In a ruling by the First Criminal Court, the Federal Court of Justice (BGH) put a definite end to what is known as the "self-importation model" in the import of pirate material.
In the decisive case, a forwarding agent transported material pirated from copyrighted works from Italy to Germany, handed the goods over to the customer and sometimes even saw to the collection of the purchase price. The Italian online retailer and seller had previously advertised the pirate material on the German market and put facilities in place to cater for purchasing by the German consumer. The terms and conditions of sale of the online retailer specified that the customer would have to either collect the goods in Italy in person or self-import them to Germany. At the same time, for example, bank account details, order forms written in German and a forwarding agent were made available to the customer to facilitate performance of this "self-importation".
The BGH sentenced the transporter, with a henceforth final and binding effect, to two years' imprisonment for infringement of copyright.
The judgement followed the referral by the European Court of First Instance (Rs. C-5/11) of 21.06.2012, i n which referral the European Court of First Instance found that the principle of the free movement of goods in no way precluded the criminal liability of "self-importation" on the basis of this "business model".
The BGH took up this principle and made clear that these cases of self-importation by the consumer on the basis of an offer from abroad were illegal and punishable for both the seller and the transporter. The BGH was also unable to establish an excusable mistake on the part of the transporter as to the wrongful nature of his actions, since he had clearly acted in the grey area of what is admissible and must therefore have anticipated criminal liability.
Following the ruling of the European Court of First Instance, the many online shipping companies delivering pirate goods to Germany from abroad are thus all at risk of criminal liability under German copyright law and prohibition subject to civil law, even if they are employing the tactic of buyer importation.
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