Official liability of the State for copyright infringement by a teacher?

If a teacher at a public school advertises the offerings of the educational institution on the Internet and in doing so commits a violation of a photographer's copyright by unauthorised use of a photograph, the question arises whether the State employing the teacher is liable for the copyright infringement. The Higher Regional Court (OLG) Celle recently had to decide this question.

A secondary school had advertised the school's foreign language programme on its website using a photograph of a photographer. The teacher responsible for the programme had conceived the content of the advertisement, selected the image, and made it available to the public on the school's website. The design of the school's homepage was delegated to the teacher by the school principal.

The rights holder issued a cease-and-desist notice to the State and claimed cessation of use, information, and damages. After the State rejected the photographer's demands and declined official liability, the rights holder sued for unauthorised use and asserted claims for damages against the State as defendant.

The Regional Court (LG) Hannover had upheld the action at first instance. The State filed an appeal against this decision.

Decision of the Court

By Decision dated 09.11.2015 – Az. 13 U 95/15 – the Higher Regional Court (OLG) Celle dismissed the State of Lower Saxony's appeal as manifestly unfounded.

The Higher Regional Court (OLG) Celle thereby clarified that responsibility for copyright infringement generally falls on the State or public body in whose service the official who committed the infringement acted. The teacher had acted in exercise of his public office, so that the State of Lower Saxony was required to be liable for the copyright infringement under its official liability provisions.

Conclusion

If officials violate the copyright of third parties in the course of the public tasks entrusted to them, this results in official liability of the authority that employs the official.