Information on liability for legal infringements on the portal

This blog arti­cle explains how you can avoid legal infringe­ments on the por­tal and react cor­rectly to warn­ings.

Spe­cial care must be taken when incor­po­rat­ing third-party mate­ri­als: Care­less­ness can lead to infringe­ments of the prop­erty rights of oth­ers (copy­right, per­sonal rights, trade­mark rights, etc.). An infringe­ment can have a num­ber of unin­tended con­se­quences. These include costly warn­ings, actions for injunc­tive relief or removal and pos­si­bly com­pen­sa­tion for dam­ages. In this overview, you will learn how to avoid an infringe­ment of rights and how to react to a warn­ing let­ter and to infringe­ments of your prop­erty rights by oth­ers

How to avoid an infringement

• If pos­si­ble, use your own mate­r­ial or mate­r­ial for which all rights (in par­tic­u­lar copy­rights, trade­mark rights, per­sonal rights) have been clar­i­fied.
• Is the third-party mate­r­ial licensed? Pay atten­tion to the rights of use granted by the license. Cre­ative Com­mons (CC) licensed con­tent may gen­er­ally be used. How­ever, depend­ing on the type of Cre­ative Com­mons license, there may be restric­tions (e.g. no com­mer­cial use). Be sure to read the license text. For CC licenses, you can find the license text here:
  
  

Screen­shot from https://creativecommons.org/licenses/by/4.0/deed.de

• Is there no license notice? Please note that third-party works are also pro­tected by copy­right with­out a copy­right notice from their cre­ation and gen­er­ally 70 years after the death of the author! If this period has already expired, you may incor­po­rate a third-party work into open edu­ca­tional mate­ri­als.
  If the work is not yet in the pub­lic domain, you may quote it in your mate­ri­als, § 51 UrhG. Make sure that the pur­pose of the quo­ta­tion (con­tent-related dis­cus­sion of the third-party work) is ful­filled, that you only quote as much as the pur­pose of the quo­ta­tion requires and that the quo­ta­tion is excluded from the license (Sec­tion 51 UrhG does not enti­tle you to co-license the third-party work!)
• If in doubt, obtain the nec­es­sary rights of use by means of an agree­ment (in writ­ing for rea­sons of proof). Our sam­ple tem­plates for grant­ing rights can help you with this.
• Are you allowed to use the work of oth­ers? Please remem­ber that third-party mate­r­ial must gen­er­ally be pro­vided with a license notice (excep­tions: pub­lic domain works, CC Zero, etc.). Place the license notice and copy­right infor­ma­tion as close as pos­si­ble to the work so that you com­ply with your oblig­a­tion to acknowl­edge author­ship, 13 S.1 UrhG .
• Make sure that the author(s) and not the person(s) who posted the work online is/are named. Adhere to the spec­i­fi­ca­tions of the licen­sor, cf. 13 UrhG.
• Fol­low the TULLU rule for cor­rect license infor­ma­tion when using Cre­ative Com­mons licensed mate­ri­als.
• If peo­ple (or their voice — right to one’s own word!) are rec­og­niz­able in photo, video or audio record­ings (e.g. inter­views), ask them for per­mis­sion before pub­lish­ing the record­ings. Oth­er­wise there may be a con­flict with gen­eral per­sonal rights and data pro­tec­tion. Obtain writ­ten con­sent from the per­sons depicted. Describe as specif­i­cally as pos­si­ble what the pho­tos are being taken and used for. Our sam­ple tem­plate for con­sent to photo and video record­ings can pro­vide ini­tial guid­ance.
• Quote cor­rectly: if in doubt, do not quote entire works; remem­ber that a quote is only per­mit­ted “if the scope of use is jus­ti­fied by the spe­cific pur­pose”, Sec­tion 51 UrhG. In this arti­cle you can read how to quote cor­rectly:
• Please note that you are gen­er­ally only per­mit­ted to use third-party works within the scope of Sec­tion 60a UrhG (teach­ing and instruc­tion) in lim­ited quan­ti­ties (up to 15%) and in restricted pub­lic spheres (shar­ing with any­one on the Inter­net, for exam­ple, is not cov­ered by Sec­tion 60a UrhG). Do not for­get to cite the source (§ 63 UrhG)!

Recommended procedure in the event of a warning letter

If you have already received a warn­ing let­ter, you should pro­ceed with cau­tion in order to avoid (pos­si­bly fur­ther) costs and legal pro­ceed­ings. A warn­ing let­ter is an out-of-court request (usu­ally a let­ter from a lawyer) to refrain from cer­tain behav­ior. The warn­ing let­ter is often accom­pa­nied by a so-called dec­la­ra­tion to cease and desist with a penalty clause. By sign­ing the dec­la­ra­tion, the per­son being warned under­takes to refrain from the alleged infringe­ment (e.g. use of a logo on a web­site) in future and to pay a con­trac­tual penalty in the event of an infringe­ment. The dec­la­ra­tion to cease and desist is intended to ensure that repeated or fur­ther infringe­ments (risk of rep­e­ti­tion) do not occur.

How should I react to a warning letter?

• Take the warn­ing seri­ously. Even a warn­ing let­ter by e‑mail that has landed in the spam folder is not fake per se. There is no pre­scribed form for a warn­ing let­ter. The warn­ing let­ter can be sent by let­ter, fax, e‑mail or even ver­bally. A warn­ing let­ter is a legally sig­nif­i­cant dec­la­ra­tion. Legally sig­nif­i­cant dec­la­ra­tions become effec­tive upon receipt by the recip­i­ent. In the case of an e‑mail, a dec­la­ra­tion is received as soon as it reaches the recip­i­en­t’s inbox (this also includes the spam folder!). Time lim­its are also cal­cu­lated from the time a dec­la­ra­tion is received. If you do not respond to a warn­ing let­ter and allow the dead­lines spec­i­fied therein to elapse, you risk legal pro­ceed­ings and addi­tional costs.
• Read the warn­ing let­ter care­fully. Not every warn­ing let­ter is gen­uine. It can hap­pen that you receive a so-called fake warn­ing let­ter by email. It may look like a let­ter from a well-known law firm. You may be able to tell that it is not a gen­uine warn­ing let­ter by the dif­fer­ent bank details and very high claims for dam­ages. If you receive such an e‑mail, call the law firm named in the let­ter and clar­ify the facts. Dial the num­ber from the law fir­m’s web­site and not the one men­tioned in the warn­ing let­ter.
• Han­delt es sich um eine echte Abmah­nung, muss diese nicht immer wirk­sam sein.  Wird z.B. eine Urhe­ber­rechtsver­let­zung abgemahnt, muss die Abmah­nung nach § 97a Abs. 1, 2 UrhG fol­gende Angaben enthal­ten:
  • Name/company of the injured per­son,
  • exact descrip­tion of the infringe­ment,
  • Break­down of the pay­ment claims asserted (com­pen­sa­tion for dam­ages, reim­burse­ment of expenses)
  • The legal scope of the oblig­a­tion to cease and desist (in the case of a cease and desist dec­la­ra­tion with penalty clause).

If the warn­ing does not con­tain one of these details, it is inef­fec­tive. An inef­fec­tive warn­ing let­ter can­not trig­ger any cost con­se­quences.

• If the warn­ing is gen­uine and effec­tive, it must be checked whether it is jus­ti­fied .
  

If the warn­ing is unfounded (the accu­sa­tion is not true: e.g. the per­son issu­ing the warn­ing is not the author or rights holder, the date, time, IP address, type of infringe­ment, etc. do not match), you should reply to the accu­sa­tion. Pos­si­ble means of defense are the counter warn­ing and the neg­a­tive declara­tory action (action for a declara­tory judg­ment that an infringe­ment does not exist).

If it is doubt­ful whether the per­son issu­ing the warn­ing has copy­rights or rights of use to the work in ques­tion, you can dis­pute their legal sta­tus. If legal action is then taken, the allegedly infringed per­son must pro­vide sub­stan­ti­ated proof of their legal sta­tus. If the proof is suc­cess­ful, the per­son receiv­ing the warn­ing bears the cost risk.

If you have already instructed a lawyer to exam­ine the warn­ing let­ter, you are enti­tled to claim reim­burse­ment of the nec­es­sary defense costs from the per­son issu­ing the warn­ing let­ter under Sec­tion 97a (4) UrhG.

If the warn­ing is jus­ti­fied (the per­son issu­ing the warn­ing is the author or rights holder, the accu­sa­tion is cor­rect: e.g. date, time, IP address, type of infringe­ment, etc. match), you should imme­di­ately cease or remove the infringe­ment (e.g. remove pho­tos from the web­site). How­ever, it is not advis­able to sign the cease-and-desist dec­la­ra­tion with penalty clause that accom­pa­nies the warn­ing let­ter too hastily. Remem­ber: this doc­u­ment is a con­tract that is valid for life. The pre-for­mu­lated cease-and-desist dec­la­ra­tion only takes the inter­ests of the infringed per­son into account. For this rea­son, it is often too far-reach­ing (e.g. claims for­mu­lated too broadly/too gen­er­ally, con­trac­tual penalty set too high). The cease-and-desist dec­la­ra­tion can often be mod­i­fied in your favor.

On the other hand, you should not take too long to review the cease-and-desist dec­la­ra­tion. A (usu­ally very short) dead­line is set for sub­mit­ting the cease-and-desist dec­la­ra­tion. If this dead­line expires, you risk a tem­po­rary injunc­tion or an action for injunc­tive relief. It is there­fore advis­able to con­sult a lawyer at short notice to review and, if nec­es­sary, amend the dec­la­ra­tion.

The same applies to any enclosed dec­la­ra­tion on an out-of-court set­tle­ment. This pre-for­mu­lated dec­la­ra­tion is often not appro­pri­ate either and should at best be adapted in your favor by a lawyer.

Fur­ther details on what to do in the event of a warn­ing let­ter can be found in this e‑book, for exam­ple:

https://www.urheberrecht.de/urheberrechtsverletzung-was-tun/#ebookurheberrechtsverletzung

What you can do if your rights are violated on the portal

In the por­tal(www.twillo.de) you have the option of report­ing infringe­ments via our con­tact form or by email to our sup­port team: info@twillo.de. In this case, we will check the sus­pi­cion and, if nec­es­sary, delete the infring­ing con­tent. In the event of repeated infringe­ments by the same per­son, this per­son may be excluded from using the por­tal. Please under­stand that we do not pro­vide legal assis­tance.