09. Dec 16

BGH: Merely advertising bootlegs is enough to constitute a copyright infringement

Simply advertising counterfeit products of an artist is sufficient to constitute an infringement of his rights under copyright law. This comes from a ruling of the Bundesgerichtshof (BGH), Germany’s Federal Constitutional Court (Az.: I ZR 88/13).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: The BGH held that an artist’s exclusive right of distribution also encompasses offering his CDs, DVDs and similar data for sale as well as advertising these products.

In the instant case, an artist’s concert had been recorded and burnt on DVD without the permission of the musician in question. The DVD was offered for sale, among other places, on a sales platform. The artist subsequently took action against this. After receiving a formal warning, the merchant removed the offer from its site and issued a declaration of discontinuance with a penalty clause, but did not believe it should cover the costs associated with the warning notice.

However, the BGH took a different view, ruling that the merchant had been selling the goods on offer in its own name and on its own account and not simply providing third parties with a platform to this end. The Court therefore concluded that the merchant was responsible for the offers, even if it had no knowledge of the copyright infringement.

Within the European Union, artists have an exclusive right of distribution in relation to their performances and any copies thereof. Accordingly, they are entitled to permit or forbid the dissemination of their work to the public by sale or otherwise. The Court of Justice of the European Union has also established that it is possible owing to the exclusive right of distribution with respect to a protected work to forbid invitations to purchase and targeted advertising if it is not proven that the products ended up being sold thanks to the advertising. Additionally, it held that an artist’s exclusive right of distribution equally encompasses the dissemination of any audio or visual medium that the work was recorded on as well as the advertising for this.

Copyright law affords both conceptional and material protection to intellectual property. Having said that, it can prove to be difficult adducing evidence in relation to intellectual property rights. To prevent copyright infringements from occurring and protect oneself against these, it is a good idea to consult a lawyer who is versed in the field of copyright law.

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