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Tuesday, 3 May 2011

Copyright infringing maps: "remove absolutely everything"

Several German websites report on an interesting case decided by the District Court of Munich (AG München, case reference 161 C 15642/09 of 31 March 2011). According to the court’s helpful press release of 26 April 2011 (please click here), the Munich court held that the use of a copyright protected map on a website without paying licensing fees to the claimant falls foul of Article 19a German Copyright Act.


By way of background: similar to Article 3 Copyright Directive, Article 19a German Copyright Act states as follows: ‘the right to make available to the public is the right of making a copyright work accessible to the public “on a wired or wireless basis” (in German: 'drahtgebunden oder drahtlos') in a way that members of the public may access the work from a place and at a time individually chosen by them’.


The claimant, an online map service provider, had objected to the defendant’s use of its copyrighted map on the defendant’s website since the defendant had not paid any licensing fees. The claimant had previously contacted the defendant and asked him to remove the map. The defendant had agreed and even paid damages to the claimant but while the defendant had deleted the direct link to his homepage, the map was nonetheless still available on the defendant’s server and could be found by third parties via Internet search engines. The court found that third parties still had access to the map in the sense of Article 19a German Copyright Act so that the defendant was liable for damages. Deleting the link from the defendant’s website in itself was not enough to prevent liability. The defendant had argued that he had removed the direct link and even had paid damages. He had not, however, known that he also had to delete the map from the server. The judge decided that the defendant’s behaviour amounted at least to negligence. The damages awarded amounted to fictitious licensing fees and the defendant also had to reimburse the costs for the cease and desist letters ('Abmahnungen') sent by the claimant’s lawyer.


Merpel is rather impressed with the court’s press release, which ends with an “excursion” explaining that unlawful use of third party copyright works can be 'very costly' and that in cases of infringement users should ensure that ‘absolutely everything has been removed’. Who says courts can’t explain things clearly?

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