Fri, Jun. 24, 2016

Copyright for Photos of Public Domain Artworks

CK - Washington.   A Wikipedia user uploaded to Wikimedia Commons digital scans of photographs of artworks in the public domain. The owner of the works, a museum which employed a photographer who took the analog photos, sued for breach of co­pyright in the photographs. On May 31, 2016, the Berlin District Court ruled in favor of the museum in the matter Reiss-Engelhorn Museum of the City of Mannheim v. Wikimedia Foundation.

Even if the artwork was in the public domain, the photos constitute copyrightable matter, and the defendant Wikimedia Foundation in San Francisco is enjoined from their display in Germany, to avoid a penalty of 250,000 euros, the court held. The Foundation is reportedly planning an appeal. It published the decision and related information. A German site,, provides updates in German.

Tue, Jan. 19, 2016

Preventive Detention in German Law

JBL - Washington.   The European Court of Human Rights in Strasbourg backed preventive detention under German law in a decision published January 7, 2016 in Bergmann vs. Germany, application no. 23279/14. The justices ruled that national authorities may retrospectively extend the preventive detention of a dangerous offender like Mr. Bergmann.

In 2014, Bergmann alleged that the retrospective extension of his preventive detention beyond the former statutory ten-year maximum term violated his right to liberty under Article 5 of the European Convention of Human Rights and the prohibition on retroactive punishment under Article 7 of the European Convention of Human Rights.

Bergmann had been convicted of several offenses, including sexual assault, attempted rape and attempted murder. He was sentenced to several years of prison. The sentencing court ordered his preventive detention, finding that he suffered from a personality disorder with a propensity to commit serious offenses, which made him dangerous to the public when he was under the influence of alcohol. Bergmann served his sentence, and was placed in preventive detention, for which he was held in a wing of a prison. The courts responsible for the execution of sentences ordered that his preventive detention be extended, which became retroactive applications of the amended detention statute.

In a case of first impression, the justices examined the compatibility of the Convention with a convicted offender's preventive detention for therapeutic treatment purposes under the new legal framework in §66 of the Criminal Code which governs preventive detention in Germany. The Court ruled that the statute does not violate Article 5 or Article 7 of the European Convention of Human Rights. It concluded that Mr. Bergmann's preventive detention is justified under Article 5 as the detention of a person of unsound mind and that the preventive detention does not constitute a penalty under Article 7.

Fri, Jan. 08, 2016

Link Liability in German Law

MH - Washington.   The German Supreme Court for Civil Matters ruled on the liability for external links in a decision published on January 5, 2016. It had announced its ruling in the matter I ZR 74/14 on June 18, 2015.

The parties had raised the issue whether or not using links on one's business website leads to liability for the allegedly unlawful content of the page linked to. A fairly novel issue is the obligation to examine links to external sites.

A physician had linked from his website to a site covering details about acupuncture treatments. The plaintiff, a consumer protection group, considered the content of that page misleading, which results in the question whether the physician would be liable for the violation of the Unfair Competition Statute, UWG.

The Court ruled that the defendant was not responsible for the unlawful information on the third party's site. Its determination requires a case-by-case analysis. Liability depends on whether the content would be considered one's own statement in the sense of an endorsement by the user of the link, as perceived by the public. Determinative factors are, whether the user only wants to provide a source for further information or the linked content is essential to understanding the user's content.

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