Recent developments from Germany highlight significant rulings by the German Federal Supreme Court (Bundesgerichtshof – BGH) regarding the liability of online marketplaces for copyright infringements committed by their users. The judgment, delivered on October 23, 2024, addresses the responsibilities of platforms in the context of the European Union's liability framework for indirect copyright infringements. The BGH articulated three key principles regarding the liability of online marketplaces. Firstly, it affirmed that the legal standards applicable to video-sharing and file-hosting platforms regarding the public communication of copyrighted works can also extend to online marketplaces. Secondly, it established that once an online marketplace is notified of a clear copyright violation, it is generally required to investigate similar listings and take appropriate action, such as blocking or removing infringing content. However, the court emphasized that the obligation to monitor is limited to similarly presented listings rather than all potential uses of the copyrighted work. Lastly, the BGH clarified that the liability principles concerning public communication do not apply to reproductions of copyrighted works stored on a platform's servers, which remain subject to traditional criminal law principles. The case arose from a dispute involving an online marketplace where a seller unlawfully advertised a television using a copyrighted photograph of the Manhattan Bridge. The court examined relevant EU directives and German laws, concluding that online marketplaces do not qualify as perpetrators under the German Copyright Liability Act, as they fall outside the definition of online content-sharing service providers. Nonetheless, the BGH recognized that the liability framework established by the Court of Justice of the European Union (CJEU) in prior cases was applicable to online marketplaces, provided that the marketplace plays an indispensable role in the infringement and breaches a duty of care. In its ruling, the BGH determined that the marketplace could not be held liable for the seller's reproduction of the copyrighted photograph on its servers, as the seller retained sole control over the infringement. The court also dismissed any claims of aiding and abetting, citing insufficient intent. Furthermore, the BGH rejected the application of the German concept of "Stoererhaftung" (liability for causing harm) since the infringing act had ceased before the marketplace was notified. This ruling underscores the evolving landscape of platform liability in the EU and Germany, suggesting a nuanced approach that distinguishes between various types of copyright infringements while emphasizing the need for a harmonized liability framework across the EU.
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Read the full article on the original webpage: https://copyrightblog.kluweriplaw.com/2025/01/13/german-news-on-the-eu-liability-concept-for-indirect-infringers-of-copyright-a-push-forward-by-the-bgh-for-communication-to-the-public-and-a-step-back-for-reproduction/
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