BGH; 2022-06-02; I ZR 57/17
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2022:020622UIZR57.17.0
Date: 2022-06-02
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82022DE0602(52)_ENG_SUMJURE
JURE summary
JURE summary
A film producing company and the owner of exclusive usage rights to the movie ‘Fack ju Göhte’ (hereinafter ‘the plaintiff’) filed an action against the operator of the share-hosting service ‘uploaded’ domiciled in Switzerland (hereinafter ‘the defendant’) claiming a violation of its usage rights to this movie.
The defendant offers free storage space for anyone to upload data with any content. The defendant creates a download link to every uploaded file which it sends to the user. The users can place such download links in collections of links operated by third parties, thus enabling other users to access the files stored on the servers of the defendant.
The above movie was accessible through several links placed on the servers of the defendant.
The Landgericht München (hereinafter ‘the Court of First Instance’) as the court seised under Article 5(3) of the new Lugano Convention (1) found the defendant to be an accessory to the copyright infringements.
Based on an appeal of the defendant, the Oberlandesgericht München (hereinafter ‘the Court of Appeal’) dismissed the action stating that the defendant could not be deemed an offender or accessory to the offence. The contribution of the defendant consisted solely in the provision of technical means for making the content publicly accessible. An indirect liability or liability due to omission was also to be denied.
The revision filed by the plaintiff with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) was successful.
The decisive factor for illegal public communication is whether the conduct of the defendant met two elements of an offence under Article 3(1) and (3) of the Directive 2001/29/EC (2) - the act of communication and the public nature of the communication.
The public nature of the communication was evident as the download links were available to an indefinite number of potential recipients, and the works could be accessed by a number of people at the same time or one after another. The defendant used a technical procedure that made a protected work available to a new audience which was not intended by the owner of the copyright. Regarding the topic of communication to the public, the Court of Justice of the European Union decided that operators of share-hosting platforms have a central role regarding possible contents infringing rights of third parties. However, it is necessary to assess individually with regard to the specific context of whether a communication to the public really occurred. That was the case within this dispute.
Despite the fact that the defendant knew or was supposed to know that contents violating the rights of others were accessible on its platform (3), the defendant failed to take appropriate technical measures to effectively and plausibly deal with the copyright infringement.
The Supreme Court annulled the decision of the Court of Appeal and referred the case back to the Court of Appeal for a new hearing and decision.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
(3) The defendant’s website contained links to more than 9,500 works which were reported as having their copyright infringed.