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Cease-and-desist letters from Sky regarding alleged public communication to the public – legal framework
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Sky Deutschland frequently considers its rights—particularly in relation to the broadcasting of television programs and sports transmissions—to be infringed and therefore regularly has cease-and-desist letters sent out. In these cases, recipients are usually accused of copyright infringements in connection with an allegedly unauthorized public showing of Sky programs, for example in hospitality businesses. The company essentially relies on Section 15(3) of the German Copyright Act (Urheberrechtsgesetz, UrhG), pursuant to which a public communication generally requires the consent of the rights holder.
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What does “public communication” mean in the copyright context?
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A communication is considered public within the meaning of copyright law when the transmission is not limited to a private circle but is made accessible to a larger group of persons that is constantly changing. The precise legal interpretation depends on the specific circumstances of the individual case and on the case law of the highest courts. Restaurants, hotels, bars, and sports facilities in particular are therefore confronted, when showing Sky content, with the question of whether this constitutes a public communication for which separate licensing may be required.
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Typical course of cease-and-desist letters in connection with Sky
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Content and objectives of a cease-and-desist letter
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A cease-and-desist letter usually consists of a request to submit a cease-and-desist declaration subject to a contractual penalty, combined with the assertion of reimbursement for expenses incurred and, where applicable, damages. The basis for the demands is usually the allegation that the recipient—such as the operator of a hospitality business—broadcast Sky programs without a valid commercial license. In this context, even showing a sporting event once can give rise to such action.
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Investigation and preservation of evidence
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Potential infringements are generally identified by private investigators or authorized representatives who document the respective use of the programs. Corresponding cease-and-desist letters are then derived from this. In practice, photos, written notes, or witness statements are regularly presented in order to substantiate an act of infringement. With regard to all allegations raised, the presumption of innocence applies as a general legal principle as long as there is no final and binding determination of a copyright infringement (cf. Section 261 of the German Code of Criminal Procedure (StPO)).
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Relevant legal aspects for businesses and private individuals
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Distinction between private and public use
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Determining whether, in an individual case, a public communication within the meaning of the UrhG exists is decisive for the permissibility of program use. If a transmission takes place purely in a private setting, copyright-law consent requirements generally do not apply. However, if the communication extends to guests in publicly accessible premises, a license may be required.
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Legal consequences and possible claims
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If a copyright infringement is legally effectively proven against the recipient of the cease-and-desist letter, claims for injunctive relief, information, and damages may be asserted on this basis. In addition, claims for reimbursement of the necessary expenses frequently arise, in particular with regard to any attorneys’ fees. The respective amount of the claim depends on the circumstances of the individual case and is regularly measured by the value of the alleged use.
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Notes on further steps with particular consideration of ongoing proceedings
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If the issuance of a cease-and-desist letter is based on a set of facts that has not yet been conclusively reviewed by a court, it should be noted that a final and binding determination can only be made after court proceedings and that until then the presumption of innocence continues to apply. It is therefore advisable to carefully examine the specific situation and to document all circumstances—particularly regarding the manner in which the programs were used. Source: Juraforum.
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Contact for individual clarifications and further advice
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The legal issues associated with allegations of unlawful public communication are often complex and case-specific. Businesses in the hospitality and events sector in particular can minimize risks through preventive measures and an individually tailored strategy. For further information or a personal assessment of your specific matter, MTR Legal will be happy to assist you. Find out more here about our services for legal advice in IP law.
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