Liability for Internet-based copyright infringements

Internet-based channels of scholarly communication also give rise to the question as to who must reimburse an injured party for damage arising from an infringement of intellectual property rights as a result of placing information on a publicly accessible network. In other words, who is liable for an infringement of rights? In particular, repository operators and authors who make their documents available on their own personal websites may be exposed to liability risks if they do not accurately assess their own behaviour in advance. However, it is possible to minimize the risks through appropriate contractual arrangements.

Legal basis of liability for providing access to information in electronic networks

An infringement of intellectual property rights may take the form of an infringement of the exclusive rights of the author or of exclusive rights of use granted by the author to a third party, for example a publisher. If the infringement occurs via the Internet, the injured party is often able to identify only the operator of the website. However, this does not mean that the operator of the website – irrespective of whether it is a private website or a repository – is automatically liable for an infringement of rights. A distinction must be made as to whether the document that has been made publicly accessible in an infringing way is the website operator’s own content, content that has been appropriated by the website operator, or third-party content.

“Own content” refers to information that the website operator – that is, the service provider within the meaning of section 2 (1) of the German Telemedia Act (TMG) – has entered him-or herself. “Entered him- or herself” does not mean that the website operator entered the information personally. Rather, it may have been entered on behalf of the operator by an employee or by a third party – for example a web designer – commissioned by the operator to do so. Nor must the information have been created for the first time. Rather, it is sufficient that already existing own or third-party information is integrated into the operator’s website.

However, this also means that third-party information can become own information if it is adopted by the website operator. The website operator is responsible for this content according to section 7 of the German Telemedia Act (TMG). For the original service provider, the information thus becomes third-party information once it is on the website of the party that has adopted it. Thus, third-party information is information that has been entered and integrated into the website by a third party. The website operator is not responsible for third-party content (section 10 TMG), irrespective of whether it is retained on his or her website for a third party and is recognizable as such or it is on the website of a third party.

In a strand of case law that has been much criticised in the legal literature, the view is taken that the operator of a website can appropriate third-party information in such a way that it must to be treated as if it were own information. This is deemed to be the case especially when the website operator him- or herself or through an employee or a commissioned third party editorially checks or prepares third-party information before placing it on his or her website or when he or she integrates third-party information into his or her own website in such a way that users are unable to recognize that the information did not originate from the operator of the website. The injured party may above all require the person responsible to eliminate and cease the infringement and pay the injured party damages for the prejudice suffered as a result of the culpable infringement of copyright or exclusive rights of use (section 97 of the German Copyright Act, UrhG).

Risks involved in operating repositories

For the repository operator, the question thus arises as to whether a document to which he or she provides public access via the Internet on behalf of an author is third-party content or own content. For, from a dispassionate perspective, a repository is just a website with specific, selected content. Because of the privileging [of service providers] under section 10 of the German Telemedia Act (TMG), if the document were third-party content, the operator would not be responsible for the infringement of the rights of third parties.

However, the problematic thing about this is that, before a document is included in a repository it must undergo a process of editorial selection and, if necessary, preparation. As a rule, therefore, it must be assumed that the document has at least been appropriated. Consequently, there is a risk that, in the case of an infringement of copyright or of the exclusive rights of use of a third party – for example a publisher – the repository operator will be required to remove the document from the repository, desist from (re-)including the document in the repository, and pay damages.

Due to the liability of the repository operator, the elimination and cessation of the infringement is unavoidable. However, by appropriately drafting the agreements with the authors who submit their documents for inclusion, the repository operator can reduce the risk of financial loss arising from the obligation to pay damages. To this end, Prof. Dr. Andreas Wiebe LL.M. (Virginia) suggested in an expert opinion that the following clause be included in such agreements:

The author undertakes to indemnify the repository operator from claims by third parties arising from the fact that, as a result of culpably false information provided by the author regarding the absence of the rights of third parties, or as a result of other circumstances for which the author is responsible, the publication of the work in the repository leads to an infringement of copyright or exclusive rights of use. This shall not apply if the infringement is due to intentional or grossly negligent behaviour on the part of the repository operator and if the author is not culpable of acting with wilful intent or gross negligence in the same way. In the latter case, the apportionment of damages shall take account, in particular, of the respective shares of fault. (Translated from the German.)

Wiebe, in: R. Kuhlen and M. Seadle (Eds.) Zur urheberrechtlichen Gestaltung von Repositorien. Bonn, 2011 (last retrieved on 19.02.2015).

Risks involved in providing access to documents on a personal website

For persons who wish to make their own documents publicly accessible via their personal websites, the greatest risk is that, by so doing, they may infringe agreements with third parties, for example a publisher. If the author in exercise of his or her power of disposition has granted exclusive rights of use in a work to a third party, the holder of the exclusive rights of use assumes the exclusive position of the author in relation to the exploitation of the work and can exclude anyone, including the author him- or herself, from using the work in a particular way. In other words, he or she may forbid others to use the work.

In cases where operators of private websites adopt content created by third parties, their liability risks are the same as those of repository operators.