Thursday 29 September 2011

Of Glasshouses, Stones and Copyright Infringement

German media reports on alleged copyright infringement by a senior conservative politician (see for example this article in the Handelsblatt). Siegfried Kauder (CDU) recently proposed that copyright infringers should be disconnected from the Internet for three weeks – without a trial, based only on repeat complaints by copyright owners to the relevant internet service provider. He saw this as a milder alternative to criminal prosecution or costly warning letters (costly for the infringer who must pay the right holder’s attorney’s fees).

While that suggestion is constitutionally problematic and was not really taken seriously by anyone even within his own party, it seems to have prompted someone to investigate whether Kauder himself abides by copyright law at all times. Well, apparently not. It is alleged that at least two photographs on his website, showing castles in his constituency, were put there without a licence. The author is not credited either, which would make for an additional infringement of moral rights.

A quick Google Images search reveals the identity of the apparent authors, but as yet neither of them has given a public statement. The pictures have been taken down from Mr Kauder’s website but can still be accessed via archiving sites.

His political rivals and most of the media are understandably delighted by this (minor) scandal. He who sits in the glasshouse should not throw stones or suggest disabling other people's Internet access and all that. However, some people have pointed out that Mr Kauder will hardly have created the website himself. According to the information provided there, it was indeed designed by someone else, but of course that does not answer the question who selected or provided the photographs.

Assuming the person who designed the website also chose the photos and Mr Kauder was unaware that no licence had been given, he would probably not be deemed a direct infringer. He would be liable as a “Störer”, though. The German law concept of “Störerhaftung” does not translate easily – “disturbance liability” would be the literal translation, but liability for breach of a duty of care is probably more accurate in this context. That means that he should have checked that permission to use the pictures had been granted and that he must now make sure that the photos are not used again on his website, but he will not be liable to pay damages.

Not such a big deal then, perhaps, but I guess the public embarrassment hits him harder than a few hundred or thousand euros in damages would. What do you think: poetic justice, preposterous witch-hunt, or politics as usual?

1 comment:

Francis Davey said...

But anyone who viewed the website would also be infringing copyright.

I look forward to an automatic disconnection from the internet for all losing parties in any copyright case before the PCC or PC. Many record companies could find life rather difficult.