Not that many IP related cases make it all the way to the German Federal Constitutional Court “Bundesverfassungsgericht” (not to be confused with the Bundesgerichtshof), so this Kat was intrigued to read about a constitutional complaint filed against a court decision that related to a copyright dispute.
The German Bundesverfassungsgericht (case reference: 1 BvR 1991/09 of 26 April 2010) recently decided in favour of an online map service provider that had filed a constitutional complaint against a court decision of the Amtsgericht Hamburg of 2 June 2009 (case reference: 36A C 60/09) concerning a copyright dispute between the online map service and a website owner that had uploaded one of the online map service’s copyrighted maps to its own website. The Hamburg court had not granted leave to appeal its decision in this dispute and the aggrieved online map service filed a complaint to Germany’s highest court citing a violation of its constitutional right to right to be heard (“rechtliches Gehör”) .
But all was not lost. The Bundesverfassungsgericht, which can of course only look at this matter from a constitutional law point of view, decided that the Hamburg Court had infringed the online map service’s right to due process (Rechtsschutzgarantie) under Article 2(1) in combination with Article 20(3) German Basic Law (Grundgesetz), which is Germany’s constitution. The Bundesverfassungsgericht further held that the trial court should have granted leave to appeal under Article 511 (4) Sentence 1, No. 1, Alternative 3 German Code of Civil Procedure (ZPO) to allow for a ‘uniformity of judicature’.
Why "uniformity of judicature'? In its decision the Hamburg court had followed the reasoning and arguments of a precedent from the Regional Court of Berlin (case reference 15 S 1/07) which was a minority opinion within the precedents of the German courts. For those of you that are common law qualified, please note that the courts in Germany are a lot more independent in how they decide and which earlier court decisions they wish to follow - albeit not completely free as this case illustrates. The Berlin court, which the Hamburg court decided to follow, had previously decided that 'accidentally noticing' a copyrighted image or an 'intentional search or investigation by the copyright owner via a search engine or by using a searching software did not qualify as making “public” under Article 19a.
With the constitutional complaint having been successful, the online map service can now file its appeal.