Attorney copyright law

Who and what does copyright protect?

Copyright grants the author the exclusive, individual right to the result of his own mental creations (so-called 'works'). As an objective right, copyright in this sense determines the content, scope, transferability and consequences of the infringement of copyrights. Primarily, the German Copyright Act (Urheberrechtsgesetz, 'Copyright Act'), the German Act on Copyright Administration (Wahrnehmungsgesetz) and the German Publishing Act (Verlagsgesetz) play a crucial role. In its extension into media and publishing law, copyright is flanked by additional laws and legal norms, such as trademark law (law on work titles), design law, the law on general personal rights and unfair competition law. Moreover, national copyright law is determined by European legal provisions that have been adopted as guidelines in the efforts to protect copyrights of the Member States of the European Union.

Protected works include the following, among others:

  • literary works, such as writings, speeches and computer programmes;
  • works of music;
  • pantomime works, including works of the art of dance;
  • works of fine art, including works of architecture and of applied art, and drafts of such works;
  • photographic works, including works similar to photographic works that are created;
  • cinematographic works, including works similar to cinematographic works that are created;
  • illustrations of a scientific or technical nature, such as drawings, plans, maps, sketches, tables and three-dimensional illustrations
  • databases

What rights does copyright impart?

Copyright imparts upon the author the exclusive right to, directly or indirectly, temporarily or permanently, in any manner and in any form, reproduce or exploit his work in whole or in part, and permit or prohibit such actions by third parties.

In detail, this includes the following, among other things:

  • (non-)transferable moral rights (right of publicity; right of revocation; work protection right; right to recognition of authorship)
  • the right to preprinting or reprinting, in whole in part;
  • the right to translation into another language;
  • the right to duplication
  • the right to dissemination
  • the right to make publicly accessible and marketing

Compensation issues

Since 1 July 2002, the amount of compensation has been subject to the provisions of §§ 32 et seq. of the Copyright Act. These provide for a statutory claim to reasonable compensation for the author. Upon the examination of whether an agreed fee is 'reasonable', the income and benefits that the exploiting party (for example, a publisher or a production company) is drawing or has retrospectively drawn from the use of the services of the author are compared to the fee. According to the statutory definition in § 32, para. 2 of the Copyright Act, compensation is reasonable if it was calculated according to a common compensation rule between the exploiting party and the author (§ 36 of the Copyright Act). Moreover, it is reasonable if, at the point in time of concluding the agreement, it corresponds to that which is customarily and reasonably paid in business transactions according to the type and scope of the granted use options, in particular according to the duration and point in time of use, under consideration of all circumstances. If the agreed compensation is not reasonable, the author shall have a statutory claim to amend the agreement (§ 32, para. 1, sentence 3 of the Copyright Act); if the unreasonableness of the compensation occurs only at a later date (in particular, because of the purchaser's development of the work), this shall give rise to a claim according to § 32, para. 1, sentence 1 of the Copyright Act under the conditions specified therein.

New media – iTunes, e-books and the like

Copyright law is subject to constant changes and new challenges, which require a continuous examination of this area of law.

For example, the District Court for the Southern District of New York had to decide on the ability to resell 'used' iTunes songs. The New York court ruled against such an ability, primarily taking into account copyright considerations. The case caused a considerable stir around the world.

A case that was not quite as international and media-intensive, but no less interesting, was that of the Regional Court of Bielefeld of 5 March 2013 (file reference 4 O 191/11), which had to decide on whether the 'resale' of e-books could be prohibited by the general terms and conditions of business of a publisher. The Regional Court initially based its decision on the premise that e-books, which are downloaded (and not acquired by means of burning on a CD), do not comprise physical objects (within the meaning of § 903 of the German Civil Code (Bürgerliches Gesetzbuch, 'BGB'), since the users here receive only a 'virtual' copy, which is not comparable to a traditional book. In the grounds of the judgement, it states succinctly that 'from the standpoint of the law of property, ownership within the meaning of § 903 BGB cannot exist in non-physical objects' (Grounds of the Judgement, p. 9. This statement can be easily misunderstood if the qualifier 'from the standpoint of the law of property' is left out. Certainly, the Regional Court of Bielefeld does not want to assert that non-physical (intangible) legal interests are not amenable to property, because such an understanding is in conflict with the absolutely prevailing opinion in literature and case law, according to which intangible legal interests (such as copyrights, trademarks, patents, etc.) are subject to the constitutional protection of property under Art. 14 of the German Basic Law (Grundgesetz). As stated in § 903 BGB, such legal interests grant their 'owners' an exclusive right, and the owner of an intangible legal interest, to the extent not in conflict with the law or the rights of third parties, may carry out his ownership as he wishes, and preclude others from exerting any influence. Thereof, the options of selling such intangible protected assets must be distinguished – and the Regional Court of Bielefeld simply applies this. That is, there are certain peculiarities in this regard with regard to copyright law. Trademarks, patents, utility models and designs are fully marketable as intangible protected assets; that is, ownership in such rights can be transferred to third parties in terms of both the law of obligations and the law of property. Ownership in a (registered) trademark in this sense may be the subject matter of a purchase contract, and may be fully transferred to a new owner. However, the situation is different with copyright. Copyright is also designed as an all-encompassing right of disposition, and ends where it collides with the rights of others, the law of morals or the constitutional order, and is subject to restrictions in the public interest. However, as a highly personal right, copyright – unlike other intangible protected assets – are not completely transferred to a third party in a legal transaction; that is, 'ownership' in the legal sense cannot be transferred to a 'purchaser' as a 'new' owner. The author is and always remains solely that party whose intellectual, cultural or scientific work led to the creation of a work. However, the author may transfer the exercise of his rights arising from 'ownership' (copyright) to others. Such exploitation rights are transferred by granting so-called 'rights of use' to third parties – exclusively or non-exclusively, and limited or unlimited in terms of time, geography or content (§§ 29, 31 of the Copyright Act). In the absence of a party entitled to use the work, or the expiration or termination of the agreement underlying the grant of the rights of use, they fall back to the author (so-called 'reversion of copyright'). Moreover, if a party entitled to use the work does not take action, or a planned exploitation of the work does not conform (no longer conforms) to the work in the belief of the author, rights of use may be revoked. Thus, a loss of authorship is not intended. If the author wants to exploit his work, the only option remaining to him is granting rights of use.

Finally, the risk of illegal copies does not solely exist with pure Internet sales, but also with the marketing of electronic works on media such as CD-ROMs or DVDs, for which the principle of exhaustion surely applies.

In another judgement, the Higher Regional Court of Brandenburg had to decide on the permissibility of the use of third-party product images within the framework of eBay auctions (Higher Regional Court of Brandenburg, Judgement of 3 Feb. 2009 – file reference: 6 U 58/08). In the case at issue, a 'private seller' auctioned a used GPS receiver through the Internet platform eBay, and obtained a price for this of €72.00. As is often the case, the seller augmented his auction with an image of the device to be sold. However, the seller did not himself produce the image; rather, he took it from a third-party website. Of course, this was not permitted.

Consulting must be at the forefront

In conclusion, every entrepreneur and author is advised to seek comprehensive consultation in issues of copyright.