Liability of an International E-Book Platform for Copyright Infringement

The Higher Regional Court (OLG) Frankfurt a.M. had to address the question of whether a foreign-based e-book platform is liable for copyright infringement in Germany if the works offered in German language are not yet in the public domain under German law.

A US-American "non-for-profit corporation" operates a website that is also accessible in Germany. More than 50,000 books are freely available as e-books. These include many publications of works in the public domain in the USA, but also works by Thomas Mann, Heinrich Mann and Alfred Döblin – in German language. The books are uploaded by third parties working voluntarily for the platform operator. Before publishing works, the platform operator has only US-American copyright law reviewed.

A publisher that publishes, among other things, works of the aforementioned German authors, sees in the offer of works not yet in the public domain in Germany a violation of the copyright rights vested in it and sued the platform operator for cessation.

The Regional Court (LG) Frankfurt a.M. confirmed the publisher's position and granted the claim.

The platform operator appealed against this. The appeal was unsuccessful.

The court's decision on the liability of the e-book platform

The Higher Regional Court (OLG) Frankfurt a.M. upheld the judgment in favour of the publisher in the second instance with Judgment of 30.04.2019 – Az. 11 O 27 /18 (Press Release) right.

First, the Frankfurt judges confirmed that German courts have international jurisdiction, since the contents of the website can also be accessed in Germany. According to the rules of private international law, the question of whether claims for copyright infringement exist is governed by the law of the so-called country of protection, in this case the Federal Republic of Germany.

The court upheld a violation of the publisher's exclusive rights of use. According to German law, the works were not yet in the public domain.

Furthermore, the court ruled that the operator of an internet platform is not only responsible for contents made accessible there if he has created the contents himself. It is sufficient that he has appropriated the contents to himself. This was the case here. For the defendant operator of the e-book platform referred to the works uploaded by third parties as "our books", translated "our books".

Conclusion

A foreign-based e-book platform on which e-books are provided free of charge is liable for copyright infringement in Germany if the works offered in German language are not yet in the public domain under German law and the operator has appropriated to itself the works uploaded by third parties on the platform.