Anyone whose copyright or another right protected under the Copyright Act is infringed can demand that the infringer cease and desist from infringing the right, in addition to removal, information about the infringement and compensation, Section 97 para. 1 sentence 1 Alt. 2 UrhG. As this claim serves to prevent future infringements, this claim for injunctive relief also exists if an infringement is threatened for the first time.
In the event of copyright infringement: existence of risk of repetition
If a protected right has already been infringed, a claim for injunctive relief under copyright law requires a concrete risk of repetition. However, the infringement of a right generally indicates such a risk. This is because an infringement that has already been committed suggests that there is a risk of repetition by the infringer. In these cases, one therefore also speaks of an indicated risk of repetition.
In order to dismiss the resulting claim in a lawsuit, it is therefore up to the infringer to prove that there is no concrete risk of repetition. This usually requires the submission of a cease-and-desist declaration. In this declaration, the opposing party must make a serious commitment to cease and desist from infringing the rights, in particular by recognizing a contractual penalty. In practice, this is usually done in the context of a warning issued before the lawsuit, Section 97a UrhG. However, a mere declaration of intent in which the admonished party declares that it no longer intends to commit the infringement is not sufficient.
Otherwise required for injunctive relief: risk of first occurrence
If, on the other hand, no copyright infringement has yet taken place, a claim for injunctive relief requires a concrete threat of first infringement (so-called preventive injunctive relief). Such a risk only exists if there are serious and tangible indications that the opposing party will act unlawfully in the near future. An example of this is preparatory acts, such as ordering material to make unauthorized reproductions of copyrighted works.
In contrast to the claim for injunctive relief pursuant to Section 97 para. 1 S. 1 Alt. 2 UrhG, there is no presumption of a risk of first infringement in favor of the alleged claimant. In court proceedings, the burden of proof with regard to the risk of first infringement therefore always lies with the claimant. It can therefore be difficult to enforce a preventive injunction claim in individual cases.
Scope of a claim for injunctive relief under copyright law
If the claimant succeeds in proving the requirements of Section 97 para. 1 UrhG, he has a claim for injunctive relief against the infringer. What exactly is covered by this claim has been specified by case law over the years: In any case, the claim initially covers the specific infringements to which the risk of repetition or first infringement relates.
In addition, however, essentially similar acts of infringement are also covered, in which the characteristic of the specific form of infringement is expressed, the so-called “core theory” (see BGH, decision of April 3, 2014, case reference: I ZB 42/11). A ban on the unauthorized use of certain photos on a website on the internet therefore also covers the unauthorized use of the same photos on another website.
In practice, this offers the claimant the advantage that the interferer cannot circumvent the prohibition simply by slightly modifying his action. If the author is therefore entitled to injunctive relief, this provides him with comprehensive protection of his rights.