Lecturer: Prof. Dr. Bernd Heinrich (Professor for Criminal Law, Criminal Procedure and Copyright Law at Eberhard Karls University of Tübingen) | Date: 7 December 2019 | Venue: Max Planck Institute for Foreign and International Criminal Law, Freiburg | author-meets-critic session, discussant: Esther Earbin (PhD Candidate, International Max Planck Research School on Retaliation, Mediation and Punishment; PhDnet External Representative; PhDnet General Secretary Max Planck Society).
The penal provisions of the German Copyright Act (§§ 106 ff. UrhG) are classic provisions of supplementary criminal law. Behavior prohibited by the Copyright Act is punishable under these regulations. The Copyright Act is primarily civil law. It mainly regulates civil law claims, in particular injunctive relief and claims for damages. Apart from that, however, it also defines when a copyrighted work exists and what is to be understood by reproduction, distribution or communication of the work to the public. Furthermore, the conditions under which such an action is permissible or prohibited find their regulation.
If there is an – under civil law – prohibited act, the behavior is regularly punishable. In this respect, the criminal provisions of copyright law are “accessory to civil law”. The concept of the copyrighted work and the acts of reproduction, distribution and public communication as well as the cases “permitted by law” are governed by the underlying civil law provisions. Nevertheless, civil law disputes over copyright issues are frequent, but criminal convictions are rare. This is astonishing, since one could assume that any civil sentence for copyright infringement is followed by a corresponding criminal conviction. Why this is not the case will be addressed in this lecture. Firstly, the practice of criminal convictions will be analyzed, and it will be asked why they rarely occur. Secondly, “breakthroughs” of civil law accessoriness will be examined, which can lead to the fact that criminal law and civil law fall apart. In a third part, reference will be made to de lege ferenda considerations.
Short biographical note:
Professor Dr. Bernd Heinrich is currently the Professor for Criminal Law, Criminal Procedure and Copyright Law at Eberhard-Karls-University of Tuebingen. Prior to Tuebingen, he was the Professor for Criminal Law, Criminal Procedure and Copyright Law at the University of Constance and Humboldt-University of Berlin. While at Humbolt, he served as Dean and Vice Dean for the Law Faculty. A current research focus is in the area of media criminal law. In this respect, a major academic research contribution can be found in the practical guide “Media Law” (Editor: Prof. Dr. Wandtke), now published in 2nd edition. Furthermore he is working in the field of corruption law. He is currently the organizer of „Netzwerk Ost-West“, student exchange program between the Law Faculty of Tuebingen-University and the universities from Lviv, Izmir and Szeged. He is currently the co-editor of two journals: Deutsch-Georgische Strafrechtszeitschrift (DGStZ) and Kriminalpolitische Zeitschrift (KriPoz).