For those who are not familiar with this mysterious term: what is an Abmahnung and how does it work?
NT: Let me start with the terminology. The term Abmahnung derives from the German language, due to the fact that the regulation itself also applies mostly to German jurisdiction. The international term is Cease and Desist Letter.
Abmahnung is a regulation which helps to resolve cases when the law is violated without going to court. It is a formal warning letter sent to prevent or make another person stop certain types of behaviour. If a law violation that may be covered by Abmahnung is observed the party can hire an attorney, send the letter and get the reimbursement for the damages and the attorney’s fees.
Article 97a of the German Copyright Act gives a wider explanation: ’The injured party shall notify the infringer before instituting proceedings in court to desist from infringement and shall give him the opportunity to settle the dispute by entering into an obligation to desist from infringement accompanied by an equitable contractual penalty.’
What are the reasons for receiving an Abmahnung?
NT: Abmahnung applies to a couple of different fields. It is a part of the employment law and used when a company’s law is violated. You may find it in competition law, also in the retail industry – where it is usually sent to businesses accused of unfair practices. Last but not least, it is also one of the most powerful tools to protect copyrights.
Unfortunately, the privilege of sending an Abmahnung is often overused. Companies would send it to one another, pointing out minor mistakes and unintended violations. Reasons for sending the official letter vary but are often quite trifling, e.g. a missing telephone number in the imprint. When it comes to the employment law, depending on the company’s policy, receiving a couple of Abmahnungs may lead to losing the job. No wonder more and more people become afraid of receiving an Abmahnung.
What is the typical misunderstanding of the Abmahnung’s function? Why is it perceived mostly negatively in Germany?
NT: One of the reasons why Abmahnung is perceived negatively is because some lawyers started to take advantage of it in a way that was not intended by the law. Trawling the internet while obsessively looking for minor violations even got its special name and started to function as a separate phenomenon called: Abmahnwelle (-wave). Lawyers started to use Abmahnung as a tool in their personal game while a lot of companies find it useful to beat the competition.
It is just the terminology and its perception which got an inglorious label. The negative understanding of the Abmahnung is not surprising but has to be changed to make sure that this crucial regulation can be used in good faith. Being abused, Abmahnung is losing its credibility while it remains among the most crucial tools for photographers.
We are getting closer to finding the answer to the question of whether Abmahnung should be perceived as a friendly tool or a dangerous warning…
NT: From the opponent’s point of view it will be always perceived as something unpleasant and unfriendly. After all, when a person gets an Abmahnung, they need to pay the lawyer right away. Yet they view themselves as victims, even though it was them who broke the law.
In many cases, the opponent would raise the question: “Why did you not send the warning personally?”, followed by a reassurance “I would have paid you the money back”. But they never do. And my statement is based on personal experience. At the very beginning of my professional career as a landscape photographer, I used to fight for my copyrights just on my own, sending personal messages and polite warnings. I got lucky if out of ten opponents one got back to me, usually offering to pay half of the requested amount of money.
Abmahnung should be perceived more like a friendly tool since it is the best way to avoid long, costly court proceedings. I see it as a fair compromise – it saves time and money for both sides.
Give us an example of a situation when an Abmahnung brought a smooth ending to a serious case?
NT: Abmahnung is not a reason to get offended. It is more of a heads up. I had quite an interesting case with a bunch of smart and creative people working on and organizing the local TED Conference. They used my images in some of their materials, violating the copyrights. As soon as they realized their mistake, they published big, sincere apologies on their website, stating that they felt truly ashamed for using my pictures illegally. Sometimes paying for the lawyer can have some educational value and can be treated as a lesson. I have friendly contact with that TED Conference ever since.
What is the biggest advantage of the Abmahnung?
NT: For photographers, there is no other tool like this one. Abmahnung gives them the opportunity to fight for their copyrights and receive help instead of taking care of every single step on their own.
Due to some lawyers abusing the Abmahnung, rumour has it that there are some crucial changes coming soon.
NT: Currently, the choice of the court where the legal proceeding may take place is under discussion. Right now the victim of an infringement is the one who has the right to pick the court’s location, regardless of where the photo was published. With a publication on the Internet, that’s basically everywhere. After the amendment it will always be the court where the opponent is based.
As a photographer I am actively tracking my copyrights and use Abmahnungs regularly. I am worried that if the law changes I will not be able to do both: keep on taking pictures while keeping an eye on my pictures. How am I supposed to constantly travel around Germany – from one court to another – just to get back the money that I deserve?
I have an impression that for some unjustified reason the roles switched: right now a person who receives the Abmahnung is perceived as a victim while it should be the other way around. I am also an active member of a couple of photography associations but nobody is raising their voices and taking any stands to guarantee themselves their basic rights. I feel like it is high time to speak up.
If it was not for the Abmahnung, how most of the law violations would be handled? Can you predict the future of this important yet still highly controversial tool?
NT: Currently I cannot see any alternative. If it was not for the Abmahnung, photographers would need to keep track of their copyrights and then take all the actions to get their money back on their own. Removing such a tool would be nonsense, but I also don’t think anyone is really considering this.
Personally, I find the future of the Abmahnung difficult to predict. We need to wait and see what the next months will bring. There have been some recent changes which limited the legal cost that can be charged if the opponent is a private person. Businessmen and companies still have more responsibility. Such restrictions should help avoid abuse.