The Limitation Period for Claims for Damages Based on License Analogy in Copyright Law
The assertion of claims for damages due to the infringement of copyright positions, especially in the context of license analogy, holds significant importance in the field of intellectual property protection. The precise determination of the relevant commencement and duration of the limitation period plays a central role not only for rights holders but also for alleged infringers. In this context, the current case law, in particular the decision of the Federal Court of Justice (BGH), is of considerable relevance and provides greater legal certainty regarding practical questions of liability and legal enforcement.
Overview of Damages Based on License Analogy
The legal basis for claims for damages in the event of copyright infringement is primarily found in Section 97 of the Copyright Act (UrhG). The so-called license analogy stands out as a common method of calculating damages: it determines what remuneration would typically have had to be paid for lawful use. This hypothetical approach does not serve as a sanction, but rather as compensation for the rights holder’s financial loss. License analogy is particularly applied when there are no actual license agreements in place, but licensing would have been likely under the specific circumstances of the case.
Commencement of the Limitation Period: Key Point and Requirements
The limitation period for claims for damages in copyright law follows the general civil law rules on limitation, unless a specific copyright regulation applies. According to Section 102 UrhG in conjunction with Section 195 BGB, the regular limitation period is three years. However, the commencement of the limitation period is of central importance, as the period does not automatically begin with the infringement. Instead, the decisive factor in accordance with Section 199 (1) BGB is when the claimant becomes aware of the infringement and the person of the infringer or would have obtained this knowledge without gross negligence.
Knowledge and Grossly Negligent Lack of Knowledge
The requirements for knowledge within the meaning of Section 199 (1) BGB have been specified in case law. The period only starts when the rights holder has definite knowledge of the relevant facts giving rise to the claim – in particular, the identity of the infringer and the actual extent of the infringing act. In addition, grossly negligent lack of knowledge is sufficient to start the limitation period if the rights holder could have readily established the prerequisites through simple investigations. In practice, it must be considered that information asymmetries and the complexity of the burden of proof can be of significant importance.
Current Case Law and Its Implications
Federal Court of Justice Decision on Limitation Periods for License Analogy
With its judgment of July 26, 2018 (Case No.: I ZR 64/17), the Federal Court of Justice clarified that the same limitation rules apply to claims for damages based on license analogy as to other tort-based claims in copyright law. In particular, the BGH confirmed that the limitation period does not begin with the unauthorized use itself, but with the rights holder’s positive knowledge of the infringement and the identity of the infringer.
Specification of the Commencement of the Limitation Period
In light of the BGH case law, the earliest possible start of the limitation period is when the rights holder has sufficiently certain knowledge of the identity of the infringer and the essential circumstances of the infringement. Uncertainties or mere presumed indications are not sufficient. This is particularly significant in complex factual situations, for example when there is uncertainty about individuals between the rights holder and infringer in the context of extensive licensing chains or collective works.
Special Features of Damages Calculated by License Analogy
Contrary to certain positions previously represented in the literature, damages based on license analogy are not treated as a permanent compensation for use with an unlimited claim. The limitation follows strict principles, so that claims overlapping into perpetuity are excluded. This also serves legal certainty for all parties involved in a business context.
Role of the Burden of Presentation and Proof
In the context of limitation, the claimant bears the burden of presentation and proof regarding the absence of knowledge or grossly negligent lack of knowledge. This means that the rights holder must, where appropriate, set out in detail why they only acquired knowledge of the infringement at a specific time. Conversely, the infringer is obligated to plausibly put forward any earlier notification or indications if they wish to rely on an earlier start of the limitation period.
Special challenges can arise in situations where the rights holder represents a large number of rights or has engaged third parties to enforce those rights. Here, the standard for determining knowledge must especially assess who attained the relevant level of knowledge – the rights holder themselves, or, for instance, a collecting society or authorized agent.
Interaction with Other Areas of Law and European Regulations
Copyright limitation periods are embedded in an overarching system of harmonized European requirements aimed at ensuring minimum protection. At the same time, German damages law is closely linked with tort law and aspects of tax or company law. In particular, in cross-border situations, it must be assessed to what extent limitation provisions of other countries may apply (Private International Law).
If another country applies different standards or periods for knowledge (including absolute limitation periods), international jurisdictional questions and the applicable law can have a significant impact on revenue generation and risk prevention for corporate groups and investors.
Special Features Concerning the Suspension and Restart of the Limitation Period
In practice, a multitude of events that suspend or interrupt the limitation period (§§ 203 ff. BGB) must be observed, such as negotiations, legal actions, or the service of a claim. Special statutory provisions may also, in certain circumstances, affect the limitation period, for instance regarding claims for disclosure (§ 102 sentence 2 UrhG).
Summary and Outlook
Both rights holders and users of protected works are confronted with complex questions regarding limitation periods, which have considerable influence on the economic assertion of claims and liability risk. The BGH’s highest-level clarification leads to increased legal certainty, but requires a nuanced assessment of individual knowledge and evidential circumstances in each case.
For a reliable assessment of corresponding risks and opportunities, as well as structured management of claims domestically and internationally, it is advisable to involve legal counsel with comprehensive experience in copyright and commercial law. The Rechtsanwalt at MTR Legal are available to support and assess the aspects mentioned and look forward to competently assisting you with your matter.
