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).