It is no secret that a considerable number of copyright infringements take place on the internet. This often raises the question of which national law applies. For example, if a German photographer uploads his photo to the Internet and it is posted by an Italian on vacation in Hawaii without the photographer’s consent, it is not clear at first glance which law applies. German, Italian or US law? And which court decides? The Regional Court of Hamburg has now made a decision on this that deviates significantly from the previous approach of the Federal Court of Justice (LG Hamburg, judgment of 16.09.2022, ref. 310 O 442/20).
Copyright infringement in Cyrillic online store
The plaintiff manufactures and sells items of clothing. It produces the corresponding product photos itself and licenses them to third parties. The defendant had used a total of 149 of the plaintiff’s images for its online store without permission. The parties are both based in Germany, but the web store can be accessed under a Russian and Ukrainian domain and predominantly uses Cyrillic characters. There are also some German error messages on the website or article descriptions.
When the plaintiff’s photos are retrieved via Google, they are redirected to the defendant’s website. The plaintiff then initially sent a warning letter in which it attempted to assert claims for injunctive relief, information and damages. The out-of-court settlement attempt was unsuccessful and legal action was required. In the course of a test purchase, the plaintiff was able to determine that the goods had been shipped from Germany and therefore also brought an action before the German courts.
BGH: Retrievability sufficient
To date, case law has predominantly followed the Federal Court of Justice and has affirmed both the question of jurisdiction and the applicability of national law for Germany, provided that the copyright-infringing content can be accessed in Germany. It is not necessary for the website in question to be aimed at German users, i.e. to be written in German. Rather, it is sufficient for local jurisdiction if a foreign-language website can be accessed in Germany. Subjective elements, such as the orientation of an online store towards German buyers, are not relevant to the BGH.
LG Hamburg: Application of German law requires economic domestic connection
The Hamburg Regional Court initially declared that it had local jurisdiction, but denied the plaintiff’s claim under German law.
The Hamburg court ruled that the decisive factor for the application of German law was whether an act reserved for the author was carried out in Germany or whether the actor wanted to specifically address Internet users from Germany. The mere possibility of retrieval is not sufficient for this. The court wanted to prevent an extension of the protection of domestic legal positions that restricted the economic development of foreign companies.
In the specific case, the court did not consider the requirements for the claims asserted by the plaintiff to be met. A sufficient commercially relevant domestic connection (“commercial effect”) is required. In the present case, the Russian and Ukrainian domains were already sufficient to deny such a connection; the website was clearly not aimed at the German market.
LG Hamburg as a loner
It is not to be expected that the ruling from northern Germany will affect the other courts. The Regional Court of Cologne, for example, once again took the path of the Federal Court of Justice in a legal dispute with similar problems at the end of last year. In its decision, the Hamburg court failed to recognize that a subjective domestic reference used as the basis for the decision cannot be reconciled with the country of protection principle applicable to Germany in this respect. Accordingly, every copyright dispute is subject to the law of the country for whose territory protection is claimed. If, as in the present case, the infringing website can be accessed in Germany, German law must also apply in accordance with these principles.