Tue, Mar. 09, 2004

Territoriality in Copyright Law

ASG - Washington.   The German Supreme Court rendered an important opinion on the scope of German copyright law in a criminal matter.

The defendant is the managing director of a CD manufacturer that produced and exported audio CDs for a company in Bulgaria. As he knew no copyright holder had authorized the reproduction.

The Frankfurt District Court sentenced the defendant to two years imprisonment, on probation. On March 3, 2004, the German Supreme Court (BGH) dismissed the appeals by both the defendant and the prosecution and confirmed the decision.

It began its analysis by defining the applicable law. Applying the principle of territoriality, only German copyright law could apply to the instant facts, it held. Under the German Copyright Act (Urheberrechtsgesetz) and the WIPO Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, the German copyright law covers copyrights of companies domiciled in the United States and European Union including such entities located in Germany if the media is distributed in Germany.

The Supreme Court qualified the shipping of the CDs to Bulgaria as placing them into commerce in Germany. By doing so, for the first time, the Court transposed the long-standing territoriality principle from trademark law into copyright law.

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