As of August 2010
"So what?" many of you are probably asking yourselves. The fact that the internet is full of copyright infringement has not yet sunk in everywhere. In our legal practice, we often encounter the misconception that music, films, images, maps or texts that can be accessed for free somewhere can be used freely. Unfortunately, this is a fallacy.
Copyright is based on the work and thus refers not only to Picasso's artwork, but also to a wide range of forms of expression involving text, images and sound. Almost every piece of music, every film (or film clip), every photo and also a great many texts are protected by copyright. In Germany, there is no need for labeling with the famous ©, no registration – indeed, an author, lyricist or photographer does not even have to be named. Copyright arises from the mere creation of the work.
The author determines what happens to their work, whether and how it is displayed, distributed, copied. They can transfer most rights to other people. If something happens without their consent or the consent of a person whom the author has authorized to exercise the rights, effective means of legal recourse are available. In most cases, omission, information, compensation, destruction, reimbursement of legal fees can be demanded.
Since it is rare for an author to explicitly state that their work can be freely used by anyone, one must always assume that copyrights are involved when using and sharing texts, images, and sounds. Some authors do not make their consent dependent on money, but only on certain conditions. Open source software is often released into the world by the author with the condition that derived developments must also be open source. Although you don't have to pay anything to use most open source software, such conditions must still be observed.
It is extremely important to internalize the distribution of the burden of proof. If you use or pass on a protected work, you have to prove in the event of a dispute that this was done with the consent of the author. If you can't prove this, you'd be better off creating something new yourself.
THE mass phenomenon of copyright infringement on the internet is the sharing of music and films, usually via so-called file-sharing software, such as Bittorent. Everyone should be warned against getting the current charts, that great old and everywhere else sold out album or any kind of movie in this way. Even downloading is prohibited. The authors pursuetheir rights here by romping around in the exchange programs and saving the IP addresses of the users along with information about the work. In the past, criminal proceedings had to be initiated to find out which (DSL) connection owner was assigned this IP address at the time in question. Today, this is done by means of court orders, which usually oblige providers to name the connection owners within one to three days. Unfortunately, the courts usually do not make a big deal of the examination at this point and simply wave through the applications. Such a decision is therefore virtually meaningless, even if it is often enclosed with the subsequent written warnings sent to the subscriber.
In practice, however, it is often not the account holder, but rather their children, who have been sharing files. Unfortunately, even then, courts are very strict. The account holder is responsible as a so-called troublemaker if he has not previously taken sufficient security measures to prevent copyright infringement. For the courts, an internet connection is inherently dangerous – a bit like candles on a Christmas tree. If you haven't already provided a fire extinguisher right next to it when decorating the tree (figuratively: when establishing the connection), you are liable for the damage, even if you weren't there when the candles were lit. Restricted user accounts, port blocking, children signing copyright notices – judges have already required a lot from the subscribers as security measures in corresponding rulings.
The subscriber often not only has to issue a cease-and-desist declaration, but also pay warning costs . The copyright holders are keen to see three- to four-digit sums here, where there might sometimes only be a claim for 100 euros.
Another classic is the use of maps on your own website for directions and the like. The copyright holders of such map material are pursuing their rights even more vigorously than the music and film industry, and they are still very active today. The clever website operator will therefore integrate the maps from 1&1 into his website, which are included in many web hosting packages. Alternatively, Google Maps also allows the integration of an interactive map in the form of a JavaScript in many cases. With both solutions, you must of course accept the terms of use – by the way, a small tip at this point: if you have to accept terms of use, there is always a good chance that you are taking advantage of a legal offer!
Finally, a few words about photos. Photos are also subject to copyright, even if it's just a portrait in front of a featureless wall or just the lasagna on the plate is photographed. It is usually sufficient that the photographer has chosen the angle of the shot, etc. Therefore, it is almost always a copyright infringement if, for example, photos taken by a friend and posted by him on Facebook are simply copied to your own profile on Wer-kennt-wen.
There are large photo databases on the internet that sell the rights to photos. This could apply, for example, to photos that you want to use to decorate your own website. Do not be deceived by a frequently used term: if "royalty-free" photos are offered, this does not mean that the images can be used free of charge for all purposes. In the case of these databases, "royalty-free" only means that a one-time license fee covers an often unlimited number of individual uses. The opposite is images that are subject to a license, where you buy the right to use the image in a print run of 10,000 copies for a specific flyer, for example. These are therefore only different remuneration models. However, a license fee must also be paid for the "royalty-free" images.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.