LG Hamburg; 2015-01-30; 308 O 105/13
Decision by national courts in the field of European Union law — ECLI:DE:LGHH:2015:0130.308O105.13.0A
Date: 2015-01-30
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82015DE0130(51)_ENG_SUMJURE
JURE summary
JURE summary
An agency (hereinafter ‘the plaintiff’), which manages the rights of use and exploitation of musical works protected by copyright for their members as a fiduciary, filed an action against an foreign joint-stock company (hereinafter ‘the defendant’) as a provider of a paid data storing services, seeking the provision of information and a declaratory judgment that the defendant is obliged to pay compensation for damage.
The plaintiff expressed the opinion that besides the users, who upload musical works to the defendant’s server and publish the respective download links, the defendant was also liable for creating public access to illegal copies of the 137 musical works, being the subject-matter of the dispute, as an accessory under Article 830 and 840 BGB (1).
These 137 musical works had already been the subject-matter of a previous legal dispute (2) between the plaintiff and the defendant dealt with by the Landgericht Hamburg (hereinafter ‘the Court of First Instance’) which ordered the defendant to cease and desist from making a total of 4,815 musical works publicly accessible. Despite the fact that both the appeal and revision of the defendant had been dismissed, it was still possible to download the relevant 137 musical works from the defendant’s server.
The action was admissible and for the most part justified.
The Court of First Instance had international jurisdiction under Article 5(3) of the Lugano Convention (3). Due to the fact that the data was accessible in Hamburg, Hamburg was the place where the harmful event occurred. The Court of First Instance therefore had local jurisdiction.
In relation to the musical works, the defendant infringed the right under Article 19a UrhG (4) as it enabled the access to protected musical works through its service and failed to meet its increased examination and inspection duties after having been informed about the infringement of protected rights. Even though it was not the direct intention of the defendant to infringe the law, according to the common practice, it must have had taken such infringement into account. In this way, the defendant provided assistance to the breach of the copyright law.
The Court of First Instance ordered the defendant to provide information and accounts regarding the whole turnover and costs to the plaintiff. The defendant was further ordered to pay to the plaintiff the compensation for the use of 137 musical works in Germany in the relevant period.
(1) Bürgerliches Gesetzbuch. (German Civil Code).
(2) Judgement of 12 June 2009, file no.: 310 O 93/08.
(3) Convention on jurisdiction and the enforcement of judgments in civil and commercial matters - Done at Lugano on 16 September 1988.
(4) Urheberrechtsgesetz. (Act on Copyright and Related Rights).