The Higher Regional Court of Celle (OLG Celle)
recently had to decide a curious question: what is the value of a copyright
injunction? It’s tricky enough to calculate damages in copyright cases – the
actual damage more often than not is difficult to prove, and models such as the
fictitious licence (‘Lizenzanalogie’) or the amount by which the infringer is
unlawfully enriched due to the infringement (‘ungerechtfertigte Bereicherung’)
all have their weak points. But how do you determine the value of an
injunction? And why would anyone even want to know?
The answer to the second question is straightforward
enough. In Germany, the amount in dispute (‘Streitwert’) determines whether a
claim will be heard in a District Court (Amtsgericht) or in a Regional Court
(Landgericht). The Amtsgericht deals with claims where the amount in dispute is
5,000 EUR or less (they also deal with specific areas of law regardless of the
amount in dispute, but this does not affect copyright). If the amount in dispute
is larger than 5,000 EUR, only a District Court is competent to hear the case.
The answer to the first question is of course the
lawyer’s all-time favourite ‘it depends’. In the case at hand, the claimant had
applied for an injunction ordering the defendant to cease and desist from
communicating to the public football broadcasts in his pub. The court decided
that the value of the injunction equalled the amount of the television
broadcaster’s estimated loss of earnings during a period of three years. Why
three years? I’m afraid the court failed to explain. Maybe three years was the
typical duration of a licence agreement in the relevant market, but that’s just
a wild guess… However, the court did elaborate that since the case only
concerned the application for a preliminary injunction rather than a permanent
one, the amount in dispute must be reduced by one third (i.e. the loss of
earnings of two years).
In addition, the court pointed out that aspects of
general prevention of copyright infringement must not be taken into
consideration when determining the amount in dispute. It held that deciding on
the amount in dispute is not the place to try and deter potential copycat
infringers or penalise the defendant. In doing so, it openly contradicted
previous judgments by a number of other Regional Courts, namely OLG Koblenz, KG
Berlin, OLG Hamburg and OLG Thüringen. On the other hand, OLG Frankfurt, OLG
Braunschweig and Schleswig-Holsteinisches OLG support the same view as OLG
Celle.
So basically it’s a tie and something the
Bundesgerichtshof (BGH) should be keen to jump on in the name of the unity of
the legal system, but I think it’s not very likely that someone will take a
case all the way to the BGH just because of a disagreement over the amount in
dispute. Dear BGH, can we have an obiter dictum sometime soon, please?
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