Regional Court of Cologne, 22 July 2024, Ref.: 14 O 197/24
The Digital Services Act (DDG) primarily supplements the provisions of the Digital Services Act (DSA). The DSA is an EU regulation aimed at reducing illegal content on the internet and defines numerous obligations for online service providers. It establishes a harmonised legal framework for digital services in the EU, including platforms and search engines. These providers are obliged to implement mechanisms for reporting and removing illegal content.
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The judgement of the Regional Court of Cologne, case no. 14 O 197/24, deals with the question of whether a warning notice is required before filing a lawsuit if a copyright holder has filed an online complaint for copyright infringement and the affected user responds with a "counter notification". The judgement relates to proceedings that were conducted after the Digital Services Act (DSA) came into force, a law that regulates the liability of online platforms for the content of their users and also concerns the procedure for copyright infringements.
The background to the proceedings
In the present case, the plaintiff in the injunction is a company that specialises in the management and exploitation of rights of use to works by Albanian artists. It had concluded a contract with an artist, H. N., for the rights to a video produced by him showing the explosion of a small town in Albania, which was made available on various platforms. However, such a video was published on the platform B. without the consent of the plaintiff, which led to the lawsuit. The legal dispute concerned the question of whether the plaintiff should have sent a formal warning to the defendant before applying for an injunction, or whether a simple complaint to the B. platform would have been sufficient due to the copyright infringement.
The decision of the Cologne Regional Court
The Regional Court of Cologne found that a formal warning is also required in the case of an online complaint procedure. The plaintiff in the injunction had informed the platform B. of the copyright infringement and the video initially had to be removed. However, B. pointed out that the video would be released again if the rights holder did not file a legal complaint. The defendant in the injunction then submitted a "counter notification" in which he defended the video as lawful. However, this counter notification could not replace the need for a formal warning. In the opinion of the court, the counter-notification was merely a reaction to the blocking of the video by B. and not a formal dispute with the allegation of copyright infringement, which was relevant for the decision on costs.
The importance of warning notices in copyright law
In its decision, the court emphasised that a formal warning notice in accordance with Section 97a UrhG is not dispensable, even if an online complaint has been submitted. A warning letter serves not only as a request to cease and desist, but also to give the alleged infringer the opportunity to deal with the matter before legal action is taken. The court clarified that the warning notice is not only a formal legal obligation, but also fulfils a central function in copyright protection in order to avoid legal disputes and enable an out-of-court solution. This is particularly important, as law enforcement in the digital space is especially challenging due to the anonymity and global reach of the platforms.
The decision on costs and its consequences
With regard to the costs of the proceedings, the court ruled that the plaintiff had to bear the costs as it had initiated the proceedings without a prior warning, which according to the court's case law was to its detriment. Despite the immediate acknowledgement of the defendant in the injunction, this was seen as a reaction to the action and not as an indication that the plaintiff in the injunction could have dispensed with a warning from the outset. The decision makes it clear that even in the digital age, the formal requirements for a warning notice continue to exist and cannot be replaced by the use of platforms such as YouTube or B.
Conclusion
In summary, the judgement makes it clear that formal warnings remain necessary in the context of copyright law, even if modern online procedures such as the DSA and the associated complaints procedures exist. The judgement shows that the legal framework for copyright infringements in the digital space not only affects the responsibility of platforms, but also that of rights holders in enforcing their claims.
