Kammergericht Berlin; 2020-01-16; Amazon; 2 U 12/16 Kart
Decision by national courts in the field of European Union law — ECLI:DE:KG:2020:0116.2U12.16KART.00
Date: 2020-01-16
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0116(51)_ENG_SUMJURE
JURE summary
JURE summary
A perfume manufacturer and its German distribution company (hereinafter ‘the plaintiffs’) filed an action against a company domiciled in Luxembourg (hereinafter ‘the defendant’) which operated a section called ‘marketplace’ on its online platform www.a....de where third persons could place their offers, complaining that product images of the plaintiffs were shown on this section.
The plaintiffs sought that the defendant cease and desist from making these images accessible and provide information regarding the scope of use of specific product images and their origin.
The Landgericht Berlin (hereinafter ‘the plaintiff’) decided in favour of the application. The defendant as the operator of an online sales platform was liable as offender for the unauthorised depiction of product images by online sellers, as the defendant could influence this by using an algorithm to determine which images were shown for the specific offers and was therefore intervening in the autonomy of the individual sellers.
The defendant pursed the dismissal of the action further by lodging an appeal with the Kammergericht Berlin (hereinafter ‘the Court of Appeal’) stating it could not be sued due to the fact that it merely provided legal access to the platform and the relating infrastructure for the sale of the products of the sellers who were uploading the texts and products by themselves. The pursued claims in the area of copyright law were in fact a breach of antitrust laws. The sole aim of the plaintiffs was only to strengthen their selective distribution system which would lead to a limitation of online sales through open marketplaces and price search engines.
The appeal of the defendant was partially successful.
The international jurisdiction of the German courts regarding an unauthorised use of the respective images followed from Article 5(3) of the Brussels I Regulation (1).
The appeal could be justified if the Court of First Instance assumed that the plaintiffs had claims against the defendant resulting from the use of electronic images of witness F. In this case, these images were neither a protected work under Article 2(1)and(2) of the UrhG (2) nor were they protected as photographs under Article 72. The aesthetics of the author’s own intellectual creation did not reach such a level where circles familiar with or receptive to art would consider it to be an ‘artistic’ performance.  The images did not represent a photograph under Article 72 of the UrhG. A depiction of a virtual item made on a computer with the use of electronic commands, despite resembling a photograph, did not meet the required preconditions. What was decisive was not the result of the creation process but the creation procedure.
With regard to the real photographs of witness M., the claims pursued by the plaintiffs were substantiated.
The Court of Appeal changed the decision of the Court of First Instance accordingly and dismissed the appeal of the defendant as for the rest.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Gesetz über Urheberrecht und verwandte Schutzrechte (Act on Copyright and Related Rights).