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DMCA Takedown Notice in Germany: Legal Advice

Although the Digital Millennium Copyright Act (DMCA) is a United States copyright act, the international nature of the internet means that it can impact people in Germany. For example, those who use cloud storage services from the USA can be affected by a DMCA takedown notice, and DMCA takedown notices can work hand-in-hand with similar German provisions under § 97a Urhg (German Copyright Act). A DMCA takedown order can have serious consequences for both businesses and private individuals who have dealings in the USA, and should not be ignored.

At Schlun & Elseven Rechtsanwälte, our intellectual property lawyers advise both private and corporate clients on all matters of copyright, intellectual property and trademark law in Germany. We have advised both copyright owners and those who have been accused of copyright infringement on complex cases. If you have received a DMCA takedown notice or are considering issuing one, it is advisable to contact reliable intellectual property lawyers to ensure that it is the correct step.

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How to Respond to Breaches of Copyright in Germany

German copyright law under § 2 German Copyright Act allows for the protection of certain material such as the following:

(1) Protected works in the literary, scientific and artistic domain include, in particular:

  1. Literary works, such as written works, speeches and computer programs;
  2. Musical works;
  3. Pantomimic works, including works of dance;
  4. Artistic works, including works of architecture and applied art and drafts of such works;
  5. Photographic works, including works produced by processes similar to photography;
  6. Cinematographic works, including works produced by processes similar to cinematography;
  7. Illustrations of a scientific or technical nature, such as drawings, plans, maps, sketches, tables and three-dimensional representations.

If you find yourself in such a situation where you need legal advice on German copyright law and the remedies available for such breaches, please contact our German copyright lawyers.

However, once your material is online, breaches of copyright can become a global business. Locating the copyright infringer can be difficult, and professional support may be required to find them. Although the DMCA is a US legal provision, it can be of use to German copyright holders as the breach of copyright may have been from the USA. In reverse, the US copyright holder’s material may have been infringed by someone in Germany, and they have issued a DMCA takedown notice in response. The DMCA puts into practice two World Intellectual Property Organization (WIPO) treaties to which both Germany and the USA are members. The DMCA notice can be taken as a warning by the copyright holder, and if the copyright infringer does not respond accordingly there can be further legal action in the future.


Issuing a DMCA Takedown Notice

The DMCA allows the copyright owner (or an authorised agent of the copyright owner) to send DMCA notices to remove the offending material. If you are not the copyright owner and have noticed that there has been copyright infringement, you should notify the copyright owner of the matter.

A DMCA takedown notice can be issued for copyright infringement on the following materials:

  • Artwork, photos, images, videos
  • Texts including books, articles and blogs
  • Songs, music and other audio files,
  • Digital software.

When submitting a DMCA takedown notice, the following information must be included to allow for the complaint to be properly processed:

  • a physical or electronic signature from you,
  • the location and identification of the alleged infringing material (URLs, for example),
  • your contact information,
  • a good faith statement that the copyright owner does not authorize the use of the material,
  • a signed statement confirming that everything provided is correct (but remember that you are liable under penalty of perjury).

As shown below, the unfair issuing of such a notice can lead to legal conflict in the future, and other remedies may be more suitable to the current situation. It is always worth consulting with professional legal advice before taking such a decision. Gather the evidence of the alleged breach of copyright, record the breach’s facts, and then consult with an intellectual property lawyer.


DMCA Takedown Notices: “Fair Use” and German Law

DMCA takedown notices can arise for many reasons. The DMCA, and other copyright law, such as the German Copyright Act, are in place to protect the intellectual property of those who create the material and, thereby, prevent copyright infringement. However, not all usage of copyrighted material breaches copyright law, as “fair use” applies under US law in cases where such material is used for:

  • Commentary
  • Criticism
  • News reporting
  • Research
  • Scholarship
  • Teaching

However, there is no set general “fair use” rule under German law, and instead, German law provides specific exceptions under certain situations. Users of copyrighted material may claim legal protections under German laws relating to freedom of speech, freedom of the press, freedom of opinion and others. However, it is vital to consult with an experienced German lawyer to assess your case and determine whether such protections have a role to play in such matters.

Another option available under German law (§ 31 German Copyright Act) is for the copyright holder to provide third parties with a “right of use” for their work. Such rights of use are designed in a licensed contract where the conditions for use (such as whether it is an exclusive or non-exclusive right and whether the third party has full access or limited access) are provided. § 34 German Copyright Act allows for the creator of the copyrighted material to transfer ownership to another person.

In determining whether the third party has exceeded the right of use, it is advisable to consult with a legal professional. Breaches of the licensing contract can lead to legal action and should be considered to prevent further breaches in the future. Additionally, the design of future licensing contracts may need to be reconsidered and redrafted to reflect your intentions behind such agreements better. Our German copyright lawyers will support you in such matters.


Unfair DMCA Takedown Notices: How to Respond

Receiving a DMCA takedown notice may not automatically mean that you are in the wrong, and it is worth receiving professional legal advice on such matters. Consider the matter calmly and determine whether your action has really been in breach of copyright law. Remember, the issuing of the DMCA takedown notice may have been taken due to a misunderstanding, and if you believe you have not been in breach of copyright it may be in your interests to contact the issuer and seek to rectify the matter. If you have been unknowingly in breach of copyright law, it may be worth just locating the infringing material and removing it as soon as possible.

However, it is not uncommon for DMCA takedown notices to be used by groups to prevent online criticism, interfere with business activity, and other unfair purposes. Under copyright law, issuing such enforcement measures, whether by a DMCA takedown notice or by the copyright law mechanisms under German law, is a serious step for the other side to take. It is one which they need to reinforce. There must be merit behind their claim of copyright infringement.

At Schlun & Elseven Rechtsanwälte, our legal experts will analyse the DMCA takedown notice and determine whether there is merit to the claim. From there, we will advise you on how best to resolve the matter. Should there not be any merit in the notice, our lawyers will draw up requests to remove it. If the other side refuses to remove the notice, we will work with you in launching a counter-notice. A successful counter-notice will allow you to reintroduce the material which has been unfairly removed from your website.

Should the other side decide to contest the counter-notice, our legal advisors will support you in the court case, which is likely to follow.


Our Services as German Intellectual Property Lawyers

Our legal team advises both copyright holders and those who have been issued DMCA takedown notices. For copyright holders, our legal team will assess the alleged breach and outline whether the case in question requires the issuance of a DMCA takedown notice or another form of copyright infringement order. If such an order is justified, our lawyers offer anti-piracy strategies for our corporate clients as well as for individuals. The strategies we implement are customised and tailored to your needs. Our lawyers will design the notices and copyright orders and issue them from there. From there, we will monitor the injuring party and follow up to ensure that they have complied with the takedown order.

For those who have been issued a DMCA takedown notice, it is often worth working with an intellectual property lawyer to ensure that the order has been issued properly. All too often, those who have been issued such a notice do not take the step to challenge it, even where a challenge may be successful. Allow our team of legal experts to analyse your case and determine whether the DMCA Notice should be challenged. Should the case demand it, our team will advise and support you on the issuance of a DMCA Counter-Notice.

As German intellectual property lawyers, our team handle such matters regularly. Our clients know that they can rely on us in a time of crisis. Contact us now for reliable legal support.

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Practice Group: German Intellectual Property Law

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German Intellectual Property Law

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Martin Halfmann, LL.M.

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Please use the contact form to inform us about your concerns concerning German intellectual property law. After receiving your request, we will make a short preliminary assessment based on the information provided and give you a cost estimation. You are then free to decide whether you want to instruct our intellectual property lawyers.