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
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
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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On 8 September 2016 (C-160/15), the CJEU ruled that the posting of a hyperlink to copyright-protected works located on another website does not constitute copyright infringement when the link poster does not seek financial gain.
The chapter on the UK summarises the IP court and litigation system in the UK, recent developments in relation to IP law and practice, the forms and availability of IP protection and trends and outlook in the IP sphere.
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