The Higher Regional Court of Frankfurt am Main had to address the question of whether a foreign-based e-book platform is liable for copyright infringements in Germany if the works offered in German are not yet in the public domain under German law.
An American "non-for-profit corporation" operates a website that can also be accessed in Germany. Over 50,000 books are available as e-books, free of charge. Among these are many works that are in the public domain in the United States, but also works by Thomas Mann, Heinrich Mann, and Alfred Döblin – in German. The books are uploaded by third parties who volunteer for the platform operator. The platform operator exclusively checks U.S. copyright law before publishing works.
A publishing house, which publishes works by the German authors mentioned, among others, views the offering of works not yet in the public domain in Germany as an infringement of its copyright and sued the platform operator for injunctive relief.
The Frankfurt am Main Regional Court upheld the publisher's view and granted the claim.
The platform operator appealed against this decision. The appeal was unsuccessful.
The court's decision on the ebook platform's liability
The Higher Regional Court of Frankfurt am Main ruled in favor of the publisher in the second instance with Judgment of April 30, 2019 – Case No. 11 O 27/18 (Press Release) Right.
First, the Frankfurt judges confirmed that the German courts have international jurisdiction, as the content 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, i.e., in this case, the Federal Republic of Germany.
The court affirmed an infringement of the publisher's exclusive rights. Under 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 content made accessible there if they created the content themselves. It is sufficient if they have made the content "their own." This was the case here. Because the defendant operator of the e-book platform referred to the works uploaded by third parties as "our books."
Conclusion
An e-book platform based abroad that provides e-books free of charge is liable for copyright infringements in Germany if the works offered in German are not yet in the public domain under German law and the operator has "adopted" the works uploaded by third parties on the platform.
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