GERMANY Trends and Developments Contributed by: Thomas Nägele, Steffen Henn, Anke Hofmann and Serpil Dilbaz, SZA Schilling, Zutt & Anschütz
The decision of the BGH The BGH affirmed the international jurisdiction of Ger - man courts because the defendant was domiciled in Germany. Applying trade mark case law by anal - ogy, the court held that an infringement of German copyright, based on territoriality, requires a sufficient domestic connection. Mere accessibility of foreign websites in Germany does not establish such a con - nection. Furthermore, the appearance of product photos in a Google image search is not sufficient if the underlying websites are clearly not directed at the German market. Whether a website is targeted at the domestic market must be assessed by considering all relevant circumstances. Relevant factors include the website’s language, its top-level domain, its target audience and whether sales activities are conducted in Germany. In the present case, the country-specific top-level domain and the use of Cyrillic script strongly indicated that there was no domestic connection. Text and data mining On 10 December 2025, the Higher Regional Court of Hamburg ruled on an appeal against a late-2024 judg - ment of the Regional Court of Hamburg. This is the first case before German courts that addresses the question of whether a copyright-protected image may be used to build AI training datasets. The facts of the case The appellant, a professional photographer, sought an injunction against a non-profit association that provides image-text datasets free of charge to sup - port AI research. The respondent had downloaded a protected image from the appellant’s website for the purpose of training generative AI, despite the plaintiff’s express prohibition of web scraping. The Regional Court dismissed the claim. The appellant appealed against this ruling. The relevant provisions of the German Act on Copyright Section 44b – Text and Data Mining (1) “Text and data mining” means the automated anal - ysis of individual or several digital or digitised works for the purpose of gathering information, in particular regarding patterns, trends and correlations.
(2) It is permitted to reproduce lawfully accessible works in order to carry out text and data mining. Cop - ies are to be deleted when they are no longer needed to carry out text and data mining. (3) Uses in accordance with subsection (2) sentence 1 are permitted only if they have not been reserved by the rightholder. A reservation of use in the case of works which are available online is effective only if it is made in a machine-readable format. Section 60d – Text and data mining for scientific research purposes (1) It is permitted to make reproductions to carry out text and data mining (section 44b (1) and (2) sentence 1) for scientific research purposes in accordance with the following provisions. (2) Research organisations are authorised to make reproductions. “Research organisations” means uni - versities, research institutes and other establishments conducting scientific research if they 1. pursue non-commercial purposes, [...] The decision of the Higher Regional Court of Hamburg The Higher Regional Court of Hamburg upheld the Regional Court of Hamburg’s ruling. The latter had ruled that the respondent was entitled to download the appellant’s copyright-protected image to create AI training datasets. According to the Regional Court’s ruling, this right did not follow from Section 44b of the German Act on Copyright due to the plaintiff’s explicit prohibition. However, as the respondent made the data set containing the disputed image available free of charge and did not pursue any commercial purposes in doing so, his right could be based on Section 60d of the German Act on Copyright. The Regional Court also emphasised that its ruling related exclusively to downloading a protected work for the purpose of creating a non-commercial database, and that the subsequent AI training using the copyright- protected work did not affect the ruling on copyright infringement.
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