As a rule, the information specified in Section 101 para. 3 UrhG is sufficient.
§ 101a UrhG: The right of presentation and inspection
In addition to information, the infringed party can also demand that the infringer submit documents or inspect objects, Section 101a (1) sentence 1. This option serves to secure evidence and supplements the right to information against the infringer. The prerequisite for such a claim is that copyright rights have been infringed with sufficient probability. In addition, the claim must be proportionate, Section 101a para. 2 UrhG.
In the event of an infringement on a commercial scale (cf. the explanation above), the right of production under Section 101a UrhG is extended in Section 101b UrhG to include the production of banking, financial or commercial documents.
When time is of the essence: Information in preliminary injunction proceedings
The enforcement of claims for information normally takes place in so-called “main proceedings” before a civil court. However, as this can take a long time, Section 101 (7) and Section 101a (3) give the infringed party the option of asserting their claims in so-called “interim injunction proceedings”. The court then decides within a few days on the injured party’s claim for information, production or inspection. This gives the injured party the opportunity to enforce their rights quickly and cost-effectively.
§ SECTION 242 BGB: General right to information
In addition to the aforementioned claims for information arising directly from copyright law, an author is also entitled to information in good faith (Section 242 BGB). Based on the meaning and purpose of claims for information, however, this only exists if certain conditions are met. The case law summarizes these as follows:
[A] claim for the provision of information presupposes that the injured party is excusably uncertain about the existence or scope of his claim for damages or compensation for enrichment and cannot reasonably obtain the information necessary to assert these claims himself, while the infringer can provide it without difficulty, i.e. without being unreasonably burdened
BGH, judgment of June 13, 1985, Ref.: I ZR 53/83
If these conditions are met, any claims arising from copyright remain unaffected. They can be asserted independently of this. This will often make sense in cases where the requirements are met. The significance of the right to information under Section 242 is therefore generally limited to cases in which the defendant is not acting on a commercial scale.
Together with the claims under copyright law, Section 242 BGB thus creates a system of claims for information that enable the author to securely enforce his rights to injunctive relief, removal and damages for infringement.
