Before claims arising from the infringement of copyrights are asserted in court, the rights holder should issue a warning to the infringer in accordance with Section 97a UrhG and request that they submit a cease-and-desist declaration with a penalty clause. Due to the increasing spread of so-called online piracy – such as the “illegal” downloading of music or films – this regulation has become increasingly important for the enforcement of copyrighted rights in recent years.
Purposes of a warning letter in copyright law
The requirement to issue a warning is intended to achieve two things: Firstly, it serves to relieve the burden on the courts. As the Copyright Act encourages the parties to settle the matter between themselves (a warning is not mandatory in copyright law), many copyright infringements can be settled by means of warnings. On the other hand, the regulation serves the injured party: the possibility of a warning letter offers him the opportunity to enforce his rights in a cost- and resource-efficient manner.
Despite these valid objectives, the institute of warning letters has repeatedly been the subject of public criticism in recent years. In particular, so-called “mass warnings” have been repeatedly criticized by the media and consumer associations as abusive behavior. The legislator obviously felt that this was justified: The regulation on the requirement to issue warnings has been repeatedly revised since its introduction into the Copyright Act in 2008.
Formal requirements for a warning letter
In the course of these revisions, the legislator decided, among other things, to establish four formal requirements for the effectiveness of a warning notice in Section 97a UrhG para. 2 for the effectiveness of a warning. These are intended to prevent abuse of the warning option. The following applies in detail:
- The warning letter must first contain the name or company name of the infringed party, unless the infringed party declares the warning itself. This requirement takes account of the fact that most warnings are written by lawyers.
- The warning must also contain a precise description of the infringement. This should make it clear to the infringer what exactly they are being accused of.
- If payment claims are also asserted, the amount of the respective compensation must be precisely itemized in the warning letter.
- If the warning letter contains a request to issue a cease-and-desist undertaking, it must be stated whether the proposed cease-and-desist undertaking goes significantly beyond the infringement for which the warning letter was issued.
Consequences of a justified warning in copyright law
If all these requirements are met, the warning is formally effective. The consequences of such an effective warning are determined by whether it is justified. The decisive factor is whether the warning notice asserts an actually existing and enforceable claim for injunctive relief due to a copyright infringement.
If this is the case, the party issuing the warning can demand reimbursement of the expenses required for the warning (Section 97a (3) sentence 1). These expenses primarily include legal fees. However, they also include costs associated with investigating the infringement, such as costs for technical reports or test purchases.
Consequences of an unjustified warning
If the warning letter does not assert an actually existing and enforceable claim for injunctive relief, this is referred to as an unjustified warning letter. In such a case, the warned party is entitled to compensation for the expenses required for legal defense pursuant to Section 97a para. 4 sentence 1 UrhG (German Copyright Act) to demand compensation for the expenses required for legal defense. As a rule, these expenses also include legal fees. The same applies if the warning is ineffective, i.e. the formal requirements have not been met.
It should be noted that this claim for reimbursement of costs does not apply if it was not apparent to the warning party at the time of the warning that the warning was unjustified, Section 97a para. 4 sentence 1 UrhG. However, the burden of proof lies with the warning party.
Options for responding to a copyright warning
The distinction between a justified and unjustified warning is not only important for determining the legal consequences of a warning. It is also relevant when it comes to the question of the reaction of the warned party to a warning issued:
- If the person being warned considers the warning to be justified, they can fulfill the claim of the person issuing the warning and submit a cease and desist obligation with an appropriate contractual penalty. In this case, it may be worthwhile to formulate your own cease-and-desist declaration in order to avoid committing yourself to more than is legally necessary.
- If the person being warned considers the warning to be (partially) unjustified, they can file a so-called negative declaratory action with the court. In this action, he can apply for the court to declare that the alleged infringement does not exist at all. In addition, he can, of course, simply wait and see whether the warning party brings an action.
- If the warned party does not respond to the warning, the warning party must consider whether to file a “proper” lawsuit or first try to enforce its rights in preliminary injunction proceedings.
Which of these different response options is the most appropriate for the parties involved in each individual case depends on the individual case. As each response option is associated with different consequences and other considerations may also play a role in some cases, the options should be carefully weighed up to ensure an appropriate response to a warning.