german copyright assignment

Übersetzung durch Ute Reusch.

Translation provided by Ute Reusch.

Stand: Die Übersetzung berücksichtigt die Änderung(en) des Gesetzes durch Artikel 25 des Gesetzes vom 23. Juni 2021 (BGBl. I S. 1858)

Version information: The translation includes the amendment(s) to the Act by Article 25 of the Act of 23 June 2021 (Federal Law Gazette I, p. 1858)

Zur Nutzung dieser Übersetzung lesen Sie bitte den Hinweis unter "Translations" .

For conditions governing use of this translation, please see the information provided under "Translations" .

Act on Copyright and Related Rights

(Urheberrechtsgesetz – UrhG)

Full citation:  Copyright Act of 9 September 1965 (Federal Law Gazette I, p. 1273), as last amended by Article 25 of the Act of 23 June 2021 (Federal Law Gazette I, p. 1858)

table of contents

Part 1 Copyright

Division 1 General

Section 1 General

The authors of works in the literary, scientific and artistic domain enjoy protection for their works in accordance with this Act.

Division 2 Works

Section 2 Protected works

(1) Protected works in the literary, scientific and artistic domain include, in particular:

1.  literary works, such as written works, speeches and computer programs;

2.  musical works;

3.  pantomimic works, including works of dance;

4.  artistic works, including works of architecture and of applied art and drafts of such works;

5.  photographic works, including works produced by processes similar to photography;

6.  cinematographic works, including works produced by processes similar to cinematography;

7.  illustrations of a scientific or technical nature, such as drawings, plans, maps, sketches, tables and three-dimensional representations.

(2) Only the author’s own intellectual creations constitute works within the meaning of this Act.

Section 3 Adaptations

Translations and other adaptations of a work which are the adapter’s own intellectual creations are protected as independent works without prejudice to the copyright in the adapted work. The insubstantial adaptation of an unprotected musical work is not protected as an independent work.

Section 4 Collections and database works

(1) Collections of works, data or other independent elements which by reason of the selection or arrangement of the elements constitute the author’s own intellectual creation (collections) are protected as independent works without prejudice to an existing copyright or related right in one of the individual elements.

(2) For the purposes of this Act, ʻdatabase workʼ means a collection whose elements are arranged systematically or methodically and the individual elements of which are individually accessible by electronic or other means. A computer program (section 69a) used in the creation of the database work or to provide access to its elements does not constitute an integral part of the database work.

Section 5 Official works

(1) Acts, statutory instruments, official decrees and official notices, as well as decisions and official head notes of decisions do not enjoy copyright protection.

(2) The same applies to other official texts published in the official interest for general information purposes, subject to the proviso that the provisions concerning the prohibition of alteration and the acknowledgement of source in section 62 (1) to (3) and section 63 (1) and (2) apply accordingly.

(3) Copyright in respect of private normative works is not affected by subsections (1) and (2) if acts, statutory instruments, decrees or official notices refer to such works without reproducing their wording. In that case the author is obliged to grant every publisher, on equitable conditions, a right of reproduction and distribution. Where a third party is the owner of the exclusive right of reproduction and distribution, that third party is obliged to grant the right of use under sentence 2.

Section 6 Published works and released works

(1) A work is deemed to have been published when it has been made available to the public with the rightholder’s consent.

(2) A work is deemed to have been released when copies of the work have been offered, with the rightholder’s consent, to the public or put into circulation after their production in sufficient quantity. An artistic work is also deemed to have been released when the original or a copy of the work has been made permanently available to the public with the rightholder’s consent.

Division 3 Authors

Section 7 Author

The author is the creator of the work.

Section 8 Joint authors

(1) Where several persons have jointly created a work without it being possible to separately exploit their individual shares in the work, they are joint authors of the work.

(2) The right of publication and of exploitation of the work accrues jointly to the joint authors; alterations to the work are permitted only with the joint authors’ consent. However, a joint author may not refuse consent to publication, exploitation or alteration contrary to the principles of good faith. Each joint author is entitled to assert claims arising from violations of the joint copyright; a joint author may, however, demand performance only to all the joint authors.

(3) Proceeds derived from the use of the work are due to the joint authors in accordance with the extent of their involvement in the creation of the work, unless otherwise agreed between the joint authors.

(4) Joint authors may each waive their share of the exploitation rights (section 15). They must make a declaration of waiver to the other joint authors. Upon such declaration being made their share accrues to the other joint authors.

Section 9 Authors of compound works

Where several authors have combined their works for the purpose of joint exploitation, each may require the consent of the others to the publication, exploitation or alteration of the compound works if the consent of the others may be reasonably expected in good faith.

Section 10 Presumption of authorship or ownership

(1) The person designated as the author in the usual manner on the copies of a released work or on the original of an artistic work is regarded as the author of the work in the absence of proof to the contrary; the same applies to any designation which is known to be a pseudonym or stage name of the author.

(2) Where the author has not been named in accordance with subsection (1), it is presumed that the person designated as the editor on the copies of the work is entitled to assert the rights of the author. Where no editor has been named, it is presumed that the publisher is entitled to assert such rights.

(3) The presumption in subsection (1) applies accordingly to the holder of exclusive rights of use in the event of proceedings for temporary relief or injunctive relief. The presumption does not apply in the relationship to the author or the original holder of the related right.

Division 4 Scope of copyright

Subdivision 1 General

Section 11 General

Copyright protects the author in his or her intellectual and personal relationships to the work and in respect of the use of the work. It also serves to ensure equitable remuneration for the use of the work.

Subdivision 2 Moral rights of authors

Section 12 Right of publication

(1) The author has the right to determine whether and how his or her work is to be published.

(2) The author reserves the right to communicate or describe the content of his or her work to the public as long as neither the work nor the essential content or a description of the work has been published with his or her consent.

Section 13 Recognition of authorship

The author has the right to be identified as the author of the work. The author may determine whether the work is to bear a designation of authorship and which designation is to be used.

Section 14 Distortion of work

The author has the right to prohibit the distortion or any other derogatory treatment of his or her work which is capable of prejudicing the author’s legitimate intellectual or personal interests in the work.

Subdivision 3 Exploitation rights

Section 15 General

(1) The author has the exclusive right to exploit his or her work in material form; this right in particular includes

1.  the right of reproduction (section 16),

2.  the right of distribution (section 17),

3.  the right of exhibition (section 18).

(2) Further, the author has the exclusive right to communicate his or her work to the public in non-material form (right of communication to the public). The right of communication to the public in particular compromises

1.  the right of recitation, performance and presentation (section 19),

2.  the right of making the work available to the public (section 19a),

3.  the right of broadcasting (section 20),

4.  the right of communication by video or audio recordings (section 21),

5.  the right of communication of broadcasts and of works made available to the public (section 22).

(3) The communication of a work is deemed public if it is intended for a plurality of members of the public. Anyone who is not connected by a personal relationship with the person exploiting the work or with the other persons to whom the work is made perceivable or made available in non-material form is deemed to be a member of the public.

Section 16 Right of reproduction

(1) ʻRight of reproductionʼ means the right to produce copies of the work, whether on a temporary or on a permanent basis and regardless of by which means of procedure or in which quantity they are made.

(2) The transfer of the work to devices for the purposes of repeated communication of video and sound sequences (video and audio recordings), regardless of whether this is the recording of a communication of the work on a video or audio recording medium or the transfer of the work from one video or audio recording medium to another, also constitutes reproduction.

Section 17 Right of distribution

(1) ʻRight of distributionʼ means the right to offer the original or copies of the work to the public or to put them into circulation.

(2) Where the original or copies of the work have been put into circulation by sale with the consent of the person entitled to distribute them within the territory of the European Union or another Contracting Party of the Agreement on the European Economic Area, their dissemination is permitted, except by means of rental.

(3) For the purposes of this Act, ʻrentalʼ means the time-limited transfer for use which directly or indirectly serves profit-making purposes. However, rental does not include the transfer of originals or copies

1.  of buildings or works of applied art, or

2.  used in the context of an employment or service relationship for the exclusive purpose of fulfilling obligations resulting from the employment or service relationship.

Section 18 Right of exhibition

ʻRight of exhibitionʼ means the right to display in public the original or the copies of an unpublished artistic work or an unpublished photographic work.

Section 19 Right of recitation, performance and presentation

(1) ʻRight of recitationʼ means the right to give a public recital of a literary work by means of personal performance.

(2) ʻRight of performanceʼ means the right to give a public recital of a musical work by means of personal performance or to give a public theatrical performance of a work.

(3) The right of recitation and the right of performance include the right to make speeches and performances perceivable to the public by means of a screen, loudspeaker or similar technical devices outside of that room in which the personal performance is taking place.

(4) ʻRight of presentationʼ means the right to make an artistic work, a photographic work, a cinematographic work or illustrations of a scientific or technical nature perceivable to the public by the use of technical devices. The right of presentation does not include the right to make the radio broadcast or the making available to the public of such works perceivable to the public (section 22).

Section 19a Right of making works available to public

ʻRight of making works available to the publicʼ means the right to make the work available to the public, either by wire or wireless means, in such a manner that members of the public may access it from a place and at a time individually chosen by them.

Section 20 Right of broadcasting

ʻRight of broadcastingʼ means the right to make a work available to the public by broadcasting, such as radio and television transmission, satellite transmission, cable transmission or by similar technical means.

Section 20a European broadcasts transmitted by satellite

(1) Where a broadcast is transmitted by satellite within the territory of a Member State of the European Union or Contracting Party of the Agreement on the European Economic Area, it is deemed to have been transmitted solely in that Member State or Contracting Party of the Agreement.

(2) Where a broadcast is transmitted by satellite within the territory of a state which is neither a Member State of the European Union nor a Contracting Party of the Agreement on the European Economic Area and in which in respect of the right of satellite transmission the level of protection provided for under Chapter II of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ L 248, 6.10.1993, p. 15) is not guaranteed, it is deemed to have been transmitted solely in that Member State or Contracting Party of the Agreement

1.  in which the uplink station is located from which the programme-carrying signals are transmitted to the satellite or

2.  in which the broadcasting organisation has its place of business in cases where the condition under no. 1 is not met.

The right of broadcasting is to be asserted against the operator of the uplink station in the case referred to in no. 1 and against the broadcasting organisation in the case referred to in no. 2.

(3) ʻSatellite transmissionʼ within the meaning of subsections (1) and (2) means the introduction, under the control and responsibility of the broadcasting organisation, of programme-carrying signals intended for reception by the public into an uninterrupted chain of transmission leading up to the satellite and down towards the earth.

Section 20b Retransmission

(1) The right to retransmit a transmitted work in the context of a simultaneous, unaltered and unabridged retransmission of a programme (retransmission) may be asserted only by a collecting society. This does not apply to

1.  rights in a work which is transmitted exclusively via the internet,

2.  rights asserted by a broadcasting organisation in relation to its own programmes.

(1a) In the case of retransmission via an internet access service, subsection (1) only applies if the operator of the retransmission service exclusively provides authorised users access to the programme in a secure environment.

(1b) ʻInternet access serviceʼ within the meaning of subsection (1a) means a service pursuant to Article 2 (2) no. 2 of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union (OJ L 310, 26.11.2015, p. 1), as last amended by Directive (EU) 2018/1972 (OJ L 321, 17.12.2018, p. 36; L 334, 27.12.2019, p. 164).

(2) Where the author has granted the right of retransmission to a broadcasting organisation or to the producer of an audio recording or film, the retransmission service is, nevertheless, required to pay the author equitable remuneration for such retransmission. The claim for remuneration may not be waived. It may be assigned in advance only to a collecting society and may be asserted only by a collecting society. This provision does not conflict with the collective agreements, works agreements and joint remuneration agreement of broadcasting organisations insofar as the author is thereby granted equitable remuneration for each retransmission.

Section 20c European additional online service

(1) ʻAdditional online serviceʼ means

1.  the broadcasting of programmes via the internet simultaneously with their broadcasting in another manner,

2.  the making available to the public via the internet of previously broadcast programmes which can then be retrieved for a limited period after the broadcast, including supplementary materials.

(2) The reproduction and communication to the public of works in the realisation of an additional online service by a broadcasting organisation in a Member State of the European Union or Contracting Party of the Agreement on the European Economic Area are deemed to have been solely effected in that Member State or Contracting Party in which the broadcasting organisation has its main establishment. The rightholder and the broadcasting organisation may limit the scope of the rights of use in relation to the broadcasting organisation’s additional online services.

(3) In the case of television programmes, subsection (2) only applies to the broadcasting organisation’s own productions which it fully financed itself and to news programmes and reporting on current events, but not to the transmission of sports events.

Section 20d Direct injection

(1) Where a broadcasting organisation transmits the programme-carrying signals to a signal distributor without itself simultaneously communicating them to the public (direct injection), and the signal distributor communicates these programme-carrying signals to the public, the broadcasting organisation and the signal distributor are deemed to be parties involved in a single communication to the public.

(2) Section 20b applies accordingly.

Section 21 Right of communication by video or audio recordings

The right of communication by video or audio recordings is the right to make speeches or performances of a work perceivable to the public by means of video or audio recordings. Section 19 (3) applies accordingly.

Section 22 Right of communication of broadcasts and of works made available to public

ʻRight of communication of broadcasts and of communication of the making available to the publicʼ means the right to make perceivable to the public, by screen, loudspeaker or similar technical device, broadcasts and communications of the work as are based on its making available to the public. Section 19 (3) applies accordingly.

Section 23 Adaptations and transformations

(1) Adaptations or other transformations of a work, including, in particular, of a melody, may be published or exploited only with the author’s consent. If the newly created work maintains sufficient distance to the work used, this does not constitute adaptation or transformation within the meaning of sentence 1.

(2) In the case of

1.  the film version of a work,

2.  the execution of plans and drafts of an artistic work,

3.  the reproduction of an architectural work or

4.  the adaptation or transformation of a database work,

the production of the adaptation or transformation already requires the author’s consent.

(3) Subsections (1) and (2) do not apply to alterations of a work for exclusively technical reasons in the case of uses in accordance with section 44b (2), 60d (1), section 60e (1) and section 60f (2).

Section 24 (repealed)

Subdivision 4 Other rights of authors

Section 25 Access to copies of works

(1) The author may require that the owner of the original or of a copy of his or her work make the original or copy thereof available to him or her insofar as this is necessary for the production of copies or adaptations of the work and does not conflict with the owner’s legitimate interests.

(2) The owner is not obliged to surrender the original or the copy to the author.

Section 26 Right of resale

(1) If the original of an artistic work or of a photographic work is resold and if an art dealer or an auctioneer is involved as purchaser, vendor or intermediary, the vendor is to pay the author a share of the selling price. ʻSelling priceʼ within the meaning of sentence 1 is deemed to be the sales price net of tax. If the vendor is a person acting in a private capacity, then the art dealer or the auctioneer who is involved as purchaser or intermediary is jointly and severally liable together with the vendor; in their relationship inter se, the vendor alone is liable for payment. The obligation under sentence 1 does not apply where the selling price amounts to less than 400 euros.

(2) The portion of the selling price amounts to:

1.  4 per cent for the portion of the selling price up to 50,000 euros,

2.  3 per cent for the portion of the selling price from 50,000.01 to 200,000 euros,

3.  1 per cent for the portion of the selling price from 200,000.01 to 350,000 euros,

4.  0.5 per cent for the portion of the selling price from 350,000.01 to 500,000 euros,

5.  0.25 per cent for the portion of the selling price exceeding 500,000 euros.

The total amount of the royalty on resale does not exceed 12,500 euros.

(3) The resale right is inalienable. Authors may not waive their share in advance.

(4) Authors may require provision of information from an art dealer or an auctioneer as to which of their originals of works of art have been resold with the involvement of the art dealer or the auctioneer during the last three years prior to the request for information.

(5) Where necessary for the assertion of a claim against the vendor, authors may require the art dealer or the auctioneer to provide the name and address of the vendor as well as the amount of the selling price. The art dealer or the auctioneer may refuse to provide the name and address of the vendor if that vendor pays the share due to the author.

(6) The claims under subsections (4) and (5) may only be asserted through a collecting society.

(7) Where there is reasonable doubt as to the accuracy or completeness of the information provided in accordance with subsection (4) or (5), the collecting society may require access to the account books or to other documents to be granted, at the choice of the person obliged to provide the information, either to the collecting society or to a chartered accountant or sworn auditor designated by that person to the extent which is necessary to ascertain the accuracy or completeness of the information. Where the information is found to be inaccurate or incomplete, the person obliged to provide the information is to bear the costs of the examination.

(8) The foregoing provisions do not apply to architectural works and works of applied art.

Section 27 Remuneration for rental and lending

(1) Where the author has granted rental rights (section 17) in respect of a video or audio recording to the producer of the audio recording or of a film, the lessor is, nevertheless, required to pay the author equitable remuneration for the rental. The claim for remuneration may not be waived. It may be assigned in advance only to a collecting society.

(2) The author is to be paid equitable remuneration for the lending of those originals or copies of a work whose dissemination is permitted under section 17 (2) if the originals or copies are lent through a publicly accessible institution (library, collection of video or audio recordings or other originals or copies thereof). ʻLendingʼ within the meaning of sentence 1 means the time-limited transfer for use which neither directly nor indirectly serves profit-making purposes; section 17 (3) sentence 2 applies accordingly.

(3) The claims for remuneration under subsections (1) and (2) may be asserted only through a collecting society.

Division 5 Dealings in rights in copyright

Subdivision 1 Succession to copyright

Section 28 Inheritance of copyright

(1) Copyright is inheritable.

(2) The author may assign the exercise of copyright to an executor by testamentary disposition. Section 2210 of the Civil Code ( Bürgerliches Gesetzbuch ) does not apply.

Section 29 Transfer of copyright

(1) Copyright is not transferrable, unless it is transferred in the execution of a testamentary disposition or to co-heirs as part of the partition of an estate.

(2) The granting of rights of use (section 31), contractual authorisations and agreements based on exploitation rights, as well as contracts on the moral rights of authors as regulated under section 39 are permitted.

Section 30 Author’s successor in title

The author’s successor in title holds the rights to which the author is entitled under this Act, unless otherwise provided for.

Subdivision 2 Rights of use

Section 31 Grant of rights of use

(1) The author may grant to another the right to use the work in a particular manner or in any manner (right of use). A right of use may be granted as a non-exclusive right or as an exclusive right, and may be limited in respect of place, time or content.

(2) A non-exclusive right of use entitles the rightholder to use the work in the manner permitted without it ruling out use by other persons.

(3) An exclusive right of use entitles the rightholder to use the work in the manner permitted, to the exclusion of all other persons, and to grant rights of use. It may be agreed that utilisation by the author is reserved. Section 35 remains unaffected.

(4) (repealed)

(5) If the types of use were not specifically designated when a right of use was granted, the types of use to which the right extends is determined in accordance with the purpose envisaged by both parties to the contract. A corresponding rule applies to the questions of whether a right of use has in fact been granted, whether it is a non-exclusive or an exclusive right of use, how far the right of use and the right to forbid extend, and to what limitations the right of use is subject.

Section 31a Contracts concerning unknown types of use

(1) A contract in which the author grants rights in respect of unknown types of use, or in which the author undertakes to do so, must be drawn up in writing. There is no need for a written contract in cases where the author grants to all an unremunerated non-exclusive right of use. The author may revoke this grant of a right or revoke the obligation thereto. The right of revocation expires after three months have elapsed since the other person sent the author, at the address last known to the sender, notification of the intended commencement of the new type of use of the author’s work.

(2) The right of revocation does not apply where the parties, upon becoming aware of the new type of use, have agreed on remuneration in accordance with section 32c (1). The right of revocation also does not apply where the parties have arranged for remuneration under a joint remuneration agreement. The right of revocation expires upon the author’s death.

(3) If there is consolidation of more than one work, or more than one contribution to a work, into one entity which, in the new type of use, may be used appropriately only in circumstances where there is exploitation of all works or contributions to a work, the author may not exercise the right of revocation contrary to good faith.

(4) There can be no advance waiver of the rights under subsections (1) to (3).

Section 32 Equitable remuneration

(1) The author is entitled to the contractually agreed remuneration for the granting of rights of use and permission to use the work. If the amount of the remuneration has not been determined, equitable remuneration is deemed to have been agreed. If the agreed remuneration is not equitable, the author may require the other party to consent to a modification of the agreement so that the author is granted equitable remuneration.

(2) Remuneration is deemed to be equitable if it is determined in accordance with a joint remuneration agreement (section 36). Any other remuneration is deemed to be equitable if at the time the agreement is concluded it corresponds to what is customary and fair in business relations, given the nature and extent of the possibility of use granted, in particular the duration, frequency, extent and time of use, and considering all circumstances. Flat-rate remuneration must guarantee the author’s equitable participation in the expected total proceeds from such use and must be justified in the light of sector-related specificities.

(2a) A joint remuneration agreement may also be used as the basis to determine equitable remuneration in the case of contracts concluded prior to their temporal scope of application.

(3) An agreement which deviates from subsections (1) to (2a) to the detriment of the author may not be invoked by the other party to the agreement. The provisions stipulated in sentence 1 apply even if they are circumvented by other arrangements. The author may, however, grant to all a non-exclusive right of use free of charge.

(4) The author has no right under subsection (1) sentence 3 to the extent that the remuneration for the use of his or her works has been determined in a collective agreement.

Section 32a Author’s further participation

(1) Where the author has granted to another a right of use on conditions which, taking into account the author’s entire relationship with the other party, result in the agreed remuneration proving to be disproportionately low in comparison to the proceeds and benefits derived from the use of the work, the other party is obliged, at the author’s request, to consent to a modification of the agreement which grants the author further equitable participation appropriate to the circumstances. It is irrelevant whether the parties to the agreement had foreseen or could have foreseen the amount of the proceeds or benefits obtained.

(2) If the other party has transferred the right of use or granted further rights of use and if the author’s disproportionately low remuneration results from proceeds or benefits enjoyed by a third party, the latter is directly liable to the author in accordance with subsection (1), taking into account the contractual relationships within the licence chain. The other party is then not liable.

(3) There can be no advance waiver of the rights under subsections (1) and (2). An expected benefit is not subject to compulsory execution; any disposition regarding the expected benefit is ineffective. The author may, however, grant to all an unremunerated non-exclusive right of use.

(4) The author does not have a right under subsection (1) if the remuneration has been determined in accordance with a joint remuneration agreement (section 36) or in a collective agreement and explicitly provides for further equitable participation in cases under subsection (1). Section 32 (2a) applies accordingly.

Section 32b Compulsory application

The application of sections 32, 32a, 32d to 32f and 38 (4) is compulsory

1.  if German law would be applicable to the contract of use in the absence of a choice of law or

2.  to the extent that the agreement covers significant acts of use within the territory to which this Act applies.

Section 32c Remuneration for types of use which subsequently become known

(1) The author is entitled to separate equitable remuneration where the other contracting party commences a new type of use of the author’s work pursuant to section 31a which was agreed upon, but still unknown, at the time the contract was concluded. Section 32 (2) and (4) applies accordingly. The other contracting party is, without delay, to inform the author about the commencement of the new type of use of his or her work.

(2) Where the other contracting party has transferred the right of use to a third party, the third party is liable to provide the remuneration pursuant to subsection (1) upon commencement of the new type of use of the author’s work. There is no liability on the part of the contracting party.

(3) There can be no advance waiver of the rights under subsections (1) and (2). The author may, however, grant to all an unremunerated non-exclusive right of use.

Section 32d Provision of information by and accountability of contracting party

(1) Where a right of use has been granted in return for payment, then at least once a year the contracting party provides the author with information about the extent of the use of the work and the proceeds and benefits derived therefrom. The information is provided on the basis of that information which is generally available in the ordinary course of business activities. Such information is to be provided for the first time one year after the use of the work commences and only for the duration of its use.

(1a) The contracting party only needs to provide the names and addresses of its sub-licensees and to render accountability in relation to the information referred to in subsection (1) at the author’s request.

(2) Subsections (1) and (1a) do not apply insofar as

1.  the author has made only a secondary contribution to a work, product or service, unless the author provides clear indications based on verifiable facts that the information is needed in relation to the amendment of a contract (section 32a (1) and (2)); a contribution is, in particular, secondary where it has little influence on the overall impression created by a work or the nature of a product or service, for example because it does not belong to the typical content of a work, product or service, or

2.  the claim on the contracting party is disproportionate for other reasons, in particular if the effort involved in providing the information would be disproportionate to the income generated from the use of the work.

(3) Derogation from subsections (1) to (2) is possible only by an agreement which is based on a joint remuneration agreement (section 36) or collective agreement. In the case referred to in sentence 1, it is presumed that the collective agreements at least guarantee the author a degree of transparency comparable to that guaranteed under statutory provisions.

Section 32e Provision of information by and accountability of third parties in licence chain

(1) Where the author’s contracting partner has transferred the right of use or granted further rights of use, the author may also demand information and accountability to the extent set out in section 32d (1) to (2) from those third parties

1.  which economically essentially determine the use processes in the licence chain or

2.  from whose profits or benefits the author’s disproportionately low remuneration in accordance with section 32a (2) results.

The author may assert claims under sentence 1 only to the extent that the contracting party does not meet the obligation to provide information under section 32d within three months after the due date or sufficient information is not provided about how third parties are using the work and the profits and benefits derived therefrom.

(2) To assert the claims under subsection (1) it is sufficient for there to be clear indications based on verifiable facts that their conditions are met.

(3) Section 32d (3) applies.

Section 32f Mediation and out-of-court dispute resolution

(1) Authors and users of works may, in particular in the case of disputes concerning rights and claims under sections 32 to 32e, institute a mediation procedure or another voluntary out-of-court dispute resolution procedure.

(2) The author’s contracting partner or other users of works cannot rely on an agreement which deviates from subsection (1) to the detriment of the author.

Section 32g Representation by associations

Authors may be represented by authors’ associations in disputes concerning rights and claims under sections 32 to 32f in accordance with the provisions of the Legal Services Act ( Rechtsdienstleistungsgesetz ) and rules of procedure.

Section 33 Continuing effect of rights of use

Exclusive and non-exclusive rights of use remain effective with respect to rights of use granted subsequently. The same rule applies if the rightholder who has granted the right of use changes or if the rightholder waives the right.

Section 34 Transfer of rights of use

(1) A right of use may only be transferred with the author’s consent. The author may not refuse consent contrary to the principles of good faith.

(2) Where the transfer of the right of use in respect of a collection (section 4) includes the transfer of the rights of use of the individual works in the collection, the consent of the author of the collection suffices.

(3) A right of use may be transferred without the author’s consent if the transfer is made in the context of the sale of the whole of an enterprise or the sale of parts of an enterprise. The author may revoke the right of use if exercise of the right of use by the transferee may not be reasonably demanded of the author. Sentence 2 also applies if the shareholder relations in respect of the enterprise of the holder of the right of use substantially change.

(4) The transferee is jointly and severally liable together with the author for the discharge of the transferor’s obligations under the agreement if the author has not expressly consented to the transfer of the right of use in the individual case.

(5) The author may not waive the right of revocation and the transferee’s liability in advance. In all other cases, the holder of the right of use and the author may agree on different terms.

Section 35 Grant of further rights of use

(1) The holder of an exclusive right of use may grant further rights of use only with the author’s consent. The author’s consent is not required if the exclusive right of use is granted only to ensure that the author’s interests are served.

(2) The provisions of section 34 (1) sentence 2, (2) and (5) sentence 2 apply accordingly.

Section 35a Mediation and out-of-court dispute resolution in relation to video-on-demand services

Especially in the case of contractual negotiations relating to the granting of rights of use or the making available to the public of audio-visual works via video-on-demand services, the rightholders and users of works may institute a mediation procedure or another voluntary out-of-court dispute resolution procedure.

Section 36 Joint remuneration agreements

(1) In order to determine whether remuneration is equitable pursuant to section 32, 32a and 32c, to regulate the provision of information as required by sections 32d and 32e, and to determine whether the participation is appropriate pursuant to section 87k (1), authors’ associations together with associations of users of works or individual users of works are to establish joint remuneration agreements. Joint remuneration agreements are, as a rule, to take account of the circumstances of the respective area of regulation, especially the users’ structure and size. Regulations contained in collective agreements take precedence over joint remuneration agreements.

(2) Associations as referred to in subsection (1) must be representative, independent and empowered to establish joint remuneration agreements. An association which represents a significant proportion of the respective authors or users of a work is deemed to be empowered within the meaning of sentence 1, unless the members of the association reach a decision to the contrary.

(3) If the parties have so agreed, proceedings for the establishment of joint remuneration agreements are conducted before an arbitration board (section 36a). Proceedings are conducted upon the written request of one of the parties if

1.  the other party does not commence negotiations on joint remuneration agreements within three months after the written request of one of the parties to initiate such negotiations,

2.  negotiations on joint remuneration agreements do result in an outcome within one year after the written request to initiate such negotiations or

3.  one of the parties declares that the negotiations have irretrievably failed.

(4) The arbitration board is to submit to all those parties which participated in this procedure or were called to participate pursuant to section 36a (4a) a settlement proposal, giving reasons, which contains the contents of the joint remuneration agreement. The proposal is deemed to have been accepted if none of the parties referred to in sentence 1 objects within six weeks after receiving the proposal.

Section 36a Arbitration board

(1) In order to establish joint remuneration agreements, authors’ associations together with associations of users of works or individual users of works are to set up an arbitration board if the parties have agreed this or one of the parties has requested that arbitration proceedings be conducted.

(2) The arbitration board consists of an equal number of assessors appointed by each of the respective parties, and an impartial chairperson, the appointment of whom both parties are, as a rule, to agree upon.

(3) If the parties do not reach agreement, the higher regional court competent pursuant to section 1062 of the Code of Civil Procedure ( Zivilprozessordnung ) takes a decision, upon the application of one of the parties, on

1.  who is to be appointed chairperson,

2.  the number of assessors,

3.  the conditions applicable to arbitration proceedings concerning

a)  the ability of the users of the work and associations of users of the work and authors to be a party to the arbitration proceedings (section 36 (1) sentence 1 and (2),

b)  proceedings before the arbitration board conducted at the request of only one of the parties (section 36 (3) sentence 2).

Until such time as the place at which the arbitration proceedings are to be conducted has been determined, that higher regional court is responsible for the decision in whose district the respondent has his or her principal place of business or habitual residence. Sections 1063 and 1065 of the Code of Civil Procedure apply accordingly to the proceedings before the higher regional court.

(4) A request for arbitration proceedings in accordance with section 36 (3) sentence 2 must contain a proposal for the establishment of a joint remuneration agreement. The arbitration board sends the request for arbitration proceedings to the other party and calls on that party to comment in writing within one month.

(4a) Each party may, within three months after learning of the arbitration proceedings, demand that the arbitration board call on other associations of authors to participate if the proposal referred to in subsection (4) sentence 1 concerns works or associated works which can generally only be created with the involvement of other authors who are represented by the aforementioned associations. Subsection (4) sentence 2 applies accordingly. If the association of authors participates, then it and the party representing the users of the work each appoints additional assessors.

(5) The arbitration board decides by majority vote following an oral consultation. The decision is initially taken by the assessors; if a majority vote cannot be obtained, then, following further consultation, the chairperson participates in a renewed vote. If one of the parties does not appoint any members or if the members appointed by one of the parties do not take part in the session despite a timely invitation to do so, the chairperson and the members who have attended decide on their own in accordance with sentences 1 and 2. The arbitration board’s decision is to be set forth in writing, signed by the chairperson and delivered to each party.

(6) The parties bear their own costs as well as the costs of the assessor they have appointed. The other costs are borne by the parties representing the authors participating in the proceedings and the parties representing the users of the work to the extent of one half each. As joint and several debtors they are required, at the request and for the receipt of the presiding judge, to make requisite advance payment for the arbitration board’s work.

(7) The parties may lay down the details of proceedings before the arbitration board in the form of an agreement. The arbitration board informs any participating associations of authors pursuant to subsection (4a) of the progress of proceedings.

(8) The Federal Ministry of Justice and Consumer Protection is authorised to regulate, by statutory instrument not requiring the approval of the Bundesrat, further details of the procedure before the arbitration board, as well as further provisions on the costs of proceedings and the reimbursement of members of the arbitration board.

Section 36b Injunctive relief following breach of joint remuneration agreement

(1) Any person who uses a provision in a contract with an author which deviates from the joint remuneration agreement to the detriment of the author may be required by the injured party to cease and desist if and insofar as that person

1.  has themselves established the joint remuneration agreement as the user of a work or

2.  is a member of an association of users of a work which established the joint remuneration agreement.

Those associations of authors or of users of a work which and those individual users of a work who established the joint agreement are entitled to injunctive relief.

(2) Section 8c (1), (2) no. 1 and (3) and section 12 (1), (3) and (4), and section 13 (1) of the Act against Unfair Competition ( Gesetz gegen den unlauteren Wettbewerb ) apply accordingly to the procedure; if the notification is justified, the notifying party may demand reimbursement of necessary expenses from the party notified. Section 103 applies in respect of publication of the judgment.

Section 36c Individual consequences of breach of joint remuneration agreement

A contracting party involved in establishing a joint remuneration agreement pursuant to section 36b (1) sentence 1 no. 1 or no. 2 cannot invoke a provision which deviates from the joint remuneration agreement to the detriment of the author. The author may demand from the contracting party consent to the agreement being amended so as to eliminate the deviation.

Section 36d Injunctive relief following failure to provide information

(1) If the user of a work does not provide authors with the information as required by section 32d or section 32e in several cases which are the same or similar in nature, that user may be required to cease and desist. The claim under sentence 1 may only be asserted by authors’ associations which meet the requirements of section 36 (2) as regards the relevant group of authors.

(2) To assert the claim under subsection (1) it is sufficient for there to be clear indications based on verifiable facts that its conditions are met.

(3) The claim under subsection (1) is ruled out where the obligation to provide information under section 32d or section 32e is regulated by an agreement which is based on a joint remuneration agreement (section 36) or collective agreement.

(4) Section 36b (2) applies.

Section 37 Agreements to grant rights of use

(1) Where the author grants to another a right of use in a work, then, in cases of doubt, the author retains the right to consent to the publication or exploitation of an adaptation of the work.

(2) Where the author grants to another a right of use in the reproduction of the work, then, in cases of doubt, the author retains the right to transfer the work to video and audio recording mediums.

(3) Where the author grants to another a right of use in a communication of the work to the public, then, in cases of doubt, the author is not entitled to make the communication perceivable to the public by means of a screen, loudspeaker or similar technical devices outside of the event for which it is to be used.

Section 38 Contributions to collections

(1) Where the author permits the inclusion of the work in a collection which is published periodically, then, in cases of doubt, the publisher or editor acquires an exclusive right of reproduction, distribution and making available to the public. However, the author may otherwise reproduce, distribute and make available to the public the work upon expiry of one year, unless otherwise agreed.

(2) Subsection (1) sentence 2 also applies to a contribution to a collection which is not published periodically the grant of permission of use for which does not entitle the author to payment of remuneration.

(3) Where the contribution is made available to a newspaper, the publisher or editor acquires a non-exclusive right of use, unless otherwise agreed. Where the author grants an exclusive right of use, he or she is authorised, immediately after the contribution is released, to otherwise reproduce or distribute it, unless otherwise agreed.

(4) The author of a scientific contribution which results from research activities at least half of which were financed by public funds and which was reprinted in a collection which is published periodically at least twice per year also has the right, if he or she has granted the publisher or editor an exclusive right of use, to make the contribution available to the public upon expiry of 12 months after first publication in the accepted manuscript version, unless this serves a commercial purpose. The source of the first publication must be cited. Any deviating agreement to the detriment of the author is ineffective.

Section 39 Alterations of work

(1) The holder of a right of use is not permitted to alter the work, its title or designation of authorship (section 10 (1)), unless otherwise agreed.

(2) Alterations to the work and its title to which the author cannot refuse consent based on the principles of good faith are permitted.

Section 40 Agreements as to future works

(1) A contract in which the author undertakes to grant rights of use in future works which are not specified in any way or are only referred to by type must be made in writing. The contract may be terminated by either party after a period of five years following its conclusion. The term of notice is six months, unless a shorter term is agreed.

(2) The right of termination may not be waived in advance. Other contractual or statutory rights of termination remain unaffected.

(3) Where rights of use in future works have been granted in the performance of the contract, then upon termination of the contract the provision concerning the works which have not yet been supplied becomes ineffective.

Section 40a Right to other exploitation after 10 years in case of flat-rate remuneration

(1) Where the author has granted an exclusive right of use against payment of flat-rate remuneration, the author is nevertheless entitled to exploit the work in another manner after the expiry of 10 years. The first owner’s right of use continues as a non-exclusive right of use for the remainder of the period for which it was granted. The period referred to in sentence 1 begins to run upon the granting of the right of use or, if the work is delivered at a later stage, upon delivery. Section 38 (4) sentence 2 applies accordingly.

(2) The contracting parties may extend the exclusivity of the right to cover the entire duration for which the right of use was granted at the earliest five years after the point in time referred to in subsection (1) sentence 3.

(3) In derogation from subsection (1), the author may, when concluding the contract, grant an exclusive right of use without any limitation of time if

1.  the author makes only a secondary contribution to a work, product or service; a contribution is, in particular, secondary where it has little influence on the overall impression created by a work or the nature of a product or service, for example because it does not belong to the typical content of a work, product or service,

2.  the work is a work of architecture or the draft of such a work,

3.  the work is, with the author’s consent, intended for use in a trade mark or other distinctive sign, in a design or Community design or

4.  the work is not intended for publication.

(4) Derogation from subsections (1) to (3) to the detriment of the author is possible only by an agreement which is based on a joint remuneration agreement (section 36) or collective agreement.

Section 41 Right of revocation for non-exercise

(1) If the holder of an exclusive right of use does not exercise this right or only does so insufficiently, the author may revoke either the exclusiveness of the right of use alone or the right of use as a whole. This does not apply if the non-exercise or the insufficient exercise of the right of use is predominantly due to circumstances which the author can be reasonably expected to remedy.

(2) The right of revocation may not be exercised before the expiry of two years following the grant or transfer of the right of use or, if the work is delivered at a later date, since its delivery. In the case of a contribution to a newspaper the period is three months, in the case of a contribution to a periodical published monthly or at shorter intervals six months, and in the case of a contribution to other periodicals one year.

(3) The revocation may not be declared until after the author has, upon notification of the revocation, granted the holder of the right of use an appropriate extension to sufficiently exploit the right of use. It is not necessary to determine an extension if it is impossible for the rightholder to exercise the right of use or the rightholder refuses to do so or if granting an extension would prejudice the author’s overriding interests.

(5) Upon the revocation as per subsection (1) becoming effective, the exclusive right of use becomes a non-exclusive right of use or expires as a whole.

(6) The author is required to compensate the person affected if and insofar as this is fair and equitable.

(7) The rights and claims of the persons involved in accordance with other statutory provisions remain unaffected.

Section 42 Right of revocation for changed conviction

(1) The author may revoke a right of use vis-à-vis the rightholder if the work no longer reflects the author’s conviction and the author can therefore no longer be expected to agree to the exploitation of the work. The author’s successor in title (section 30) may exercise the right of revocation only if he or she can prove that the author would have been entitled to exercise this right prior to his or her death and was prevented from exercising the right or provided for its exercise by testamentary disposition.

(2) The right of revocation may not be waived in advance. Its exercise may not be precluded.

(3) The author must adequately compensate the holder of the right of use. The compensation must at least cover the costs which the holder of the right of use incurred until such time as the revocation was declared; however, no account is taken of costs attributable to those uses of the work which have already been made. The revocation does not become effective until the author has reimbursed the costs or provided security therefor. The holder of the right of use is to inform the author of the amount of the costs within three months after the revocation is declared; if the holder of the right of use does not fulfil this obligation, the revocation becomes effective upon the expiry of this period.

(4) If the author wishes to resume exploitation of the work after revocation, he or she is obliged to offer a corresponding right of use to the previous holder of the right of use on reasonable conditions.

(5) The provisions of section 41 (5) and (7) apply accordingly.

Section 42a Compulsory licence for production of audio recordings

(1) If a producer of audio recordings has been granted a right of use in a musical work entitling him or her to transfer the work onto audio recording mediums and to reproduce and distribute these for commercial purposes, the author is required, upon release of the work, to also grant a right of use with the same content on reasonable conditions to any other producer of audio recordings whose main establishment or domicile is located within the territory to which this Act applies; this provision does not apply if the right of use referred to is lawfully administered by a collecting society or if the work no longer reflects the author’s conviction and the author can therefore no longer reasonably be expected to agree to the exploitation of the work and he or she has for that reason revoked any existing right of use. Section 63 applies accordingly. The author is not required to authorise the use of the work in the production of a cinematographic work.

(2) The obligation under subsection (1) is applicable with respect to a producer of audio recordings who has neither his or her main establishment nor domicile within the territory to which this Act applies only if, as evidenced by a notification by the Federal Ministry of Justice and Consumer Protection in the Federal Law Gazette, a corresponding right is granted by the state in which his or her main establishment or domicile is located to producers of audio recordings whose main establishments or domiciles are within the territory to which this Act applies.

(3) A right of use granted under the foregoing provisions has effect only within the territory to which this Act applies and for export to states in which the work does not enjoy protection against transferral to audio mediums.

(4) If the author has granted to another the exclusive right of use entitling that person to transfer, for commercial purposes, the work onto audio recording mediums and to reproduce and distribute those recordings, the foregoing provisions are applicable, except that the holder of the exclusive right of use is required to grant the right of use referred to in subsection (1).

(5) The foregoing provisions apply accordingly to a literary work employed as the text of a musical work if the author of the literary work has granted to a producer of audio recordings a right to record the literary work in conjunction with the musical work on audio recording mediums and to reproduce and distribute such recordings.

(6) In those cases where neither the author nor, in the case referred to in subsection (4), the holder of the exclusive right of use has a legal domicile within the territory to which this Act applies, actions claiming the grant of rights of use are to be heard by the courts located in the district in which the Patent Office has its principal place of business. Temporary injunctions may be issued even if the conditions of sections 935 and 940 of the Code of Civil Procedure are not fulfilled.

(7) The foregoing provisions do not apply if the right of use referred to in subsection (1) has been granted solely for the purpose of producing a film.

Section 43 Authors in employment or service

The provisions of this Subdivision also apply where the author has created the work in the fulfilment of obligations resulting from an employment or service relationship, unless otherwise provided in accordance with the terms or nature of the employment or service relationship.

Section 44 Sale of original of work

(1) If the author sells the original of a work, then, in cases of doubt, he or she is not deemed to have granted a right of use to the buyer.

(2) The owner of the original of an artistic work or of a photographic work is authorised to exhibit the work in public even if it has not yet been published, unless the author has explicitly ruled this out at the time of the sale of the original.

Division 6 Limitations on copyright through uses permitted by law

Subdivision 1 Uses permitted by law

Section 44a Temporary acts of reproduction

Those temporary acts of reproduction are permitted which are transient or incidental and constitute an integral and essential part of a technical process and whose sole purpose is to enable

1.  a transmission in a network between third parties by an intermediary or

2.  a lawful use

of a work or other protected subject matter to be made and which have no independent economic significance.

Section 44b Text and data mining

(1) ʻText and data miningʼ means the automated analysis 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. Copies 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 45 Administration of justice and public security

(1) It is permitted to make individual copies of works for use in proceedings before a court, an arbitration tribunal or authority, or to have such copies made.

(2) Courts and authorities may, for the purposes of the administration of justice and public security, make copies of portraits or have these reproduced.

(3) The distribution, exhibition in public and communication to the public of the works is permitted under the same conditions as apply to reproduction.

Section 45a Persons with disabilities

(1) It is permitted to reproduce a work for non-commercial purposes for and to distribute it exclusively to persons whose access to the work is, owing to a disability, not possible or is made considerably more difficult by the already available means of sensual perception, if such reproduction is necessary to facilitate access.

(2) Equitable remuneration is to be paid to the author for such reproduction and distribution; production of only individual copies is exempted. Claims may only be asserted through a collecting society.

(3) Subsections (1) and (2) do not apply, only sections 45b and 45c, to the use of literary works and graphic recordings of musical works for the benefit of persons with a visual impairment or reading disability.

Section 45b Persons with visual impairment or reading disability

(1) Persons with a visual impairment or reading disability may reproduce, for their personal use, published literary works which are available in text or audio format as well as graphic recordings of musical works, or may have them reproduced, in order that they may be converted into an accessible format. This authorisation also encompasses illustrations of all kinds which are contained within literary or musical works. Copies may only be produced of works to which persons with a visual impairment or reading disability have lawful access.

(2) For the purposes of this Act, ʻpersons with a visual impairment or reading disabilityʼ means persons who are unable, as a result of a physical or mental impairment or perceptual disability, to read literary works, even with the assistance of a visual aid, to substantially the same degree as persons without such an impairment or disability.

Section 45c Authorised entities; remuneration; authorisation to issue statutory instruments

(1) Authorised entities may reproduce published literary works which are available in text or audio format as well as graphic recordings of musical works in order that they may be converted into an accessible format for the exclusive use of persons with a visual impairment or reading disability. Section 45b (1) sentence 2 and 3 applies accordingly.

(2) Authorised entities may lend out and disseminate copies produced in accordance with subsection (1) to persons with a visual impairment or reading disability or to other authorised entities and may use them to make the works available to the public or for other communication to the public.

(3) ‘Authorised entity’ means any establishment providing education or accessible reading or information access on a non-profit basis to people with a visual impairment or reading disability.

(4) Authors are entitled to payment of equitable remuneration for uses in accordance with subsections (1) and (2). Claims may only be asserted by a collecting society.

(5) The Federal Ministry of Justice and Consumer Protection is authorised to regulate the following by statutory instrument not requiring the approval of the Bundesrat concerning authorised entities:

1.  their duties in relation to uses pursuant to subsections (1) and (2),

2.  their duty to notify the German Patent and Trade Mark Office of their status as an authorised entity,

3.  oversight by the German Patent and Trade Mark Office concerning compliance with the duties under no. 1, with the proviso under section 85 (1) and (3) and section 89 of the Collecting Societies Act ( Verwertungsgesellschaftengesetz ).

Section 45d Use permitted by law and contractually authorised use

The rightholder may not invoke agreements which restrict or prohibit uses permitted in accordance with sections 45b and 45c and such restriction or prohibition is to the detriment of the persons entitled to such use.

Section 46 Collections for religious use

(1) Following publication, it is permitted to reproduce, distribute and make available to the public parts of works, small-scale literary works and musical works, individual artistic works or individual photographs which are incorporated in a collection combining the works of a considerable number of authors and are intended, by their nature, exclusively for use during religious ceremonies. The purpose for which the collection is to be used must be clearly stated on the copies or when making them available to the public.

(2) (repealed)

(3) Work on reproducing the work or making the work available to the public may only begin after the intention to exercise the entitlement under subsection (1) has been communicated by registered letter to the author or, if his or her place of residence or whereabouts are unknown, the holder of the exclusive right of use and two weeks have elapsed since the letter was sent. If the place of residence or whereabouts of the holder of the exclusive right of use are also not known, notification may be effected by publication in the Federal Gazette.

(4) The author is to be paid equitable remuneration for the exploitation permitted in accordance with this provision.

(5) The author may forbid the exploitation permitted in accordance with this provision if the work no longer reflects his or her conviction and the author can therefore no longer be reasonably expected to agree to the exploitation of the work and has for that reason revoked any existing right of use (section 42). The provisions of section 136 (1) and (2) apply accordingly.

Section 47 School broadcasts

(1) Schools and teacher training and further training institutions may make individual copies of works to be used as part of a school broadcast by transferring the works to video or audio recording mediums. The same applies to youth welfare institutions and federal state image archives or comparable institutions under public ownership.

(2) The video or audio recording mediums may only be used for teaching purposes. They must be deleted at the latest at the end of the academic year following the transmission of the school broadcast, unless the author has been paid equitable remuneration.

Section 48 Public speeches

(1) It is permitted

1.  to reproduce and distribute speeches relating to current affairs in newspapers, periodicals or other printed matter or other data carriers which mainly record current events if the speeches were made at public gatherings or published by means of communication to the public within the meaning of section 19a or section 20, and to communicate such speeches to the public,

2.  to reproduce, distribute and communicate to the public a speech delivered during public negotiations before state, local authority or church organs.

(2) It is, however, not permitted to reproduce and distribute the speeches designated in subsection (1) no. 2 in the form of a collection predominantly containing speeches by the same author.

Section 49 Newspaper articles and broadcast commentaries

(1) It is permitted to reproduce and distribute individual broadcast commentaries and individual articles, as well as illustrations published in connection therewith, from newspapers and other information sheets devoted solely to current affairs in other newspapers or information sheets of this kind, and it is permitted to communicate such commentaries, articles and illustrations to the public if they concern current political, economic or religious issues and do not contain a statement reserving rights. The author is to be paid equitable remuneration for the reproduction, distribution and communication to the public, unless the reproduction, distribution and communication to the public is of short extracts of several commentaries or articles in the form of an overview. Claims may be asserted only through a collecting society.

(2) It is permitted, without limitation, to reproduce, distribute and communicate to the public miscellaneous news items of a factual nature and news of the day which has been published via the press or broadcasting; protection granted under other statutory provisions remains unaffected thereby.

Section 50 Reporting on current events

For the purposes of reporting on current events by broadcasting or similar technical means in newspapers, periodicals and other printed matter or other data carriers which are mainly devoted to current events, as well as on film, it is permitted to reproduce, distribute and communicate to the public works which become perceivable in the course of these events, to the extent justified by the purpose of the report.

Section 51 Quotations

It is permitted to reproduce, distribute and communicate to the public a published work for the purpose of quotation insofar as such use is justified to that extent by the particular purpose. This is, in particular, permitted where

1.  subsequent to publication individual works are included in an independent scientific work for the purpose of explaining its content,

2.  subsequent to publication passages from a work are quoted in an independent literary work,

3.  individual passages from a released musical work are quoted in an independent musical work.

The authorisation to quote under sentences 1 and 2 includes the use of an illustration or other reproduction of the cited work, even if this is itself protected by copyright or a related right.

Section 51a Caricature, parody and pastiche

It is permitted to reproduce, distribute and communicate to the public a published work for the purpose of caricature, parody and pastiche. The authorisation under sentence 1 includes the use of an illustration or other reproduction of the work used even if this is itself protected by copyright or a related right.

Section 52 Communication to public

(1) It is permitted to communicate to the public a published work if that communication serves a non-profit-making purpose for the organiser of an event, if participants are admitted free of charge and, in the case of a lecture or performance of a work, if none of the performers (section 73) is paid special remuneration. Equitable remuneration is to be paid for the communication. The obligation to pay remuneration does not apply to events organised by the youth welfare service, the social welfare service, the geriatric and welfare service, and the prisoners’ welfare service insofar as they are only available to a specifically delimited circle of persons on account of their social or educational purpose. This does not apply where the event serves the profit-making purpose of a third party; in such cases the third party is required to pay the remuneration.

(2) It is also permitted to communicate to the public a published work in a religious service or at a religious celebration organised by a church or religious community. However, the organiser is to pay the author equitable remuneration.

(3) Public stage performances, the making available to the public and broadcasting of a work, and public screenings of a cinematographic work are always only permitted with the rightholder’s consent.

Sections 52a and 52b (repealed)

Section 53 Reproduction for private and other personal uses

(1) It is permitted for a natural person to make single copies of a work for private use on any medium, insofar as they neither directly nor indirectly serve commercial purposes, as long as no obviously unlawfully produced model or a model which has been unlawfully made available to the public is used for the copying. A person authorised to make copies may also have another person make such copies if no payment is received therefor, or if it involves copies on paper or a similar medium which have been effected by the use of any kind of photomechanical technique or by some other process having a similar effect.

(2) It is permitted to make single copies of a work or to have these made

1.  (repealed)

2.  for inclusion in a personal archive if and insofar as the reproduction is necessary for this purpose and one’s own personal copy of the work is used as the model from which the copy is made,

3.  for one’s own personal information concerning current affairs if the work was broadcast,

4.  for other personal use

a)  in the case of small parts of a released work or individual articles being released in newspapers or periodicals,

b)  in the case of a work which has been out of print for at least two years.

This only applies if, in addition,

1.  the reproduction is effected on paper or a similar medium by the use of any kind of photographic technique or by some other process having a similar effect or

2.  the use is exclusively analogue.

(3) (repealed)

(4) The reproduction of

a)  graphic recordings of musical works,

b)  a book or periodical, in the case of an essentially complete reproduction,

insofar as this does not occur by means of manual transcription, is only ever permitted with the rightholder’s consent or under the conditions of subsection (2) sentence 1 no. 2 or for personal use if the work has been out of print for at least two years.

(5) Subsections (1) and (2) sentence 1 nos. 2 to 4 do not apply to database works the elements of which are individually accessible by electronic means.

(6) The copies may neither be distributed nor communicated to the public. It is, however, permitted to lend lawfully produced copies of newspapers and out-of-commerce works, as well as those works in which no damaged or missing parts have been replaced by copies.

(7) The recording of public lectures, productions or performances of a work on video or audio recording mediums, the realisation of plans and drafts of artistic works and the reconstruction of architectural works are only ever permitted with the rightholder’s consent.

Section 53a (repealed)

Subdivision 2 Remuneration for reproductions permitted under section 53 and sections 60a to 60f

Section 54 Obligation to pay remuneration

(1) Where, given the nature of a work, it is probable that the work will be reproduced and such reproduction is permitted under section 53 (1) or (2) or sections 60a to 60f, the author of the work is entitled to payment of equitable remuneration from the manufacturer of appliances and of storage mediums, where the type of appliance or storage medium is used alone or together with other appliances, storage mediums or accessories, to make such reproductions.

(2) The claim under subsection (1) does not apply where, in the light of the circumstances, it can be expected that the appliances or storage mediums will not be used for reproductions within the territory to which this Act applies.

Section 54a Amount of remuneration

(1) The amount of remuneration is determined by the extent to which the appliances and storage mediums are actually used as types for reproductions pursuant to section 53 (1) or (2) or sections 60a to 60f. Account is thereby to be taken of the extent to which technical protection measures pursuant to section 95a are used in respect of the works concerned.

(2) Remuneration in respect of appliances is to be set so as to be altogether equitable also in relation to the obligation to pay remuneration for storage mediums contained in such appliances or for other appliances or storage mediums functioning together with them.

(3) In determining the amount of remuneration, account is to be taken of such properties of the appliances and storage mediums as are relevant to use, in particular the capacity of appliances, the storage capacity of storage mediums and the extent to which they are rewritable.

(4) The remuneration may not have an inequitable effect on the manufacturers of appliances and storage mediums; its relationship to the price level of the appliance or of the storage medium must be economically equitable.

Section 54b Trader’s or importer’s obligation to pay remuneration

(1) Together with the manufacturer, any person who, on a commercial scale, imports or re-imports the appliances or storage mediums into the territory to which this Act applies or any person who trades in them bears liability as joint and several debtor.

(2) The importer is the person who introduces the appliances or storage mediums, or who causes them to be introduced, into the territory to which this Act applies. Where importation is based on a contract with a non-resident, the importer is only the contracting party residing in the territory to which this Act applies as long as that importer is acting on a commercial scale. Any person acting only as forwarding agent, carrier or in a similar function in the introduction of the goods is not deemed to be the importer. Any person who introduces items from third countries into a free zone or a free warehouse pursuant to Article 166 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ L 302, 19.10.1992, p. 1) is deemed to be the importer only if the items are used in that area or if they are released for free circulation for customs purposes.

(3) There is no obligation incumbent on the trader to pay remuneration

1.  if a person obliged to pay the remuneration from whom the trader obtains the appliances or storage mediums is bound by an inclusive contract concerning the remuneration or

2.  if the trader notifies the receiving office pursuant to section 54h (3) in writing of the nature and quantity of the appliances and storage mediums received and of the source of supply by 10 January and 10 July for each preceding six months of a calendar year.

Section 54c Obligation incumbent on operator of photocopiers to pay remuneration

(1) Where appliances of the type referred to in section 54 (1), being appliances for reproduction by means of photocopying or by some other process having a similar effect, are operated in schools, universities, vocational training institutions or other educational and further education institutions, research institutions, public libraries, in non-commercial archives or institutions in the field of cinematic or audio heritage, or in non-commercial publicly accessible museums or in institutions which keep appliances available for making photocopies in return for payment, the author is also entitled to payment of equitable remuneration from the operator of the appliance.

(2) The total amount of remuneration owed by the operator is calculated in accordance with the type and extent of the use of the appliance which is likely in the circumstances, in particular its location and the usual use thereof.

Section 54d Obligation to make reference

Insofar as there is an obligation under section 14 (2) sentence 1 no. 2 sentence 2 of the Turnover Tax Act ( Umsatzsteuergesetz ) to submit an invoice, reference is to be made, in invoices on the sale or other putting into circulation of the appliances or storage mediums referred to in section 54 (1), to the remuneration due in respect of the appliance or storage medium.

Section 54e Obligation to report

(1) Any person who, on a commercial scale, imports or re-imports appliances or storage mediums into the territory to which this Act applies is obliged, vis-à-vis the author, to report to the receiving office designated in section 54h (3) in writing the nature and quantity of the imported items, on a monthly basis by the 10th day after the end of each calendar month.

(2) Where the person obliged to make such report does not meet this obligation, or only does so incompletely or otherwise incorrectly, twice the rate of remuneration may be demanded.

Section 54f Obligation to provide information

(1) The author may require information from the person obliged to pay remuneration pursuant to section 54 or section 54b as to the nature and quantity of appliances and storage mediums sold or otherwise put into circulation within the territory to which this Act applies. The trader’s obligation to provide information also extends to naming sources of supply; it also subsists in the case of section 54b (3) no. 1. Section 26 (7) applies accordingly.

(2) The author may require such information from the operator of an appliance in an institution within the meaning of section 54c (1) as is necessary to assess the amount of the remuneration.

(3) Where the person obliged to pay remuneration does not meet this obligation, or only does so incompletely or otherwise incorrectly, twice the rate of remuneration may be demanded.

Section 54g Inspection

Insofar as is necessary to assess the remuneration owed by the operator pursuant to section 54c, the author may demand permission to enter, during normal business hours, the operational and business premises of an operator who keeps appliances available for the making of photocopies in return for payment. The inspection must be carried out in such a manner that avoidable interruptions of operations do not occur.

Section 54h Collecting societies; handling of reports

(1) Claims under sections 54 to 54c, section 54e (2) and sections 54f and 54g may be asserted only through a collecting society.

(2) Each rightholder is entitled to an equitable share of the remuneration paid pursuant to sections 54 to 54c. Insofar as works are protected by technical measures pursuant to section 95a, they are not taken into account when income is distributed.

(3) As regards the reports to be made pursuant to section 54b (3) and section 54e, the collecting societies are to designate to the German Patent and Trade Mark Office a joint receiving office. The German Patent and Trade Mark Office announces the joint receiving office in the Federal Gazette.

(4) The German Patent and Trade Mark Office may publish specimen reports for the reports to be made pursuant to section 54b (3) no. 2 and section 54e in the Federal Gazette. If specimen reports are published, their use is compulsory.

(5) The collecting societies and the receiving office may only use the information received pursuant to section 54b (3) no. 2 and sections 54e and 54f for the purpose of asserting claims under subsection (1).

Subdivision 3 Other uses permitted by law

Section 55 Reproduction by broadcasting organisations

(1) A broadcasting organisation which is authorised to broadcast a work is permitted to transfer the work, by its own means, to video or audio recording mediums in order to use them once each for the purposes of broadcasting via each of its transmitters or relay stations. The video or audio recording mediums are to be deleted at the latest one month after the work is first broadcast.

(2) Video or audio recordings of an exceptional documentary value need not be deleted if they are to be included in an official archive. The author must be notified immediately of their inclusion in the archive.

Section 55a Use of database work

The adaptation or reproduction of a database work is permitted for the owner of a copy of the database work which was put into circulation by sale with the author’s consent, that person who is otherwise authorised to use the database work or that person who is given access to the database work on the basis of a contract concluded with the author or, with the author’s consent, with a third party if and insofar as the adaptation or reproduction is necessary to gain access to the elements of the database work and for its customary use. If, on the basis of the contract in accordance with sentence 1, access is given only to a part of the database work, only the adaptation and reproduction of that part is permitted. Any contractual agreements to the contrary are null and void.

Section 56 Reproduction and communication to public in commercial enterprises

(1) In commercial enterprises which distribute appliances for the making or communication of video or audio recordings, for the reception of broadcasts, or for electronic data processing, or which repair them, works may be transferred onto video or audio mediums, or onto data carriers, may be made perceivable to the public using video or audio recordings, or data carriers, broadcasts may be made perceivable to the public and works may be made available to the public where it is necessary to demonstrate such appliances to customers or to repair them.

(2) Video or audio recordings made or data recorded on data carriers pursuant to subsection (1) must be deleted immediately.

Section 57 Incidental works

It is permitted to reproduce, distribute and communicate to the public works if they are deemed to be works incidental to the actual subject matter being reproduced, distributed or communicated to the public.

Section 58 Advertising exhibition and public sale of works

It is permitted for an organiser, for advertising purposes, to reproduce, distribute and make available to the public works as referred to in section 2 (1) nos. 4 to 6 which are exhibited in public or intended for public exhibition or public sale, to the extent necessary to promote the event.

Section 59 Works in public places

(1) It is permitted to reproduce, distribute and make available to the public works located permanently on public paths, roads or open spaces. In the case of buildings, this authorisation only extends to the façade.

(2) The reproductions may not be carried out on a building.

Section 60 Portraits

(1) Reproduction and the distribution without payment and not for commercial purposes of a portrait by the commissioner of the portrait or his or her successor in title or, in the case of a portrait created on commission, by the person portrayed or, after his or her death, by that person’s next of kin or a third party acting on behalf of one of those persons are permitted. If the portrait is an artistic work, exploitation is only permitted by photography.

(2) ʻNext of kinʼ within the meaning of subsection (1) sentence 1 means the spouse or life partner and children or, if there is neither a spouse nor a life partner nor any children, the parents.

Subdivision 4 Uses permitted by law for teaching, science and institutions

Section 60a Teaching in educational establishments

(1) For the purpose of illustration in teaching in educational establishments, up to 15 per cent of a published work may be reproduced, distributed, made available to the public or otherwise communicated to the public on a non-commercial basis

1.  for teachers and participants at the respective event,

2.  for teachers and examiners at the same educational establishment and

3.  for third persons insofar as this serves the presentation of lessons or lectures or the results of tuition or training or learning outcomes at the educational establishment.

(2) In derogation from subsection (1), full use may be made of illustrations, individual articles from the same professional or scientific journal, other small-scale works and out-of-commerce works.

(3) Subsections (1) and (2) do not authorise the following uses:

1.  reproduction of a work by means of recording onto video or audio recording mediums or communication to the public of a work whilst it is being publicly recited, performed or presented,

2.  reproduction, distribution and communication to the public of a work in schools which is exclusively suitable, intended and labelled for teaching in schools and

3.  reproduction of graphic recordings of musical works to the extent that such reproduction is not required for making content available to the public in accordance with subsections (1) or (2).

Sentence 1 only applies where licences for such uses are easily available and traceable, they meet the needs and specificities of educational establishments and permit uses in accordance with sentence 1 nos. 1 to 3.

(3a) Where works are used in secure electronic environments for the purposes referred to in subsection (1) no. 1 and no. 2 and subsection (2) in Member States of the European Union and Contracting Parties of the Agreement on the European Economic Area, such use is deemed only to have been effected in the Member State or Contracting Party in which the educational establishment is domiciled.

(4) ʻEducational establishmentʼ means early childhood educational establishments, schools, universities, vocational schools, and other training and further education institutions.

Section 60b Media collections for teaching

(1) Producers of media collections for teaching may reproduce, distribute or make available to the public up to 10 per cent of a published work for such collections.

(2) Section 60a (2) and (3) sentence 1 applies accordingly.

(3) For the purposes of this Act, ʻmedia collections for teachingʼ means collections which bring together a significant number of authors and which are suitable, intended and labelled accordingly for the exclusive purpose of non-commercial illustration in teaching in educational establishments (section 60a).

Section 60c Scientific research

(1) Up to 15 per cent of a work may be reproduced, distributed and made available to the public for the purpose of non-commercial scientific research

1.  for a specifically delimited circle of persons for their personal scientific research and

2.  for individual third persons insofar as this serves the monitoring of the quality of scientific research.

(2) Up to 75 per cent of a work may be reproduced for personal scientific research.

(3) In derogation from subsections (1) and (2), full use may be made of illustrations, individual articles from the same professional or scientific journal, other small-scale works and out-of-commerce works.

(4) Subsections (1) to (3) do not authorise the recording of the public recitation, performance or presentation of a work onto a video or audio recording medium and the subsequent making available to the public of that recording.

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. ʻResearch organisationsʼ means universities, research institutes and other establishments conducting scientific research if they

1.  pursue non-commercial purposes,

2.  reinvest all their profits in scientific research or

3.  act in the public interest based on a state-approved mandate.

The authorisation under sentence 1 does not extend to research organisations cooperating with a private enterprise which exerts a certain degree of influence on the research organisation and has preferential access to the findings of its scientific research.

(3) The following are, further, authorised to make reproductions:

1.  libraries and museums, insofar as they are accessible to the public, and archives or institutions in the field of cinematic or audio heritage (cultural heritage institutions),

2.  individual researchers, insofar as they pursue non-commercial purposes.

(4) Those authorised in accordance with subsections (2) and (3) and pursuing non-commercial purposes may make reproductions made pursuant to subsection (1) available to the following persons:

1.  a specifically delimited circle of persons for their joint scientific research and

2.  individual third persons for the purpose of monitoring the quality of the scientific research.

The making available to the public must be terminated as soon as the joint scientific research or the monitoring of the quality of the scientific research has been concluded,.

(5) Those authorised under subsections (2) and (3) no. 1 may retain reproductions made pursuant to subsection (1), thereby taking appropriate security measures to prevent unauthorised use, for as long as they are needed for the purposes of the scientific research or the monitoring of the quality of the scientific findings.

(6) Rightholders are authorised to take necessary measures to prevent the security and integrity of their networks and databases being put at risk on account of reproductions made in accordance with subsection (1).

Section 60e Libraries

(1) Publicly accessible libraries which neither directly nor indirectly pursue commercial purposes (libraries) may reproduce a work from their holdings or exhibitions, or have such a work reproduced, for the purpose of making available, indexing, cataloguing, preservation and restoration, including more than once and with technically necessary alterations.

(2) For restoration purposes, libraries may distribute reproductions of a work from their holdings to other libraries or to institutions as referred to in section 60f. They may lend restored works as well as copies of newspapers, out-of-commerce works or damaged works from their holdings.

(3) Libraries may distribute reproductions of a work as referred to in section 2 (1) nos. 4 to 7 insofar as this is done in connection with their public exhibitions or with the documentation of their holdings.

(4) Libraries may make a work from their holdings available to their users for personal research or private studies at terminals on their premises. They may enable users, for non-commercial purposes, to reproduce up to 10 per cent of a work per session and to make reproductions of individual illustrations, articles from the same professional or scientific journal, other small-scale works and out-of-commerce works.

(5) In response to individual orders, libraries may, for non-commercial purposes, transmit reproductions of up to 10 per cent of a published work to users, as well as reproductions of individual articles which have appeared in professional or scientific journals.

(6) Subsection (1) applies accordingly to publicly accessible libraries pursuing commercial purposes as regards reproductions made for the purpose of the preservation of a work.

Section 60f Archives, museums and educational establishments

(1) Section 60e applies accordingly, with the exception of subsections (5) and (6), to archives, institutions in the field of cinematic and audio heritage, as well as to publicly accessible museums and educational establishments (section 60a (4)) which neither directly nor indirectly pursue commercial purposes.

(2) Archives which also act in the public interest may reproduce a work or have a work reproduced in order to include it as archival material in their holdings. The agency submitting the work must without delay delete any reproductions in its possession.

(3) Section 60e (1) applies accordingly to archives, institutions in the field of cinematic and audio heritage and publicly accessible museums pursuing commercial purposes as regards reproductions made for the purpose of the preservation of a work.

Section 60g Use permitted by law and contractually authorised use

(1) Rightholders may not invoke agreements which restrict or prohibit uses permitted under sections 60a to 60f and such restriction or prohibition is to the detriment of the persons entitled to such use.

(2) In derogation from subsection (1), agreements which deal exclusively with the making available of content at terminals in accordance with section 60e (4) and section 60f (1) or with the transmission of reproductions in response to individual orders in accordance with section 60e (5) have priority over lawful permission.

Section 60h Equitable remuneration for uses permitted by law

(1) Authors are entitled to equitable remuneration for uses in accordance with this Subdivision. Reproductions are to be remunerated in accordance with sections 54 to 54c.

(2) In derogation from subsection (1), the following uses are not subject to remuneration:

1.  communication to the public for the benefit of members of educational establishments and their families in accordance with section 60a (1) nos. 1 and 3 and section 60a (2), with the exception of making the content available to the public,

2.  reproductions for the purpose of preservation in accordance with section 60e (1) and (6) and section 60f (1) and (3), and for the purpose of indexing, cataloguing and restoration in accordance with section 60e (1) and section 60f (1).

3.  reproductions made in the context of text and data mining for the purposes of scientific research in accordance with section 60d (1).

(3) Payment of flat-rate remuneration is sufficient, as is the usage-related calculation of the equitable remuneration based on a representative sample of usage. This does not apply to uses pursuant to sections 60b and 60e (5).

(4) Claims to equitable remuneration may only be asserted through a collecting society.

(5) If the user is acting on behalf of an institution, only the latter is subject to pay remuneration. As regards reproductions which, pursuant to subsection (1) sentence 2, are remunerated in accordance with sections 54 to 54c, only these provisions apply.

Subdivision 5 Special uses of orphan works permitted by law

Section 61 Orphan works

(1) It is permitted to reproduce and make available to the public orphan works in accordance with the provisions of subsections (3) to (5).

(2) For the purposes of this Act, ʻorphan worksʼ means

1.   works and other protected subject matter in books, trade journals, newspapers, magazines or other writings,

2.   cinematographic works, as well as video mediums and audio and video mediums on which cinematographic works have been recorded and

3.   audio mediums

in the collections (holdings) of publicly accessible libraries, educational institutions, museums, archives and institutions in the field of cinematic and audio heritage, if the holdings have already been published, the rightholder of which could not be established or traced despite a diligent search.

(3) Where an item in the holdings has several rightholders, its content may also be reproduced and made available to the public if, despite a diligent search, it was not possible to establish or trace all the rightholders but permission to use the item in the holdings has been obtained from one of the known rightholders.

(4) Holdings which have not been published or broadcast may also be used by the institution referred to in subsection (2) if they have already been made available to the public with the rightholder’s permission and, therefore, it can be assumed in good faith that the rightholder would agree to the use in accordance with subsection (1).

(5) Reproduction and making available to the public by the institutions as referred to in subsection (2) are permitted only if the institutions are acting to fulfil their tasks in the public interest, in particular if they preserve and restore holdings and make them accessible in their collections, insofar as this serves cultural and educational purposes. The institutions may charge a fee for providing access to the orphan works which covers the costs of the digitisation and making available to the public.

Section 61a Diligent search and documentation obligations

(1) A diligent search for the rightholder pursuant to section 61 (2) must be carried out for each item in the holdings and for other protected subject matter they contain; at the very least the sources set out in the Annex must be consulted. A diligent search is to be carried out in the Member State of the European Union in which the work was first published. Where there are indications that relevant information concerning rightholders may be found in other states, available sources of information in these other states must also be consulted. The institution using the sources may also commission a third party with carrying out the diligent search.

(2) In the case of cinematographic works, as well as video mediums and audio and video mediums on which cinematographic works have been recorded, the diligent search is to be carried out in the Member State of the European Union in which the producer has a main establishment or habitual residence.

(3) In the case of the holdings referred to in section 61 (4), a diligent search is to be carried out in the Member State of the European Union in which the institution which made the item of the holdings available to the public with the rightholder’s permission has its principal place of business.

(4) The institution using the work documents its diligent search and forwards the following information to the German Patent and Trade Mark Office:

1.   the exact description of the item in the holdings which, based on the outcome of the diligent search, has been orphaned,

2.   the type and nature of the institution’s use of the orphan work,

3.   any change in the status of a used orphan work pursuant to section 61b,

4.   the institution’s contact details, such as name, address, possibly telephone number, fax number and email address.

The German Patent and Trade Mark Office without delay forwards this information to the Office for Harmonisation in the Internal Market (Trade Marks and Designs).

(5) No diligent search need be carried out in the case of holdings which have already been recorded as orphaned in the database of the Office for Harmonisation of the Internal Market (Trade Marks and Designs).

Section 61b Termination of use and obligation to pay remuneration

Where a rightholder of an item in holdings is subsequently established or traced, the institution using the item is required to cease the acts of use without delay as soon as it learns thereof. The rightholder is entitled to payment of equitable remuneration for the use already made against the institution using it.

Section 61c Use of orphan works by public broadcasting organisations

The reproduction and making available to the public of

1.   cinematographic works, as well as video mediums and video and audio mediums on which cinematographic works have been recorded and

2.   audio mediums

which were produced before 1 January 2003 by public broadcasting organisations and which are in their collection are also permitted by public broadcasting organisations under the conditions of section 61 (2) to (5). Sections 61a and 61b apply accordingly.

Subdivision 5a Special uses of unavailable works permitted by law

Section 61d Unavailable works

(1) Cultural heritage institutions (section 60d) are permitted to reproduce unavailable works (section 52b of the Collecting Societies Act) in their holdings, or to have such unavailable works reproduced, and to make them available to the public. This only applies in cases where there is no collecting society which is exercising these rights for the relevant types of works and which is thus representative (section 51b of the Collecting Societies Act). Uses in accordance with sentence 1 are only permitted for non-commercial purposes. The making available to the public is only permitted on non-commercial websites.

(2) Rightholder may object at any time vis-à-vis the European Union Intellectual Property Office to the use in accordance with sentence 1.

(3) Throughout the entire period of use, the cultural heritage institution provides information on the European Union Intellectual Property Office’s online portal about the works concerned, their use and the right of objection. The making available to the public may only commence if the rightholder has not objected to the use within six months after the information referred to in sentence 1 is first published.

(4) Use in accordance with subsection (1) in Member States of the European Union and Contracting Parties of the Agreement on the European Economic Area is deemed only to be effected in the Member State or Contracting Party in which the cultural heritage institution is domiciled. Subsection (1) does not apply to series of works which predominantly contain works from third countries (section 52c of the Collecting Societies Act).

Section 61e Authorisation to issue statutory instruments

The Federal Ministry of Justice and Consumer Protection is authorised to regulate, by statutory instrument not requiring the approval of the Bundesrat, further details concerning the following:

1.  the exercise and legal consequences of the rightholder’s right of objection (section 61d (2)),

2.  information requirements (section 61d (3)).

Section 61f Information about unavailable works

Collecting societies, cultural heritage institutions and the European Union Intellectual Property Office may reproduce works and make them available to the public insofar as this is necessary to be able to provide information on the Office’s online portal about the fact that the collecting society grants rights in that work pursuant to section 52 of the Collecting Societies Act or a cultural heritage institution uses the work pursuant to section 61d.

Section 61g Use permitted by law and contractually authorised use

The rightholder may not invoke agreements which restrict or prohibit uses permitted under sections 61d and 61f to the detriment of the persons entitled to such use.

Subdivision 6 Common provisions for uses permitted by law

Section 62 Prohibition of alteration

(1) Where the use of a work is permitted under the provisions of this Division, alterations to the work are not permitted. Section 39 applies accordingly.

(2) Where necessitated on account of the purpose of the use, translations and such alterations to the work are permitted as only constitute extracts or transpositions into another key or pitch.

(3) In the case of artistic works and photographic works, such rendering of the work into another size and such alterations are permitted as result from the procedure used for its reproduction.

(4) In the case of uses pursuant to sections 45a to 45c, those alterations are permitted as are necessary to be able to produce an accessible format.

(4a) Amendments to the work are permitted to the extent necessary for the purpose of the use in accordance with section 51a.

(5) In the case of collections for religious use (section 46), in the case of uses for the purpose of teaching in educational establishments (section 60a) and in the case of media collections for teaching (section 60b), such alterations of literary works are also permitted as are necessary for religious uses and for the purpose of illustration in teaching in educational establishments. However, these alterations require the author’s consent, after his or her death the consent of the author’s successor in title (section 30) if such person is the author’s next of kin (section 60 (2)) or has acquired the copyright on account of the author’s testamentary disposition. Consent is deemed to have been given if the author or the successor in title does not object within one month after being notified of the intended alteration and attention has been drawn in the notification of the alteration to this legal consequence. No consent is required in the case of uses for teaching in educational establishments (section 60a) and media collections for teaching (section 60b) if the alterations are clearly and visibly indicated.

Section 63 Acknowledgement of source

(1) If a work or part of a work is reproduced or distributed pursuant to section 45 (1), sections 45a to 48, 50, 51, 58, 59, sections 60a to 60c, 61, 61c, 61d and 61f, the source must in all cases be clearly indicated. In the case of the reproduction or distribution of entire literary works or entire musical works, the publishing house which released the work is to be indicated in addition to the author and it is also to be clearly indicated whether the work has been abridged or other alterations have been made. The obligation to indicate the source does not apply where the source is neither named on the work used or when the work used is communicated nor otherwise known to the person authorised to make the reproduction or distribution or, in the case of section 60a or of section 60b, the examination purposes necessitate dispensing with indicating the source.

(2) Where, under the provisions of this section, it is permitted to communicate a work to the public, the source is to be clearly indicated if and insofar as this is required by customary practice. In cases of communication to the public pursuant to sections 46, 48, 51, sections 60a to 60d, 61, 61c, 61d and 61f, as well as other digital uses pursuant to section 60a, the source, including the author’s name, must in all cases be indicated, unless this is not possible.

(3) If an article in a newspaper or in another information leaflet is printed in accordance with section 49 (1) in another newspaper or in another information leaflet or is broadcast, the newspaper or the information leaflet from which the article was taken is to be cited along with the author designated in the source used; if a different newspaper or a different information leaflet is cited there, that newspaper or information leaflet is to be indicated. If a broadcast commentary is printed in a newspaper or in another information leaflet or is broadcast pursuant to section 49 (1), the broadcasting organisation which broadcast the commentary is to be indicated along with the author.

Section 63a Statutory remuneration rights

(1) Statutory remuneration rights as provided in this Division may not be waived by the author in advance. They may be assigned in advance only to a collecting society.

(2) If the author has granted a publisher a right in his or her work, then the publisher is entitled, in relation to that right, to the statutory remuneration rights as provided in this Division. In such cases, statutory remuneration rights may be asserted only by a joint collecting society of authors and publishers.

(3) Subsection (2) applies accordingly to the remuneration right under section 27 (2).

Division 7 Duration of copyright

Section 64 General

Copyright expires 70 years after the author’s death.

Section 65 Joint authors, cinematographic works, musical compositions with text

(1) Where several joint authors hold copyright in a work (section 8), it expires 70 years after the death of the last surviving joint author.

(2) Copyright in cinematographic works and works produced in a manner similar to cinematographic works expires 70 years after the death of the last surviving of the following persons: the principle film director, the author of the screenplay, the author of the dialogues, the composer of music specifically composed for use in the cinematographic work in question.

(3) The term of protection of a musical composition with text expires 70 years after the death of the last surviving of the following persons: the author of the text, the composer of the musical composition, where both contributions were created specifically for the musical composition with text concerned. This applies regardless of whether these persons are cited as joint authors.

Section 66 Anonymous and pseudonymous works

(1) Copyright in anonymous and pseudonymous works expires 70 years after publication. However, it expires 70 years after the creation of the work if the work was not published within this period.

(2) If the author reveals his or her identity within the period designated in subsection (1) sentence 1 or if the pseudonym adopted by the author leaves no doubt as to his or her identity, the term of protection is calculated in accordance with sections 64 and 65. The same applies if an application is made for the author’s real name to be entered in the register of anonymous and pseudonymous works (section 138) within the period designated in subsection (1) sentence 1.

(3) The author, after his or her death the author’s successor in title (section 30) or the executor (section 28 (2)), is authorised to perform the acts as referred to in subsection (2).

Section 67 Serial works

In the case of works published in substantively incomplete parts (instalments), the term of protection in the case referred to in section 66 (1) sentence 1 is calculated separately for each instalment from the time of its publication.

Section 68 Reproductions of works of visual arts in public domain

Reproductions of works of visual arts in the public domain are not protected by related rights under Parts 2 and 3.

Section 69 Calculation of time limits

The periods specified in this Division begin to run at the end of that calendar year in which the event giving rise to them occurs.

Division 8 Special provisions on computer programs

Section 69a Object of protection

(1) For the purposes of this Act, ʻcomputer programsʼ means programs of any form, including drafts and their preparatory design material.

(2) The protection granted applies to the expression, in any form, of a computer program. Ideas and principles which underlie any element of a computer program, including the ideas and principles which underlie its interfaces, are not protected.

(3) Computer programs are protected if they represent individual works in the sense that they are the result of the author’s own intellectual creation. No other criteria, especially qualitative or aesthetic criteria, are to be applied when determining its eligibility for protection.

(4) The provisions applicable to literary works apply to computer programs, unless otherwise provided in this Division.

(5) Sections 32 to 32g, 36 to 36d, 40a and 41 do not apply to computer programs.

Section 69b Authors in employment or service relationships

(1) Where a computer program is created by an employee in the execution of his or her duties or following the instructions of his or her employer, the employer alone is entitled to exercise all economic rights in the computer program, unless otherwise agreed.

(2) Subsection (1) applies accordingly to service relationships.

Section 69c Restricted acts

Rightholders have the exclusive right to perform or authorise the following acts:

1.  the permanent or temporary reproduction, in whole or in part, of a computer program by any means and in any form. Insofar as loading, displaying, running, transmission or storage of the computer program necessitates such reproduction, these actions are subject to authorisation by the rightholder;

2.  the translation, adaptation, arrangement and other modifications of a computer program, as well as the reproduction of the results thereof. The rights of those persons who adapt the program remain unaffected;

3.  any form of distribution of the original of a computer program or of copies thereof, including rental. Where a copy of a computer program is put into circulation with the rightholder’s consent in the area of the European Union or another Contracting Party of the Agreement on the European Economic Area by sale, the right of distribution is exhausted in respect of this copy, with the exception of the rental right;

4.  communication to the public of a computer program, either by wire or wireless means, including making the work available to the public in such a way that it is available to members of the public from places and at times individually chosen by them.

Section 69d Exceptions to restricted acts

(1) Unless otherwise provided by special contractual provisions, the acts referred to in section 69c nos. 1 and 2 do not require authorisation by the rightholder if they are necessary for the use of the computer program in accordance with its intended purpose, including for the correction of errors, by any person authorised to use a copy of the program.

(2) The making of a back-up copy by a person having a right to use the computer program may not be prevented by contract if it is necessary to secure future use. Section 60e (1) and (6) and section 60f (1) and (3) apply to reproductions made for the purpose of preservation.

(3) The person having a right to use a copy of a computer program is entitled, without the rightholder’s authorisation, to observe, study or test the functioning of that program in order to determine the ideas and principles which underlie any element of the program if this occurs whilst performing any acts of loading, displaying, running, transmitting or storing the program to which that person is entitled.

(4) Computer programs may also be used in accordance with section 69c no. 2 to carry out text and data mining pursuant to section 44b.

(5) Section 60a applies to computer programs with the following provisos:

1.  Digital uses are permitted under the responsibility of an educational establishment on its premises, at other locations or in a secure electronic environment.

2.  Computer programs may also be used pursuant to section 69c no. 2.

3.  Computer programs may be used in their entirety.

4.  The use must be justified for the purpose of illustration in teaching in educational establishments.

(6) Section 60d does not apply to computer programs.

(7) Sections 61d to 61f apply to computer programs, with the proviso that they may also be used pursuant to section 69c no. 2.

Section 69e Decompilation

(1) The rightholder’s consent is not required where reproduction of the code or translation of its form within the meaning of section 69c nos. 1 and 2 is indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met:

1.  the acts are performed by the licensee or by another person authorised to use a copy of a program or on their behalf by a person empowered to do so;

2.  the information necessary to achieve interoperability has not previously been made readily available to the persons referred to in no. 1;

3.  the acts are confined to those parts of the original program which are necessary to achieve interoperability.

(2) Information obtained through acts as referred to in subsection (1) may not be

1.  used for purposes other than to achieve the interoperability of the independently created program,

2.  given to third parties, except when necessary for the interoperability of the independently created program,

3.  used for the development, production or marketing of a computer program which is substantially similar in its expression or for any other acts which infringe copyright.

(3) Subsections (1) and (2) are to be interpreted such that their application neither impairs the normal exploitation of the work nor unreasonably impairs the rightholder’s legitimate interests.

Section 69f Infringement of rights; supplementary protective provisions

(1) The rightholder may require of the owner or proprietor that all unlawfully produced or distributed copies or all copies intended for unlawful distribution be destroyed. Section 98 (3) and (4) applies accordingly.

(2) Subsection (1) applies accordingly to means the sole purpose of which is to facilitate the unauthorised removal or circumvention of any technical device which may have been applied to protect the computer program. Sentence 1 does not apply to means which the cultural heritage institution uses to avail itself of the statutory permission under section 61d, including in conjunction with section 69d (7).

(3) In the cases referred to in section 44b, including in conjunction with section 69d (4), in section 60a, including in conjunction with section 69d (5), in section 60e (1) or (6) and section 60f (1) or (3), only section 95b applies accordingly as regards technical mechanisms for protecting programs.

Section 69g Application of other legal provisions; law of contract

(1) The provisions of this Division are without prejudice to the application of other legal provisions concerning computer programs, particularly those concerning the protection of inventions, topographies of semi-conductor products, trade marks and protection against unfair competition, including the protection of business and trade secrets, as well as agreements based on the law of obligations.

(2) Contractual provisions which are contrary to section 69d (2), (3), (5) or (7) or section 69e are null and void.

Part 2 Related rights

Division 1 Protection of certain editions

Section 70 Scientific editions

(1) Editions of works or texts which are not protected by copyright are protected accordingly under the provisions of Part 1 if they represent the result of scientifically organised activity and differ substantially from previously known editions of the works or texts.

(2) The author of the edition is entitled to exercise the right.

(3) The right expires 25 years after publication of the edition, but 25 years after its production if the edition was not released within that period. The period is to be calculated in accordance with section 69.

Section 71 Posthumous works

(1) Anyone who has a previously unreleased work released legally for the first time after the expiry of the copyright or communicates it to the public has the exclusive right to exploit the work. The same applies to unreleased works which were never protected within the territory to which this Act applies but whose author has been dead for more than 70 years. Sections 5 and 10 (1) and sections 15 to 23, 26, 27, 44a to 63 and 88 apply analogously.

(2) The right is transferrable.

(3) The right expires 25 years after the work was released or, if its first communication to the public occurred earlier, 25 years thereafter. The period is to be calculated in accordance with section 69.

Division 2 Protection of photographs

Section 72 Photographs

(1) The provisions of Part 1 applicable to photographic works apply accordingly to photographs and products manufactured in a similar manner to photographs.

(2) The photographer is entitled to exercise the right under subsection (1).

(3) The right under subsection (1) expires 50 years after the photograph was released or, if its communication to the public occurred earlier, 50 years thereafter, although the right already expires 50 years after production if the photograph was not released or legally communicated to the public within this period. The period is to be calculated in accordance with section 69.

Division 3 Protection of performers

Section 73 Performers

For the purposes of this Act, ‛performer’ means a person who performs, sings, acts or in another manner presents a work or an expression of popular art or who participates artistically in such a presentation.

Section 74 Recognition as performer

(1) The performer has the right to be recognised as such in relation to his or her performance. The performer may thereby determine whether and with which name he or she is to be identified.

(2) If a work is performed by several performers together and if identifying each of them individually involves a disproportionate amount of effort, they can only ask to be named as a group of artists. If the group of artists has an elected representative, the latter is the sole representative in respect of third parties. If a group has no such representative, the right may only be asserted by the leader of the group and, if there is none, only by a representative to be elected by the group. The right of a participating performer to be individually named remains unaffected in the case of a special interest.

(3) Section 10 (1) applies accordingly.

Section 75 Derogatory treatment of performance

A performer has the right to prohibit any distortion or other derogatory treatment of his or her performance which is of such a nature as to jeopardise the performer’s standing or reputation. If a work is performed by several performers together, each performer takes the others into due account when exercising the right.

Section 76 Duration of moral rights

The rights referred to in sections 74 and 75 expire upon the performer’s death, but not before 50 years have passed since the performance if the performer has died prior to expiry of that period of time, and not prior to expiry of the period applicable to the exploitation rights under section 82. The period is to be calculated in accordance with section 69. If a work is performed by several performers together, the death of the last of the participating performers is decisive. After the performer’s death, the rights belong to his or her next of kin (section 60 (2)).

Section 77 Recording, reproduction and distribution

(1) Performers have the exclusive right to fix their performance on a video or audio recording medium.

(2) Performers have the exclusive right to reproduce and distribute the video or audio recording medium on which their performance has been fixed. Section 27 applies accordingly.

Section 78 Communication to public

(1) Performers have the exclusive right to

1.  make their performance available to the public (section 19a),

2.  broadcast their performance, unless it has been legally fixed on video or audio recording mediums which have been released or legally made available to the public,

3.  make their performance perceivable to the public by screen, loudspeaker or similar technical devices in a place other than that in which it takes place.

(2) Equitable remuneration is to be paid to performers if

1.  their performance is legally broadcast pursuant to subsection (1) no. 2,

2.  their performance is communicated to the public by means of video or audio recording mediums, or

3.  the broadcast or the communication of their performance which is based on the making available to the public is made perceivable to the public.

(3) Performers may not waive the claims to remuneration under subsection (2) in advance. They may only be assigned in advance to a collecting society.

(4) Section 20b applies accordingly.

Section 79 Rights of use

(1) Performers may transfer their rights and claims under sections 77 and 78. Section 78 (3) and (4) remains unaffected.

(2) Performers may grant to another a right to use their performance in a particular manner or in any manner of use to which they are entitled.

(2a) Sections 31, 32 to 32b, 32d to 40, 41, 42 and 43 apply accordingly to transfers of rights and claims under subsection (1) and to transfers of rights under subsection (2).

(3) Where the producer of an audio medium fails to offer sufficient quantities of the audio medium for sale or to make the audio medium available to the public, the performer may terminate the contract in which he or she granted or transferred rights in the recording of the performance to the producer of the audio medium (transfer agreement). Such termination is admissible

1.   after a period of 50 years following publication of the audio medium or 50 years following the first authorised use of the audio medium for communication to the public if the audio medium was not published and

2.  if, within one year of being notified by the performer of his or her wish to terminate the transfer agreement, the producer of the audio medium does not carry out the two acts of use referred to in sentence 1.

Where the transfer agreement has been terminated, the rights of the producer of the audio medium in the audio medium expire. The performer may not waive the right of termination.

Section 79a Performers’ entitlement to remuneration

(1) Where a performer has granted or transferred rights in a performance to a producer of an audio medium against payment of a one-time fee, the producer of the audio medium is required to pay the performer additional remuneration in the amount of 20 per cent of the income which the producer of the audio medium earns from the reproduction, the sale and the making available to the public of the audio medium containing the performance. Where an audio medium contains the recording of performances by several performers, the amount of the remuneration likewise amounts to a total of 20 per cent of the income. ʻIncomeʼ means the income generated by the producer of the audio medium minus expenses.

(2) The right to remuneration exists for each full year immediately following the 50th year after publication of the audio medium containing the performance or, if it was not published, following the 50th year after its first legal use for communication to the public.

(3) Performers may not waive the entitlement to remuneration under subsection (1). The right to remuneration may only be asserted by a collecting society. It may only be assigned in advance to a collecting society.

(4) The producer of the audio medium is obliged, upon request, to provide a performer with information concerning the income generated and other information required to quantify the entitlement to remuneration under subsection (1).

(5) Where the performer has granted or transferred the rights in a performance to the producer of an audio medium against payment of a recurring fee, the producer of the audio medium may, after expiry of the following periods, deduct neither advances nor contractually specified deductions from the remuneration:

1.   50 years after release of the audio medium containing the performance or

2.   50 years after the first legal use of the audio medium containing the performance for communication to the public if the audio medium was not released.

Section 79b Performers’ remuneration for types of use which become subsequently known

(1) Performers have a right to separate equitable remuneration if their contracting party commences a new type of use of their performance which was agreed but not known at the time the contract was concluded.

(2) Where a performer’s contracting party has transferred the right of use to a third party, that third party is liable for the remuneration upon commencing the new type of use. The contracting party is no longer liable.

(3) There can be no advance waiver of the rights under subsections (1) and (2).

Section 80 Work performed jointly by several performers

(1) If several performers perform a work jointly and their respective contributions cannot be separately exploited, they have the joint right of exploitation. None of the participating performers may unreasonably refuse consent to exploitation of the work. Section 8 (2) sentence 3 and (3) and (4) applies accordingly.

(2) For the purpose of asserting rights and claims under sections 77, 78 and 79 (3), section 74 (2) sentence 2 and 3 applies accordingly.

Section 81 Protection of organisers

If a performer’s performance is organised by an enterprise, the rights under section 77 (1) and (2) sentence 1 and section 78 (1) are enjoyed by the performer as well as by the owner of the enterprise. Section 10 (1), section 31, and sections 33 and 38 apply accordingly.

Section 82 Duration of exploitation rights

(1) Where a performance has been recorded on an audio medium, the performer’s rights of as referred to in sections 77 and 78 expire 70 years after the release of the audio recording or, if its first legal use for communication to the public took place earlier, 70 years after the latter. Where the performance was not recorded on an audio medium, the rights of the performer as referred to in sections 77 and 78 expire 50 years after the release of the recording or, if its first legal use for communication to the public occurred earlier, 50 years thereafter. However, the performer’s rights already expire 50 years after the performance if a recording has not been released or not legally used for communication to the public within that period.

(2) The organiser’s rights as referred to in section 81 expire 25 years after the release of a recording of the performance or, if the first legal use for communication to the public occurred earlier, 25 years thereafter. The rights already expire 25 years after the performance if a recording has not been released or not legally used for communication to the public within that period.

(3) The periods are to be calculated in accordance with section 69.

Section 83 Limitations of exploitation rights

The provisions of Part 1 Division 6 apply accordingly to the rights afforded to the performer under sections 77 and 78 and to the organiser under section 81.

Section 84 (repealed)

Division 4 Protection of producers of audio recordings

Section 85 Exploitation rights

(1) The producer of an audio recording has the exclusive right to reproduce, distribute and to make available to the public that audio recording. If the audio recording was produced in an enterprise, the owner of the enterprise is deemed to be the producer. The right does not accrue on account of a reproduction of an audio recording.

(2) The right is transferable. The producer of an audio recording may grant to another the right to use the audio recording in a particular manner or in any manner of use to which the producer is entitled. Section 31 and sections 33 and 38 apply accordingly.

(3) The right expires 70 years after the release of the audio recording. If the audio recording was not released within 70 years after production but was used legally for communication to the public, the right expires 50 years after the latter. If the audio recording has not been released or legally used for communication to the public during that period, the right expires 50 years after the production of the audio recording. The period is to be calculated in accordance with section 69.

(4) Section 10 (1) and sections 23 and 27 (2) and (3), as well as the provisions of Part 1 Division 6 apply accordingly.

Section 86 Right of participation

If a released audio recording or an audio recording legally made available to the public on which the performer’s performance was fixed is used for communication of the performance to the public, the producer of the audio recording has a right against the performer to an equitable share in the remuneration which the performer receives in accordance with section 78 (2).

Division 5 Protection of broadcasting organisations

Section 87 Broadcasting organisations

(1) Broadcasting organisations have the exclusive right to

1.  rebroadcast their broadcast and make it available to the public,

2.  make video or audio recordings of their broadcast, take photographs of their broadcast, as well as reproduce and distribute the video and audio recordings or photographs, with the exception of the rental right,

3.  make their broadcast perceivable to the public in places which are accessible to the general public only against payment of an entrance fee.

(2) The right is transferable. Broadcasting organisations may grant to another the right to use the broadcast in a particular manner or in any manner of use to which they are entitled. Section 31 and sections 33 and 38 apply accordingly.

(3) The right expires 50 years after the first broadcast. The period is to be calculated in accordance with section 69.

(4) Section 10 (1) and the provisions of Part 1 Division 6, with the exception of section 47 (2) sentence 2 and section 54 (1), apply accordingly.

(5) Broadcasting organisations and retransmission services are mutually obliged to conclude a contract on reasonable conditions concerning retransmission within the meaning of section 20b (1) sentence 1 by means of cable systems or microwave systems, unless there is objectively justifiable reason to refuse to conclude such a contract; the broadcasting organisation’s obligation also applies in respect of the broadcasting rights granted or transferred to it in regard to its own broadcast. Upon the request of the retransmission service or of the broadcasting organisation, the contract is to be concluded with those collecting societies which are entitled to assert a claim in relation to retransmission by means of cable systems or microwave systems, insofar as there is no objective reason to justify the refusal of joint conclusion of the contract. Broadcasting organisations and retransmission services conduct the negotiations they commence regarding other forms of retransmission in good faith.

(6) Subsection (5) applies accordingly to direct injection pursuant to section 20d (1).

Division 6 Protection of makers of database

Section 87a Definitions

(1) For the purposes of this Act, ʻdatabaseʼ means a collection of works, data or other independent elements arranged in a systematic or methodical way and individually accessible by electronic or other means and whose obtaining, verification or presentation requires a substantial qualitative or quantitative investment. A database whose content has been changed in a qualitatively or quantitatively substantial manner is deemed to be a new database insofar as the change requires a substantial qualitative or quantitative investment.

(2) For the purposes of this Act, ʻproducer of a databaseʼ means whoever has made the investment within the meaning of subsection (1).

Section 87b Rights of makers of database

(1) The producer of the database has the exclusive right to reproduce and distribute the database as a whole or a qualitatively or quantitatively substantial part of the database and to make it available to the public. The reproduction, distribution or communication to the public of a qualitatively or quantitatively substantial part of the database is equivalent to the repeated and systematic reproduction, distribution or communication to the public of qualitatively or quantitatively insubstantial parts of the database insofar as these actions run contrary to a normal utilisation of the database or unreasonably impair the legitimate interests of the producer of the database.

(2) Section 10 (1), section 17 (2) and section 27 (2) and (3) apply accordingly.

Section 87c Limitations on rights of makers of database

(1) The reproduction of a qualitatively or quantitatively substantial part of a database is permitted

1.  for private use; this does not apply to a database whose elements are accessible individually by electronic means,

2.  for the purposes of scientific research pursuant to section 60c,

3.  for the purpose of illustration in teaching in educational establishments pursuant to sections 60a and 60b,

4.  for the purposes of text and data mining pursuant to section 44b,

5.  for the purposes of text and data mining for scientific research purposes pursuant to section 60d,

6.  for the purposes of the preservation of a database pursuant to section 60e (1) and (6) and section 60f (1) and (3).

(2) The reproduction, distribution and communication to the public of a qualitatively or quantitatively substantial part of a database is permitted for use in proceedings before a court, an arbitration tribunal or authority, as well as for the purposes of public security.

(3) Sections 45b to 45d and 61d to 61g apply accordingly.

(4) The digital distribution and digital communication to the public of a part of a database which is essential in terms of its nature or extent is permitted for the purposes of illustration in teaching in educational establishments in accordance with section 60a.

(5) Section 62 applies accordingly to the acknowledgement of source.

(6) In the cases referred to in subsection (1) nos. 2, 3, 5 and 6 and subsection (4), section 60g (1) applies accordingly.

Section 87d Duration of rights

The rights of the producer of a database expire 15 years after the publication of the database, but already 15 years after its production if the database was not published within that period. The period is to be calculated in accordance with section 69.

Section 87e Contracts concerning use of database

A contractual agreement by which the owner of a copy of a database which was put into circulation by sale with the consent of the producer of the database, the person who is otherwise authorised to use it or the person who is given access to a database on the basis of a contract concluded with the producer of the database or of a contract concluded with a third party with the consent of the producer of the database undertakes, vis-à-vis the producer of the database, to refrain from reproducing, distributing or communicating to the public quantitatively or qualitatively insubstantial parts of the database is ineffective insofar as these acts neither run counter to any normal utilisation of the database nor unreasonably impair the legitimate interests of the producer of the database.

Division 7 Protection of publishers of press publications

Section 87f Definitions

(1) ʻPress publicationʼ means any collection comprising mainly written works of a journalistic nature which may also contain other works or other subject matter protected under this Act and which

1.  constitutes an individual item within a periodical or regularly updated publication under a single title, such as a newspaper or a general or special interest magazine,

2.  has the purpose of providing the general public with information related to news or other topics and

3.  is published in any media under the initiative, editorial responsibility and control of a publisher of press publications within the meaning of subsection (2).

Periodicals which are published for scientific or academic purposes are not press publications.

(2) ʻPublisher of press publicationsʼ means any person who produces a press publication. If the press publication was produced by an enterprise, the owner of the enterprise is deemed to be the producer.

(3) For the purposes of this Division, ʻinformation society serviceʼ means services within the meaning of Article 1 (1) (b) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ L 241, 17.9.2015, p. 1).

Section 87g Rights of publishers of press publications

(1) Publishers of press publications have the exclusive right to make their press publications available to the public and to reproduce them, in full or in part, for online use by the providers of information society services.

(2) The rights of publishers of press publications do not encompass

1.  the use of the facts contained in the press publication,

2.  the private or non-commercial use of a press publication by individual users,

3.  the creation of hyperlinks to a press publication and

4.  the use of individual words in or very short extracts from a press publication.

(3) The rights of publishers of press publications are transferrable. Sections 31 and 33 apply accordingly.

Section 87h Exercise of rights of publishers of press publications

(1) The rights of publishers of press publications may not be asserted to the detriment of the author or related rightholder whose work or other subject matter protected under this Act is contained in the press publication.

(2) The rights of publishers of press publications may not be asserted for the purpose of

1.  prohibiting third parties the authorised use of such works or such other subject matter protected under this Act which were included in the press publication based on a non-exclusive right of use or

2.  prohibiting third parties the use of works or other subject matter which are no longer protected under this Act which were included in the press publication.

Section 87i Presumption of ownership; uses permitted by law

Section 10 (1) and the provisions of Part 1 Division 6 apply accordingly.

Section 87j Duration of rights of publishers of press publications

The rights of publishers of press publications lapse two years after a press publication is first published. The period is to be calculated in accordance with section 69.

Section 87k Right of participation

(1) Authors and the holders of rights in other subject matter protected under this Act are entitled to an equitable share of the income which publishers of press publications generate from the use of their rights under section 87g (1), at a minimum a share of one third of that income. Derogations from sentence 1 to the detriment of authors and the holders of rights in other subject matter protected under this Act are permitted only by an agreement which is based on a joint remuneration agreement (section 36) or collective agreement.

(2) The claim under subsection (1) may only be asserted by a collecting society.

Part 3 Special provisions on films

Division 1 Cinematographic works

Section 88 Right to make film

(1) If the author permits another person to make a film of his or her work, then, in cases of doubt, this is deemed to involve the granting of the exclusive right to use the work in unaltered form or following adaptation or transformation in the production of a cinematographic work and to use the cinematographic work, as well as translations and other cinematographic adaptations in all manner of uses. Section 31a (1) sentence 3 and 4, and (2) to (4) does not apply.

(2) The entitlements designated in subsection (1) do not entitle the work to be re-filmed. The author is authorised to exploit his or her work cinematically in another manner after the expiry of 10 years following the conclusion of the contract. Derogation from sentence 2 to the detriment of the author is possible only by an agreement which is based on a joint remuneration agreement (section 36) or collective agreement.

Section 89 Rights in cinematographic works

(1) In cases of doubt, anyone who undertakes to participate in the production of a film, in the event that they acquire a copyright in the cinematographic work, grants the producer of the film the exclusive right to use the cinematographic work, as well as translations and other cinematographic adaptations or transformations of the cinematographic work in all manner of uses. Section 31a (1) sentence 3 and 4, and (2) to (4) does not apply.

(2) Where the author of the cinematographic work grants the right of use designated in subsection (1) in advance to a third party, the author nevertheless always retains the right to grant this right to the producer of the film, either in limited or unlimited form.

(3) Copyrights in the works used in the production of the cinematographic work, such as a novel, screenplay and film music, remain unaffected.

(4) Subsections (1) and (2) apply accordingly in relation to the rights of cinematographic exploitation in photographs and photographic works produced in connection with the creation of a cinematographic work.

Section 90 Limitation of rights

(1) The provisions on

1.  the transfer of rights of use (section 34),

2.  the grant of further rights of use (section 35) and

3.  the rights of revocation (sections 41 and 42)

do not apply to the rights under section 88 (1) and section 89 (1). Sentence 1 does not apply to the right to make a film until filming commences. Agreement may be reached with the author in advance to rule out the right of revocation for non-exercise (section 41) up until filming commences for a period of up to five years.

(2) The provision on the right to other exploitation after 10 years in the case of flat-rate remuneration (section 40a) does not apply to the rights under section 88 and section 89 (1).

Section 91 (repealed)

Section 92 Performers

(1) Where a performer concludes a contract with the producer of the film in respect of his or her participation in the production of a cinematographic work, then, in cases of doubt, this is deemed to have included the granting of the right to use the performance in a particular manner of use to which the performer is entitled in accordance with section 77 (1) and (2) sentence 1 and section 78 (1) nos. 1 and 2.

(2) If the performer has assigned in advance a right referred to in subsection (1) or granted to a third party a right of use therein, the performer nevertheless retains the entitlement to assign or grant this right to the producer of the film in respect of exploitation of the cinematographic work.

(3) Section 90 applies accordingly.

Section 93 Protection against distortion; claim to identification

(1) The authors of a cinematographic work and of works used in its production, as well as the holders of related rights who participate in the production of the cinematographic work or whose contributions are used in its production may, in accordance with sections 14 and 75, only prohibit gross distortions or other gross derogatory treatment of their works or their contributions with respect to the production and exploitation of the cinematographic work. Each author or rightholder takes the others and the producer of the film into due account when exercising the right.

(2) It is not necessary to name each individual performer participating in a film if this involves disproportionate effort.

Section 94 Protection of producers of films

(1) The producer of a film has the exclusive right to reproduce, distribute, use for public presentation, broadcasting or making available to the public the video recording or combined video and audio recording. Further, the producer of a film has the right to prohibit any distortion or abridging of the video recording or combined video and audio recording which is capable of prejudicing his or her legitimate interests therein.

(2) The right is transferable. The producer of the film may grant to another the right to use the video recording or combined video and audio recording in a particular manner or in any manner of use to which he or she is entitled. Section 31 and sections 33 and 38 apply accordingly.

(3) The right expires 50 years after the video recording or the video and audio recording is released or, if the first authorised use for communication to the public occurred earlier, 50 years thereafter, but already 50 years after its production if the video recording or the video and audio recording was not released or legally used for communication to the public within this period.

(4) Section 10 (1) and sections 20b and 27 (2) and (3), as well as the provisions of Part 1 Division 6 apply accordingly.

Division 2 Moving pictures

Section 95 Moving pictures

Sections 88, 89 (4), 90, 93 and 94 apply accordingly to sequences of images and sequences of images and sounds which are not protected as cinematographic works.

Part 4 Common provisions on copyright and related rights

Division 1 Supplementary protective provisions

Section 95a Protection of technical measures

(1) Effective technical measures to protect a work protected under this Act or other subject matter protected under this Act may not be circumvented without the rightholder’s consent where the person knows or must have reasonable grounds to know that circumvention is taking place in order to facilitate access to such a work or protected subject matter or its use.

(2) For the purpose of this Act, ʻtechnical measuresʼ means technologies, devices and components which, in the normal course of their operation, are designed to prevent or restrict acts in respect of protected works or other subject matter protected under this Act which are not authorised by the rightholder. Technical measures are deemed effective where the use of a protected work or of other subject matter protected under this Act is controlled by the rightholder by means of access control, a protection process, such as encryption, scrambling or other transformation, or a copy control mechanism which achieves the protection objective.

(3) The production, import, distribution, sale, rental, advertising with a view to selling or rental and possession for commercial purposes of devices, products or components, as well as the rendering of services, are prohibited which

1.  are the subject matter of sales promotions, advertising or marketing with the aim of circumventing effective technical measures or

2.  apart from circumventing effective technical measures only have a restricted economic purpose or benefit, or

3.  are mostly drafted, produced, adjusted or provided in order to facilitate or make easier the circumvention of effective technical measures.

(4) The tasks and powers of public agencies for the purposes of protecting public security or the administration of criminal justice remain unaffected by the prohibitions under subsections (1) and (3) as well as the powers of cultural heritage institutions referred to in section 61d.

Section 95b Measures in respect of limitations

(1) Where a rightholder applies the technical measures in accordance with this Act, that rightholder is obliged to provide to the beneficiaries of the provisions below, if they have legal access to the work or the protected subject matter concerned, the means of benefiting from these provisions to the necessary extent:

1.  section 44 (Text and data mining),

1a.  section 45 (Administration of justice and public security),

2.  section 45a (Persons with disabilities),

3.  section 45b (Persons with visual impairment or reading disability),

4.  section 45c (Authorised entities; remuneration; authorisation to issue statutory instruments),

5.  section 47 (School broadcasts),

6.  section 53 (Reproduction for private and other personal uses)

a)  subsection (1) insofar as copies on paper or a similar medium which have been affected by the use of any kind of photographic technique or by some other process having similar effects are concerned,

b)  (repealed)

c)  subsection (2) sentence 1 no. 2 read in conjunction with sentence 2 no. 1,

d)  subsection (2) sentence 1 nos. 3 and 4, in each case read in conjunction with sentence 2 no. 1,

7.  section 55 (Reproduction by broadcasting organisations),

8.  section 60a (Teaching in educational establishments),

9.  section 60b (Media collections for teaching),

10.  section 60c (Scientific research),

11.  section 60d (Text and data mining for scientific research purposes),

12.  section 60e (Libraries)

a)  subsection (1),

b)  subsection (2),

c)  subsection (3),

d)  subsection (5),

13.  section 60f (Archives, museums and educational establishments).

Agreements which rule out the obligations under sentence 1 are invalid.

(2) Any person who violates the principle provided for under subsection (1) may be pursued by the beneficiary of one of the provisions referred to for this to provide the means required to bring about the respective entitlement. If the means offered is in accordance with an agreement between associations of the rightholders and the beneficiaries of the restriction provision, it is presumed that the means is sufficient.

(3) Where works and other protected subject matter are made available to the public by virtue of section 19a on the basis of a contractual agreement, subsections (1) and (2) only apply to lawfully permitted uses pursuant to the following provisions:

2.  section 45b (Persons with visual impairment or reading disability),

3.  section 45c (Authorised entities; remuneration; authorisation to issue statutory instruments),

4.  section 60a (Teaching in educational establishments), insofar as digital uses under the responsibility of an educational establishment are permitted on its premises or at another location or in a secure electronic environment,

5.  section 60d (Text and data mining for scientific research purposes), insofar as research organisations and cultural heritage institutions are permitted to make reproductions,

6.  section 60e (Libraries), insofar as reproductions are permitted for the purpose of preservation,

7.  section 60f (Archives, museums and educational establishments), insofar as reproductions are permitted for the purpose of preservation.

(4) Technical measures applied to meet the obligations under subsection (1), including measures applied to implement voluntary agreements, enjoy the legal protection under section 95a.

Section 95c Protection of rights management information

(1) Information from rightholders for the management of rights (rights management information) may not be removed or altered if any of the information concerned is affixed to a copy of a work or of other protected subject matter or in the context of communication to the public of such a work or protected subject matter is published and if removal or alteration has been knowingly undertaken without authorisation, and those acting know or must have reasonable grounds to know that by doing so they are inducing, enabling, facilitating or concealing an infringement of copyright or related rights.

(2) For the purposes of this Act, ʻrights management informationʼ means electronic information which identifies the works or other protected subject matter, the author or any other rightholder, information on the terms and conditions relating to the use of the works or protected subject matter, and any numbers and codes which represent such information.

(3) Works or other protected subject matter from which rights management information has been removed or altered without authorisation may not be knowingly distributed, imported for distribution, broadcast, communicated to the public or made available to the public without authorisation if the person knows or must have reasonable grounds to know that they have induced, enabled, facilitated or concealed an infringement of copyright or related rights.

Section 95d Labelling obligations

(1) Works and other protected subject matter which are protected by technical measures are to be clearly labelled with information on the characteristics of the technical measures.

(2) Any person who protects works and other protected subject matter by technical measures is required to label these in order to facilitate rights management as per section 95b (2) with their name or the name of the enterprise and the address to which documents are to be delivered.

Section 96 Prohibition of exploitation

(1) Illegally produced copies may neither be distributed nor used for the purposes of communication to the public.

(2) Illegally made broadcasts may not be fixed on video or audio recording mediums or communicated to the public.

Division 2 Infringements

Subdivision 1 Civil law provisions; legal recourse

Section 97 Right to require cessation of infringement and to damages

(1) Any person who infringes copyright or another right protected under this Act may be required by the injured party to eliminate the infringement or, where there is a risk of repeated infringement, may be required by the injured party to cease and desist. The right to require the cessation also exists where the risk of infringement exists for the first time.

(2) Any person who acts intentionally or negligently is obliged to pay the injured party damages for the prejudice suffered as a result of the infringement. When setting the damages any profit obtained by the infringer as a result of the infringement of the right may also be taken into account. Entitlement to damages may also be assessed on the basis of the amount the infringer would have had to pay in equitable remuneration if the infringer had requested authorisation to use the right infringed. Authors, writers of scientific editions (section 70), photographers (section 72) and performers (section 73) may also demand pecuniary compensation for damage which is non-pecuniary in nature provided and to the extent that this is equitable.

Section 97a Notification

(1) The injured party is, as a rule, to notify the infringer before instituting proceedings in court to desist from infringement and to give the infringer the opportunity to settle the dispute by entering into an obligation to desist from infringement accompanied by an equitable contractual penalty.

(2) The notification must clearly and comprehensibly

1.   state the name or company of the injured party if it is not the injured party but a representative who gives notification,

2.   provide a precise description of the infringement,

3.   break down claims to payment asserted into claims for damages and claims for compensation, and

4.   if the notification contains a request to enter into an obligation to desist from infringement, to state to whether the proposed obligation to desist from infringement goes substantially beyond the infringement notified.

A notification which does not meet the conditions of sentence 1 is not effective.

(3) Where the notification is justified and meets the conditions of subsection (2) sentence 1 nos. 1 to 4, reimbursement of expenses necessarily incurred may be demanded. Where legal services have been used, the reimbursement of expenses necessarily incurred is limited, as regards statutory fees, to fees based on a value of the object of the claim to desist and the claim for removal of 1,000 euros if the person notified

1.   is a natural person who does not use the works protected under this Act or other subject matter protected under this Act for his or her commercial or self-employed business activity and

2.   is not already obliged to desist from infringement on the basis of a claim of the notifying party by contract, a legally binding decision or a temporary injunction.

The value referred to in sentence 2 is also decisive where a claim to desist and a claim for removal are asserted in parallel. Sentence 2 does not apply where the value referred to is unreasonable based on the specific circumstances of the individual case.

(4) Where the notification is unjustified or ineffective, the person notified may demand reimbursement of the necessary expenses incurred in respect of defending their rights, unless the person giving notification was not able to recognise at the point in time when notification was made that the notification was unjustified. Rights to reimbursement over and above this remain unaffected.

Section 98 Claim to destruction, recall and release of copies

(1) Any person who infringes copyright or another right protected under this Act may be required by the injured party to destroy the unlawfully produced or distributed copies or copies which are intended for illegal distribution which are in the injuring party’s possession or are their property. Sentence 1 applies accordingly to devices which are the property of the injuring party which have predominantly served the production of these copies.

(2) Any person who infringes copyright or another right protected under this Act may be required by the injured party to recall unlawfully produced or distributed copies or copies intended for unlawful distribution or to definitively remove them from the channels of commerce.

(3) As an alternative to the measures provided for in subsection (1), the injured party may require that the copies which are the injuring party’s property be released against payment of equitable remuneration, which may not exceed the production costs.

(4) The claims under subsections (1) to (3) are precluded if the measure is disproportionate in the individual case. Account is also to be taken of the legitimate interests of third parties when examining the aspect of proportionality.

(5) Buildings as well as removable parts of copies and devices whose production and distribution is not unlawful are not subject to the measures provided for in subsections (1) to (3).

Section 99 Liability of owner of enterprise

Where a right protected under this Act has been infringed in an enterprise by an employee or agent, the injured party is also entitled to assert the rights set out in section 97 (1) and section 98 against the owner of the enterprise.

Section 100 Pecuniary compensation

Where the injuring party acts neither intentionally nor negligently, he or she may, in order to avert the assertion of the claims under sections 97 and 98, pay pecuniary compensation to the injured party if fulfilment of the claims would cause disproportionate harm and the injured party can be expected to accept pecuniary compensation. The compensation totals that amount which would constitute equitable remuneration were the right to be contractually granted. Payment of such compensation is deemed equivalent to granting the injuring party permission to exploit the right to the customary extent.

Section 101 Right of information

(1) Any person who infringes copyright or another right protected under this Act on a commercial scale may be required by the injured party to provide information without delay as to the origin and the distribution networks of infringing copies or other products. The commercial scale may be deemed to exist on the basis either of the number of infringements or the severity of the infringement.

(2) In cases of manifest infringement or in cases where the injured party has brought a court action against the infringer, such a right also exists, without prejudice to subsection (1), against any person who, on a commercial scale,

1.  was in possession of infringing copies,

2.  was using infringing services,

3.  was rendering services used in infringing activities or

4.  was indicated by the person referred to in no. 1, 2 or 3 as being involved in the production, manufacture or distribution of such copies, other products or services,

unless the person concerned would, under sections 383 to 385 of the Code of Civil Procedure, be entitled to refuse testimony as a witness in the proceedings against the infringer. In the event of a claim under sentence 1 being brought before a court, the court may, upon application, suspend the litigation pending against the infringer until disposal of any litigation being conducted in respect of a right to information. The person obliged to provide information may demand reimbursement from the injured party of the expenses necessarily incurred in providing the information.

(3) The person obliged to provide information must supply the following information:

1.  the name and address of the producers, suppliers and other previous holders of the copies or other products, the users of the services, as well as the intended wholesalers and retailers, and

2.  the quantities of produced, delivered, received or ordered copies or other products, as well as the prices paid for the copies or other products in question.

(4) The claims under subsections (1) and (2) are precluded where their assertion is disproportionate in the individual case.

(5) Where the person obliged to provide information intentionally or gross negligently provides incorrect or incomplete information, that person is obliged to reimburse the injured party for the resulting damage.

(6) Any person who provides truthful information without having been obliged to do so in accordance with subsection (1) or (2) is only held liable against third parties if they knew that they were not obliged to provide the information.

(7) In the event of an obvious infringement, the obligation to provide information may be issued by way of a temporary injunction pursuant to sections 935 to 945 of the Code of Civil Procedure.

(8) The findings may be used in criminal proceedings or in proceedings based on the Act on Regulatory Offences ( Ordnungswidrigkeitengesetz ) in respect of an act committed before the information was provided against the person obliged to provide information or against a relative designated in section 52 (1) of the Code of Criminal Procedure ( Strafprozeßordnung ) only with the consent of the person obliged to provide information.

(9) Where the information can be provided only by using traffic data (section 3 no. 70 of the Telecommunications Act ( Telekommunikationsgesetz )), a prior judicial order, which must be applied for by the injured party as to the admissibility of use of the traffic data, is required for the provision of such information. Sole jurisdiction for issuing any such order, regardless of the value of the claim, lies with the regional court in whose district the person obliged to provide information has his or her domicile, principal place of business or a place of business. The decision is rendered by the civil division. The provisions of the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction ( Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit ) apply accordingly to the proceedings. The costs of the judicial order are borne by the injured party. The remedy of a complaint ( Beschwerde ) is admissible in respect of the regional court’s decision. It must be filed within a period of two weeks. The provisions on the protection of personal data otherwise remain unaffected.

(10) The fundamental right to privacy of telecommunications (Article 10 of the Basic Law ( Grundgesetz )) is restricted on account of subsection (2) read in conjunction with subsection (9).

Section 101a Entitlement to presentation and inspection

(1) Any person who has with sufficient probability infringed copyright or another right protected under this Act may be required by the injured party to present a document or to permit the inspection of an object in their possession if this is necessary in order to substantiate any claims. Where an infringement has with sufficient probability occurred on a commercial scale, the entitlement also extends to the presentation of banking, financial or commercial documents. Where the supposed infringed party asserts that this information is confidential, the court takes the measures necessary to guarantee the level of protection required in the individual case.

(2) The claim under subsection (1) is precluded if its assertion is disproportionate in the individual case.

(3) The obligation to present a document or to permit the inspection of an object may be ordered by way of a temporary injunction pursuant to sections 935 to 945 of the Code of Civil Procedure. The court takes the measures necessary to guarantee the protection of confidential information. This in particular applies in cases in which the temporary injunction is issued without the opposing party having been heard.

(4) Section 811 of the Civil Code and section 101 (8) of this Act apply accordingly.

(5) If there was no infringement or no risk of an infringement, the supposed injuring party may demand compensation for the damage caused by the request for presentation or inspection pursuant to subsection (1) from the person who required this of them.

Section 101b Securing claims for damages

(1) In the event of an infringement committed on a commercial scale in the cases referred to in section 97 (2), the injured party may require the injuring party to present banking, financial or commercial documents or appropriate access to the relevant information which are in the injuring party’s possession and which are necessary to enforce the claim for damages if without such presentation recovery of damages is doubtful. Where the injuring party asserts that the information is confidential, the court takes the measures necessary to guarantee the level of protection required in the individual case.

(3) The obligation to present the documents designated in subsection (1) may be ordered by way of a temporary injunction pursuant to sections 935 to 945 of the Code of Civil Procedure if the entitlement to damages obviously exists. The court takes the measures necessary to guarantee the protection of confidential information. This in particular applies in cases in which the temporary injunction is issued without the opposing party having been heard.

Section 102 Limitation period

The provisions of Book 1 Division 5 of the Civil Code apply accordingly in respect of the limitation period regarding claims on account of an infringement of copyright or another right protected under this Act. Where the obligated party obtained something on account of the infringement at the rightholder’s expense, section 852 of the Civil Code applies accordingly.

Section 102a Entitlements resulting from other statutory provisions

Entitlements resulting from other statutory provisions remain unaffected.

Section 103 Publication of judgment

Where an action was filed on the basis of this Act, the successful party may be authorised by judgment to publish the judgment at the expense of the unsuccessful party if a legitimate interest therein is substantiated. The nature and extent of the publication are determined in the judgment. This authorisation expires if it is not made use of within three months after the judgment becomes final. The judgment may be published only after it becomes final, unless otherwise provided for by the court.

Section 104 Legal recourse

Recourse to the courts is permitted in respect of all legal disputes by means of which a claim is asserted on account of a legal relationship regulated under this Act (copyright litigation matters). As regards copyright litigation matters resulting from employment or service relationships which have as their object only claims for payment of an agreed remuneration, recourse to the labour courts and the administrative courts remains unaffected.

Section 104a Place of jurisdiction

(1) As regards actions brought on account of copyright litigation matters against a natural person who does not use works protected under this Act or other subject matter protected under this Act for his or her commercial or self-employed business activity, that court has exclusive jurisdiction in whose district that person has his or her domicile at the time when the action is brought, for want of such domicile his or her habitual residence. If the defendant has neither his or her domicile nor habitual residence in Germany, that court has jurisdiction in whose district the act was carried out.

(2) Section 105 remains unaffected.

Section 105 Courts for copyright litigation

(1) The Land governments are authorised to assign, by way of statutory instrument, copyright litigation matters for which the regional court is competent as court of first instance or as appeal court to one of the several regional courts competent within a district where this serves the administration of justice.

(2) The Land governments are, further, authorised to assign, by way of statutory instrument, copyright litigation matters which are within the jurisdiction of the local courts to one of several local courts within a district where this serves the administration of justice.

(3) The Land governments may transfer the authorisations referred to in subsections (1) and (2) to the Land departments of justice.

(4) and (5) (repealed)

Subdivision 2 Criminal and regulatory fine provisions

Section 106 Unlawful exploitation of copyrighted works

(1) Any person who, without the rightholder’s consent, reproduces, distributes or communicates to the public a work or an adaptation or transformation of a work in manners other than those permitted by law incurs a penalty of imprisonment for a term not exceeding three years or a fine.

(2) The attempt is punishable.

Section 107 Unlawful affixing of designation of authorship

(1) Any person who

1.  without the author’s consent affixes to the original of an artistic work the designation of authorship (section 10 (1)) or distributes an original bearing such designation,

2.  affixes to a copy, an adaptation or transformation of an artistic work the designation of authorship (section 10 (1)) in a manner which gives the copy, adaptation or transformation the appearance of an original, or distributes a copy, such an adaptation or transformation bearing such designation,

incurs a penalty of imprisonment for a term not exceeding three years or a fine, unless other provisions impose a more severe penalty.

Section 108 Infringement of related rights

(1) Any person who, without the rightholder’s consent,

1.  reproduces, distributes or communicates to the public a scientific edition (section 70) or an adaptation or transformation of such an edition,

2.  exploits a posthumous work or an adaptation or transformation of such a work contrary to section 71,

3.  reproduces, distributes or communicates to the public a photograph (section 72) or an adaptation or transformation of a photograph,

4.  exploits a performer’s performance contrary to section 77 (1) or (2) sentence 1 and section 78 (1),

5.  exploits an audio recording contrary to section 85,

6.  exploits a broadcast contrary to section 87,

7.  exploits a video recording or a video and audio recording contrary to sections 94 or 95 read in conjunction with section 94,

8.  exploits a database contrary to section 87b (1),

in manners other than those permitted by law incurs a penalty of imprisonment for a term not exceeding three years or a fine.

Section 108a Commercial unlawful exploitation

(1) Where the offender in the cases referred to in sections 106 to 108 acts on a commercial basis, the penalty is imprisonment for a term not exceeding five years or a fine.

Section 108b Infringement of technical measures and rights management information

(1) Any person who,

1.  with the intention of enabling for themselves or a third party access to a work which is protected under this Act or to other subject matter protected under this Act or its use, circumvents an effective technical measure without the rightholder’s consent or

2.  knowingly without authorisation

a)  removes or alters rights management information provided by rightholders if any of the information concerned is affixed to a copy of a work or of other protected subject matter or is released in the context of the communication to the public of such a work or protected subject matter or

b)  distributes, imports for distribution, broadcasts, communicates to the public or makes available to the public a work or other protected subject matter where rights management information was removed or altered without authorisation,

and by doing so has at least carelessly induced, enabled, facilitated or concealed an infringement of copyright or related rights,

then, if the offence was not committed exclusively for the personal private use of the offender or of persons personally associated with the offender or does not relate to such use, that person incurs a penalty of imprisonment for a term not exceeding one year or a fine.

(2) A penalty is also imposed on any person who, contrary to section 95a (3), produces, imports, distributes, sells or rents a device, a product or component for commercial purposes.

(3) If, in cases referred to in subsection (1), the offender acts on a commercial scale, the penalty is imprisonment for a term not exceeding three years or a fine.

Section 109 Application for criminal prosecution

In the cases referred to in sections 106 to 108 and in section 108b, the act is only prosecuted upon application, unless the criminal prosecution authority regards ex-officio action to be necessary on account of the particular public interest in the criminal prosecution.

Section 110 Confiscation

Articles which are the object of a criminal offence pursuant to sections 106, 107 (1) no. 2 and sections 108 to 108b may be confiscated. Section 74a of the Criminal Code ( Strafgesetzbuch ) applies. Where the claims designated in section 98 are upheld in proceedings under the provisions of the Code of Criminal Procedure concerning compensation of the injured party (sections 403 to 406c of the Code of Criminal Procedure), the provisions concerning confiscation do not apply.

Section 111 Publication of judgement

Where a penalty is imposed in the cases referred to in sections 106 to 108b, then if the injured party makes an application and substantiates a legitimate interest therein, the court is to order that the conviction be published upon request. The manner of the publication is to be determined in the judgment.

Section 111a Regulatory fine provisions

1.  contrary to section 95a (3)

a)  sells, rents out or distributes a device, product or component outside the circle of people with whom the offender is personally associated or

b)  for commercial purposes possesses, advertises for sale or rental, or renders a service in respect of a device, product or component,

2.  contrary to section 95b (1) sentence 1 does not provide necessary means or

3.  contrary to section 95d (2) does not or does not fully label works or other protected subject matter

is deemed to have committed a regulatory offence.

(2) In the cases referred to in subsection (1) nos. 1 and 2, the regulatory offence may be sanctioned with a regulatory fine of no more than 50,000 euros and in other cases with a regulatory fine of no more than 10,000 euros.

Subdivision 3 Provisions on measures by customs authorities

Section 111b Proceedings under German law

(1) If the production or distribution of copies infringes copyright or another right protected under this Act, then unless Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June 2013 concerning customs enforcement of intellectual property rights and repealing Council Regulation (EC) No 1383/2003 (OJ L 181, 29.6.2013, p. 15), as amended, is applicable, the copies are, upon application and against payment of a security by the rightholder, following their import or export subject to confiscation by the customs authority insofar as the infringement is obvious. This applies to dealings with other Member States of the European Union and with other Contracting Parties of the Agreement on the European Economic Area only insofar as the customs authorities are responsible for controls.

(2) If the customs authority orders the confiscation, it informs the person authorised to dispose of the articles and the applicant thereof without delay. The applicant is to be informed of the origin, quantity and whereabouts of the copies, as well as of the name and address of the person authorised to dispose of the articles; the privacy of correspondence and posts (Article 10 of the Basic Law) are thereby restricted. The applicant is given the opportunity to inspect the copies insofar as this does not interfere with business or trade secrets.

(3) If no objection is raised to the seizure within two weeks following service of the notification in accordance with subsection (2) sentence 1, the customs authority orders confiscation of the seized copies.

(4) If the person authorised to dispose of the articles objects to the seizure, the customs authority informs the applicant thereof without delay. The applicant must declare to the customs authority without delay whether he or she will uphold the application in accordance with subsection (1) in respect of the seized copies.

1.  If the applicant withdraws the application, the customs authority revokes the seizure without delay.

2.  If the applicant upholds the application and submits an executable court decision ordering the storage of the seized copies or a limitation on the right of disposal, the customs authority takes the necessary measures.

Where the cases referred to in no. 1 or no. 2 do not exist, the customs authority revokes the seizure following the expiry of two weeks after service of the notification on the applicant in accordance with sentence 1; if the applicant can furnish proof that an application for the court decision in accordance with no. 2 has been made but has not yet been served, the seizure is maintained for no longer than a further two weeks.

(5) If the seizure proves to have been unjustified from the outset and the applicant has upheld the application referred to in subsection (1) in respect of the seized copies or did not make a declaration without delay (subsection (4) sentence 2), then the applicant is obliged to reimburse the person authorised to dispose of the articles the damage arising on account of the seizure.

(6) The application referred to in subsection (1) is to be made to the Central Customs Authority and is effective for one year, unless a shorter period is applied for; a renewed application is possible. The applicant is asked to pay costs in accordance with section 178 of the Fiscal Code ( Abgabenordnung ) for official acts performed in connection with the application.

(7) The seizure and the confiscation may be contested by means of the legal remedies permitted against seizure and confiscation in regulatory fine proceedings under the Act on Regulatory Offences. The applicant is to be heard in the appeal proceedings. An immediate appeal ( sofortige Beschwerde ) is admissible against the decision of the local court; the higher regional court decides in the matter.

(8) (repealed)

Section 111c Proceedings pursuant to Regulation (EU) No 608/2013

Section 111b (5) and (6) applies accordingly to proceedings pursuant to Regulation (EU) No 608/2013, unless that Regulation contains provisions which preclude this.

Division 3 Compulsory enforcement

Section 112 General

The admissibility of compulsory execution on a right protected under this Act is subject to general legal provisions, unless otherwise provided in sections 113 to 119.

Subdivision 2 Compulsory enforcement for pecuniary claims against author

Section 113 Copyright

Execution on copyright for pecuniary claims against the author is admissible only with his or her consent and only to the extent that the author may grant rights of use (section 31). The consent may not be given through a legal representative.

Section 114 Originals of works

(1) Execution for pecuniary claims against the author on originals of his or her work which the author owns is admissible only with his or her consent. The consent may not be given through a legal representative.

(2) No consent is required

1.  insofar as execution on the original of the work is necessary to levy the execution on a right of use in the work,

2.  for execution on the original of an architectural work,

3.  for execution on the original of another artistic work if the work has been published.

In the cases referred to in nos. 2 and 3, the original of the work may be distributed without the author’s consent.

Subdivision 3 Compulsory enforcement for pecuniary claims against author’s successor in title

Section 115 Copyright

Execution on copyright for pecuniary claims against the author’s successor in title (section 30) is admissible only with his or her consent and only to the extent that the author’s successor in title may grant rights of use (section 31). No consent is required if the work has been released.

Section 116 Originals of works

(1) Execution for pecuniary claims against the author’s successor in title (section 30) on originals of the author’s work which he or she owns is admissible only with successor in title’s consent.

1.  in the cases referred to in section 114 (2) sentence 1,

2.  for execution on the original of a work if the work has been released.

Section 114 (2) sentence 2 applies accordingly.

Section 117 Executor

Where, in accordance with section 28 (2), the exercise of copyright by an executor has been ordered, the consent required in accordance with sections 115 and 116 is to be given by the executor.

Subdivision 4 Compulsory enforcement for pecuniary claims against authors of scientific editions and against photographers

Section 118 Analogous application

Sections 113 to 117 apply analogously

1.  to execution for pecuniary claims against the author of scientific editions (section 70) and his or her successor in title,

2.  to execution for pecuniary claims against the photographer (section 72) and his or her successor in title.

Subdivision 5 Compulsory enforcement for pecuniary claims in respect of certain devices

Section 119 Compulsory enforcement in respect of certain devices

(1) Devices intended exclusively for the reproduction or broadcasting of a work, such as moulds, plates, engraving stones, blocks, stencils and negatives, are subject to execution for pecuniary claims only insofar as the creditor is authorised to use the work by means of such devices.

(2) The same applies to devices intended exclusively for the presentation of a cinematographic work, such as reels of film and suchlike.

(3) Subsections (1) and (2) apply accordingly to editions protected under sections 70 and 71, to photographs protected under section 72, to video and audio recordings protected under section 77 (2) sentence 1, sections 85, 87, 94 and 95, and to databases protected under section 87b (1).

Part 5 Scope of application, transitional and final provisions

Division 1 Scope of Act

Subdivision 1 Copyright

Section 120 German nationals and nationals of other EU Member States or Contracting Parties of Agreement on EEA

(1) German nationals enjoy copyright protection for all their works, regardless of whether and where the works were released. Where a work was created by joint authors (section 8), it is sufficient for one joint author to be a German national.

(2) The following are deemed equal to German nationals:

1.  Germans within the meaning of Article 116 (1) of the Basic Law who do not hold German nationality and

2.  nationals of another Member State of the European Union (EU) or of another Contracting Party of the Agreement on the European Economic Area (EEA).

Section 121 Foreign nationals

(1) Foreign nationals enjoy copyright protection for their works released within the territory to which this Act applies, unless the work or a translation of the work was released outside the territory to which this Act applies more than 30 days prior to release within that territorial scope. Foreign nationals also enjoy protection with the same limitations for such works as were released only in translation within the territory to which this Act applies.

(2) Artistic works which are a permanent fixture on real property located within the territory to which this Act applies are deemed equal to works within the meaning of subsection (1) released within the territory to which this Act applies.

(3) The protection granted under subsection (1) may be limited by way of a statutory instrument issued by the Federal Minister of Justice and Consumer Protection in respect of foreign nationals who are not nationals of any Member State of the Berne Convention for the Protection of Literary and Artistic Works and at the time of the release of the work have their domicile neither within the territory to which this Act applies nor in another Member State if the state of which they are a national does not grant German nationals sufficient protection for their works.

(4) In all other cases, foreign nationals enjoy copyright protection under international treaties. Where no international treaties exist, copyright protection exists for such works insofar as, in accordance with notification published by the Federal Minister of Justice and Consumer Protection in the Federal Law Gazette, German nationals enjoy corresponding protection of their works in the state of which the author is a national.

(5) Foreign nationals are entitled to resale rights (section 26) only if, in accordance with notification published by the Federal Minister of Justice and Consumer Protection in the Federal Law Gazette, the state of which they are a national grants German nationals a corresponding right.

(6) Foreign nationals enjoy the protection granted under sections 12 to 14 for all their works even if the conditions of subsections (1) to (5) are not met.

Section 122 Stateless persons

(1) Stateless persons who are habitually resident within the territory to which this Act applies enjoy the same copyright protection of their works as German nationals.

(2) Stateless persons who are not habitually resident within the territory to which this Act applies enjoy the same copyright protection for their works as members of that foreign state in which they are habitually resident.

Section 123 Foreign refugees

The provisions of section 122 apply accordingly to foreigners who are refugees within the meaning of international treaties or other statutory provisions. This does not preclude protection under section 121.

Subdivision 2 Related rights

Section 124 Scientific editions and photographs

Sections 120 to 123 apply analogously in respect of the protection of scientific editions (section 70) and the protection of photographs (section 72).

Section 125 Protection of performers

(1) German nationals enjoy the protection granted under sections 73 to 83 for all their performances, regardless of where they take place. Section 120 (2) applies.

(2) Foreign nationals enjoy protection with respect to all their performances which take place within the territory to which this Act applies, unless subsections (3) and (4) provide otherwise.

(3) Where performances by foreign nationals are lawfully fixed on video or audio recording mediums and these are released, foreign nationals enjoy the protection granted under section 77 (2) sentence 1, section 78 (1) no. 1 and (2) in respect of these video or audio recordings if the video or audio recordings were released within the territory to which this Act applies, unless the video or audio recordings were released outside the territory to which this Act applies more than 30 days before they were released within the territory to which this Act applies.

(4) Where performances by foreign nationals are lawfully broadcast, the foreign nationals enjoy protection against the fixing of the broadcast on video or audio recording mediums (section 77 (1)) and rebroadcasting of the broadcast (section 78 (1) no. 2), as well as the protection granted under section 78 if the broadcast was transmitted within the territory to which this Act applies.

(5) In all other cases, foreign nationals enjoy protection under international treaties. Section 121 (4) sentence 2 and sections 122 and 123 apply accordingly.

(6) Foreign nationals enjoy the protection granted under sections 74 and 75, section 77 (1) and section 78 (1) no. 3 for all their performances, even if the conditions of subsections (2) to (5) are not met. The same applies in respect of the protection granted under section 78 (1) no. 2 where a direct broadcast of the performance is concerned.

(7) Where protection is granted under subsections (2) to (4) or (6), it expires at the latest upon the expiry of the term of protection in that state of which the performer is a national, without exceeding the term of protection under section 82.

Section 126 Protection of producers of audio recordings

(1) German nationals or enterprises whose principal place of business is located within the territory to which this Act applies enjoy the protection granted under sections 85 and 86 for all their audio recordings, regardless of whether and where they were released. Section 120 (2) applies. Enterprises whose principal place of business is located in another Member State of the European Union or in another Contracting Party of the Agreement on the European Economic Area are deemed equivalent to enterprises whose principal place of business is located within the territory to which this Act applies.

(2) Foreign nationals or enterprises with no principal place of business within the territory to which this Act applies enjoy protection for all audio recordings released within the territory to which this Act applies, unless the audio recording was released outside the territory to which this Act applies more than 30 days before it was released within the territory to which this Act applies. However, the protection expires at the latest after the expiry of the term of protection in that state of which the producer of the audio recording is a national or in which the enterprise has its principal place of business, without exceeding the term of protection under section 85 (3).

(3) In all other cases, foreign nationals or enterprises whose principal place of business is not located within the territory to which this Act applies enjoy protection under international treaties. Section 121 (4) sentence 2 and sections 122 and 123 apply accordingly.

Section 127 Protection of broadcasting organisations

(1) Broadcasting organisations whose principal place of business is located within the territory to which this Act applies enjoy the protection granted under section 87 for all broadcasts, regardless of where they are transmitted. Section 126 (1) sentence 3 applies.

(2) Broadcasting organisations with no principal place of business within the territory to which this Act applies enjoy protection for all broadcasts they transmit within the territory to which this Act applies. The protection expires upon the expiry of the term of protection granted in that state in which the broadcasting organisation has its principal place of business, without exceeding the term of protection under section 87 (3).

(3) In all other cases, broadcasting organisations with no principal place of business within the territory to which this Act applies enjoy protection in accordance with the content of international treaties. Section 121 (4) sentence 2 applies accordingly.

Section 127a Protection of makers of database

(1) German nationals and legal entities whose principal place of business is located within the territory to which this Act applies enjoy the protection granted under section 87b. Section 120 (2) applies.

(2) Legal entities with no principal place of business within the territory to which this Act applies which were established under German law or the law of one of the states designated in section 120 (2) no. 2 enjoy the protection granted under section 87b if

1.  their head office or main establishment is located within the territory of one of the states designated in section 120 (2) no. 2 or

2.  their registered office is located within the territory of one of these states and there is an actual link between their activities and the German economy or the economy of one of these states.

(3) In all other cases, foreign nationals and legal entities enjoy the protection granted under international treaties, as well as agreements which the European Community concludes with third-party states; the Federal Ministry of Justice and Consumer Protection gives notification of these agreements by publication in the Federal Law Gazette.

Section 127b Protection of publishers of press publications

(1) German nationals or enterprises whose principal place of business is located within the territory to which this Act applies enjoy the protection granted under section 87g. Section 120 (2) and section 126 (1) sentence 3 apply.

(2) Enterprises which have no principal place of business within the territory to which this Act applies enjoy the protection granted under section 87g if their head office or main establishment is located within the territory to which this Act applies or within the territory of another Member State of the European Union or of another Contracting Party of the Agreement on the European Economic Area.

Section 128 Protection of producers of films

(1) German nationals or enterprises whose principal place of business is located within the territory to which this Act applies enjoy the protection granted under section 94 and 95 for all their video recordings or video and audio recordings, regardless of whether and where they were released. Section 120 (2) and section 126 (1) sentence 3 apply.

(2) The provisions of section 126 (2) and (3) apply accordingly to foreign nationals or enterprises with no principal place of business within the territory to which this Act applies.

Division 2 Transitional provisions

Section 129 Works

(1) The provisions of this Act also apply to works created before its entry into force, unless they were not protected by copyright at that point in time or this Act provides otherwise. This applies accordingly to related rights.

(2) The duration of copyright in a work published after the expiry of 50 years following the author’s death but before the entry into force of this Act is determined in accordance with previously applicable provisions.

Section 130 Translations

The rights of the author of a translation which was lawfully released before 1 January 1902 without the consent of the author of the translated work remain unaffected.

Section 131 Literary works set to music

Literary works set to music whose reproduction, distribution and communication to the public was permitted without the author’s consent in accordance with section 20 of the Act on Copyright in Works of Literature and of Musical Art ( Gesetz betreffend das Urheberrecht an Werken der Literatur und der Tonkunst ) of 19 June 1901 (Reich Law Gazette, p. 227), as amended by the Act Implementing the revised Berne Convention for the Protection of Literary and Artistic Works ( Gesetz zur Ausführung der revidierten Berner Übereinkunft zum Schutze von Werken der Literatur und Kunst ) of 22 May 1910 (Reich Law Gazette, p. 793), may continue to be reproduced, distributed and communicated to the public in the same measure if the setting to music of the work was released before the entry into force of this Act.

Section 132 Contracts

(1) The provisions of this Act, with the exception of sections 42 and 43, do not apply to contracts concluded before 1 January 1966. Section 43 applies accordingly to performers. Sections 40 and 41 apply to such contracts, with the proviso that the terms designated in section 40 (1) sentence 2 and in section 41 (2) are to be calculated from 1 January 1966 at the earliest.

(2) Dispositions made before 1 January 1966 remain effective.

(3) The provisions of this Act in the version applicable on 28 March 2002 continue to apply to contracts concluded, or other facts which occurred, before 1 July 2002, subject to sentences 2 and 3 and section 133 (2) to (4). Section 32a applies to facts which occurred after 28 March 2002. Section 32 applies to contracts concluded between 1 June 2001 and 30 June 2002 if the right granted or the permission is used after 30 June 2002.

(3a) The provisions of this Act, subject to section 133 (2) to (4), in the version applicable up to and including 28 February 2017 continue to apply to contracts concluded or other facts which occurred as from 1 July 2002 and before 1 March 2017.

(4) Subsections (3) and (3a) apply accordingly to performers.

Section 133 Transitional provision in implementation of contract law provisions in Directive (EU) 2019/790

(1) Subject to subsections (2) to (4), the provisions of Part 1 Division 5 Subdivision 2 in the version applicable on 1 March 2017 continue to apply to contracts concluded or other facts which occurred as from 1 March 2017 and before 7 June 2021.

(2) As from 7 June 2021, the provisions on the author’s further participation (section 32a) and on the right of revocation for non-exercise (section 41) in the version applicable on 7 June 2021 even apply to contracts concluded before that date.

(3) As from 7 June 2022, the provisions on the provision of information by and accountability of a contracting party (section 32d) and on the provision of information by and accountability of third parties in the licence chain (section 32e), in the version applicable on 7 June 2021, also apply to contracts concluded before 7 June 2021. In derogation from sentence 1, in the case of contracts concluded before 1 January 2008, information about the use of film works or moving pictures and the filmic use of the works used in their production is only to be provided at the author’s request.

(4) Subsections (1) to (3) apply accordingly to performers.

Section 134 Authors

Any person who is regarded as the author of a work in accordance with previously applicable provisions but, upon the entry into force of this Act, is no longer regarded as the author of a work in accordance with the provisions of this Act is still deemed to be the author, regardless of the cases referred to in section 135. Where, in accordance with previously applicable provisions, a legal entity is regarded as the author of a work, the previously applicable provisions apply in respect of the calculation of the term of protection.

Section 135 Holders of related rights

Any person who, upon the entry into force of this Act, is regarded, in accordance with previously applicable provisions, as the author of a photograph or of the transferral of a work to devices for mechanical communication is the holder of the corresponding related rights granted under this Act.

Section 135a Calculation of term of protection

If, on account of the application of this Act, the term of protection for a right arising prior to the entry into force of this Act is curtailed and the event which is decisive in respect of the commencement of the term of protection in accordance with this Act occurred before the entry into force of this Act, the term is to be calculated from the entry into force of this Act. However, the protection expires at the latest upon the expiry of the term of protection in accordance with previously applicable provisions.

Section 136 Reproduction and distribution

(1) If a reproduction which is prohibited under this Act was previously permitted, the production of copies which began prior to the entry into force of this Act may be completed.

(2) The copies produced in accordance with subsection (1) or prior to the entry into force of this Act may be distributed.

(3) If, under this Act, equitable remuneration is to be paid to the rightholder for a reproduction which was freely permitted in accordance with previous provisions, the copies designated in subsection (2) may be distributed without payment of remuneration.

Section 137 Transfer of rights

(1) Insofar as a copyright was transferred to another prior to the entry into force of this Act, the transferee is entitled to the corresponding rights of use (section 31). However, in cases of doubt, the transfer does not extend to entitlements which were first established under this Act.

(2) If the copyright was transferred, in whole or in part, to another prior to the entry into force of this Act, then, in cases of doubt, the transfer also extends to the period by which the term of protection was extended in accordance with sections 64 to 66. The same applies accordingly if, prior to the entry into force of this Act, another person was authorised to exercise a right to which the author was entitled.

(3) In the cases referred to in subsection (2), the transferee or licensee is required to pay the transferor or licensor equitable remuneration insofar as it can be assumed that he or she would have obtained a higher return on account of the transfer or the authorisation if at that time the extended term of protection had already been determined.

(4) The claim for the remuneration does not apply if, as soon as it has been asserted, the transferee makes available to the transferor the right for the period after the expiry of the previously determined term of protection or the licensee relinquishes the authorisation for this period. If the transferee resells the copyright prior to the entry into force of this Act, the remuneration is not to be paid insofar as it would, considering the circumstances of the resale, place an unreasonable burden on the transferee.

(5) Subsection (1) applies accordingly to related rights.

Section 137a Photographic works

(1) The provisions of this Act concerning the term of protection also apply to photographic works whose term of protection had not yet expired on 1 July 1985 in accordance with the law applicable up until that date.

(2) Where a right of use in a photographic work was previously granted to another, then, in cases of doubt, the grant or transfer does not extend to that period by which the term of protection in photographic works has been extended.

Section 137b Certain editions

(1) The provisions of this Act concerning the term of protection under sections 70 and 71 also apply to scientific editions and editions of posthumous works whose term of protection had not yet expired on 1 July 1990 under the law applicable until that date.

(2) Where a right of use in a scientific edition or in an edition of posthumous works was granted or transferred to another before 1 July 1990, then, in cases of doubt, the grant or transfer also extends to the period by which the term of the related right has been extended.

(3) The provisions of section 137 (3) and (4) apply accordingly.

Section 137c Performers

(1) The provisions of this Act concerning the term of protection under section 82 also apply to performances fixed on video or audio recording mediums before 1 July 1990 if, on 1 January 1991, a period of 50 years had not yet expired since the video or audio recording was released. If the video or audio recording was not released within this period, the period is to be calculated from the time of the performance. Protection under this Act on no account extends beyond 50 years after the release of the video or audio recording or, if the video or audio recording was not released, 50 years after the performance.

(2) Where a right of use in a performance was granted or transferred to another before 1 July 1990, then, in cases of doubt, the grant or transfer also extends to the period by which the term of protection was extended.

Section 137d Computer programs

(1) The provisions of Part 1 Division 8 also apply to computer programs created before 24 June 1993. However, the exclusive rental right (section 69c no. 3) does not extend to copies of a program which a third party acquired before 1 January 1993 for rental purposes.

(2) Section 69g (2) also applies to contracts concluded before 24 June 1993.

(3) Section 69a (5), in the version applicable on 7 June 2021, only applies to contracts concluded and facts which occur as from that date.

Section 137e Transitional provisions in implementation of Council Directive 92/100/EEC

(1) The provisions of this Act which entered into force on 30 June 1995 also apply to works, performances, audio recordings, broadcasts and films created before that date, unless they were no longer protected on that date.

(2) Where an original or a copy of a work or of a video or audio recording was acquired before 30 June 1995 or a third person was given permission to use it for rental purposes, the consent of the holder of the rental right (sections 17, 77 (2) sentence 1 and sections 85 and 94) required for rental after this date is deemed to have been given. The lessor must pay each of these rightholders equitable remuneration; section 27 (1) sentence 2 and 3 in respect of the claims of authors and performers and section 27 (3) applies accordingly. Section 137d remains unaffected.

(3) Where a video or audio recording which was acquired or entrusted to a third person for rental purposes before 30 June 1995 was rented out between 1 July 1994 and 30 June 1995, then, applying subsection (2) sentence 2 accordingly, a right to remuneration exists to this rental.

(4) Where an author granted an exclusive right of distribution before 30 June 1995, the grant also applies to the rental right. Where a performer participated in the production of a cinematographic work prior to this date or consented to the use of a performance in the production of a cinematographic work, his or her exclusive rights are deemed to have been transferred to the producer of the film. If the performer consented to the fixing of his or her performance on audio recording mediums or to the reproduction prior to this date, the grant is also considered as constituting a transferral of the right of distribution, including rental.

Section 137f Transitional provisions in implementation of Council Directive 93/98/EEC

(1) If, by application of this Act in the version applicable as from 1 July 1995, the term of protection of a previously accruing right is curtailed, the protection expires upon the expiry of the term of protection in accordance with the provisions applicable up until 30 June 1995. In all other cases, the provisions of this Act concerning the term of protection in the version applicable as from 1 July 1995 also apply to works and related rights whose protection had not yet expired on 1 July 1995.

(2) The provisions of this Act in the version applicable as from 1 July 1995 also apply to works whose protection under this Act expired before 1 July 1995 but which continues to exist under the law of another Member State of the European Union or of a Contracting Party of the Agreement on the European Economic Area at that point in time. Sentence 1 applies accordingly to the related rights of the editor of posthumous works (section 71), the performer (section 73), the producers of audio recordings (section 85), of broadcasting organisations (section 87) and producers of films (sections 94 and 95).

(3) Where, under subsection (2), the protection of a work is revived within the territory to which this Act applies, the author is entitled to the revived rights. An act of use begun before 1 July 1995 may, however, be continued to the extent provided for. Equitable remuneration is to be paid for the use from 1 July 1995 onwards. Sentences 1 to 3 apply accordingly to related rights.

(4) Where a right of use in a performance which is still protected under this Act is granted or transferred to another before 1 July 1995, then, in cases of doubt, the grant or transfer also extends to the period by which the term of protection was extended. In the case referred to in sentence 1, equitable remuneration is to be paid.

Section 137g Transitional provisions in implementation of Directive 96/9/EC

(1) Section 23 (2), section 53 (5), section 55a and section 63 (1) sentence 2 also apply to database works created before 1 January 1998.

(2) The provisions of Part 2 Division 6 also apply to databases produced between 1 January 1983 and 31 December 1997. In these cases, the term of protection commences on 1 January 1998.

(3) Sections 55a and 87e do not apply to contracts concluded before 1 January 1998.

Section 137h Transitional provisions in implementation of Council Directive 93/83/EEC

(1) Section 20a only applies to contracts concluded before 1 June 1998 as from 1 January 2000, insofar as they expire after that date.

(2) Where a contract on the joint production of a video or audio recording concluded before 1 June 1998 between several producers at least one of whom is a national of a Member State of the European Union or a Contracting Party of the Agreement on the European Economic Area provides for the geographical division of the broadcasting right amongst the producers without differentiating between satellite broadcast and other types of broadcast and if the satellite broadcast by one producer of the jointly produced production would prejudice the exploitation of the exclusive rights of another producer limited in respect of place or language, the satellite broadcast is permitted only if the holder of these exclusive rights has consented thereto.

(3) Section 20b (2) applies only insofar as the contract on the granting of the cable retransmission right was concluded after 1 June 1998.

Section 137i Transitional provisions regarding Act to Modernise the Law of Obligations ( Gesetz zur Modernisierung des Schuldrechts )

Article 229 section 6 of the Introductory Act to the Civil Code ( Einführungsgesetz zum Bürgerlichen Gesetzbuche ) applies, with the proviso that section 26 (7), section 36 (2) and section 102 in the version applicable until 1 January 2002 are equivalent to the provisions of the Civil Code on the limitation period in the version applicable until 1 January 2002.

Section 137j Transitional provisions occasioned by implementation of Directive 2001/29/EC

(1) Section 95d (1) applies to all works and other protected subject matter put into circulation for the first time as from 1 December 2003.

(2) The provision in this Act on the term of protection for producers of audio recordings in the version applicable as from 13 September 2003 also applies to related rights the protection of which has not yet expired on 22 December 2002.

(3) If, under subsection (2), the protection of an audio medium is revived, the producer of the audio recording is entitled to the revived rights.

(4) If, before 13 September 2003, a right of use in an audio recording still protected under this Act had been granted or transferred to another, then, in cases of doubt, the grant or transfer, in the event of an extension of the term of protection provided under section 85 (3), also applies to this period. In the case referred to in sentence 1, equitable remuneration is to be paid.

Section 137k (repealed)

Section 137l Transitional provisions for new types of use

(1) Where, between 1 January 1966 and 1 January 2008, the author has granted to another all essential rights of use, exclusively as well as without limitation of place and time, the rights of use which were not known at the time the contract was concluded are deemed also to have been granted to the other person, insofar as the author does not indicate to the other person that he or she objects to such use. In respect of types of use which were already known on 1 January 2008, the objection may be made only within one year. In all other cases, the right of objection expires after three months have elapsed since the other person sent the author, at the address last known to the sender, notification concerning the intended commencement of the new type of use of the author’s work. Sentences 1 to 3 do not apply to rights of use which have become known in the meantime and which the author has already granted to a third person.

(2) Where the other person has granted a third person all the rights of use which they themselves were originally granted, subsection (1) applies accordingly to such third person. Where the author objects vis-à-vis the contracting party with whom he or she originally contracted a contract, such contracting party is to give the author, without delay, all the information required about the third person.

(3) The right of objection under subsections (1) and (2) does not apply where the parties have reached an express agreement regarding a type of use which has become known in the meantime.

(4) If there is consolidation of more than one work, or more than one contribution to a work, into one entity which can, in the new type of use, be used appropriately only in circumstances where there is exploitation of all the works or contributions to a work, then the author may not exercise his or her right of objection contrary to good faith.

(5) The author is entitled to separate equitable remuneration where the other person commences a new type of use pursuant to subsection (1) which was still unknown at the time the contract was concluded. Section 32 (2) and (4) applies accordingly. Claims may be asserted only through a collecting society. Where the other contracting party has transferred the right of use to a third person, the third person is liable for remuneration upon commencement of the new type of use of the author’s work. The liability of the other person does not apply.

Section 137m Transitional provision occasioned by implementation of Directive 2011/77/EU

(1) The provisions concerning the term of protection under sections 82 and 85 (3) and concerning the rights and claims of the performer under section 79 (3) and section 79a apply to recordings of performances and audio mediums whose term of protection for the performer and producer of the audio medium had not yet expired on 1 November 2013 in accordance with the provisions of this Act in the version applicable up until 6 July 2013 and to recordings of performances and audio mediums created after 1 November 2013.

(2) Section 65 (3) applies to musical compositions with text whose musical composition or text was protected in at least one Member State of the European Union on 1 November 2013 and for musical compositions with text created after that date. Where the protection of the musical composition or of the text is revived in accordance with sentence 1, the revived rights are accorded the author. However, any act of use commencing before 1 November 2013 may be continued in the context provided for. Equitable remuneration is to be paid for any use after 1 November 2013.

(3) Where a transfer agreement was concluded between a performer and a producer of an audio medium before 1 November 2013, then in the case of the extension of the term of protection the transfer extends to this period, unless there are clear, contractual indications to the contrary.

Section 137n Transitional provision occasioned by implementation of Directive 2012/28/EU

Section 61 (4) applies only to holdings bequeathed to the institution using them before 29 October 2014.

Section 137o Transitional provision regarding Act to Align Copyright Law with the Current Demands of the Knowledge-based Society ( Urheberrechts-​Wissensgesellschafts-​Gesetz )

Section 60g does not apply to contracts concluded before 1 March 2018.

Section 137p Transitional provision occasioned by implementation of Directive (EU) 2019/789

(1) Section 20b only applies to contracts relating to retransmissions which are not effected by means of cable systems or microwave systems if the contract was concluded as from 7 June 2021.

(2) Section 20c applies as from 7 June 2023 to contracts relating to additional online services concluded before 7 June 2021.

(3) Section 20d applies as from 7 June 2025 to contracts relating to direct injection concluded before 7 June 2021.

Section 137q Transitional provision on publishers’ participation

Section 63a (2) and (3) applies to income which collecting societies receive as from 7 June 2021.

Section 137r Transitional provision on protection of publishers of press publications

The provisions of this Act relating to the protection of publishers of press publications (sections 87f to 87k and section 127b) do not apply to press publications which were first published before 6 June 2019.

Division 3 Final provisions

Section 138 Register of anonymous and pseudonymous works

(1) The Patent Office is responsible for keeping the register of anonymous and pseudonymous works in respect of the entries to be made in accordance with section 66 (2) sentence 2. The Patent Office effects the entries without examining the applicant’s authorisation or the correctness of the facts registered for entry.

(2) If the entry is refused, the applicant may apply for a court decision. The decision is taken by reasoned order to be issued by the higher regional court in whose jurisdiction the Patent Office is located. The application must be made in writing to the higher regional court. The decision of the higher regional court is final. In all other cases, the provisions of the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction apply accordingly in respect of the court proceedings.

(3) The entries are published in the Federal Gazette. The applicant is required to pay the costs of the publication in advance.

(4) Permission to inspect the register is to be granted to any person. Extracts from the register are issued upon request.

(5) The Federal Minister of Justice and Consumer Protection is authorised, by statutory instrument, to

1.  issue provisions concerning the form of the application and the maintenance of the register,

2.  order the imposition of costs (fees and expenses) to cover administrative costs for the entry, the issuing of a certificate of entry and the issuing of other extracts and their certification, as well as provisions concerning the debtor of the costs, the due date for payment of the costs, the obligation to pay costs in advance, exemptions from payment of costs, the limitation period, the procedure for the fixing of costs and legal remedies against the fixing of costs.

(6) Entries made with Leipzig City Council in accordance with section 56 of the Act on Copyright in Works of Literature and of Musical Art of 19 June 1901 remain effective.

Section 138a Data protection

Insofar as the register of anonymous and pseudonymous works contains personal data, the following does not apply:

1.  the right of access pursuant to Article 15 (1) (c) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1; L 314, 22.11.2016, p. 72),

2.  the notification obligation pursuant to Article 19 sentence 2 of Regulation (EU) 2016/679 and

3.  the right to object pursuant to Article 21 (1) of Regulation (EU) 2016/679.

The right to obtain a copy pursuant to Article 15 (3) of Regulation (EU) 2016/679 is deemed to be satisfied where the data subject has been granted inspection of the register of anonymous and pseudonymous works of the German Patent and Trade Mark Office.

Section 139 Amendment to Code of Criminal Procedure

Section 140 Amendment to Act concerning Universal Copyright Convention of 6 September 1952 ( Gesetz über das am 6. September 1952 unterzeichnete Welturheberrechtsabkommen )

Section 141 Repealed provisions

Section 142 Evaluation

Four years after the entry into force of the Act to Align Copyright Law with the Current Demands of the Knowledge-based Society, the Federal Government is to submit a report to the Bundestag on the effects of Part 1 Division 6 Subdivision 4.

Section 143 Entry into force

(1) Sections 64 to 67, 69, 105 (1) to (3) und section 138 (5) enter into force on the day following promulgation of this Act.

(2) In all other respects, this Act enters into force on 1 January 1966.

Annex (to section 61a) Sources for diligent search

1. For published books:

a) the catalogue of the German National Library and the library catalogues and key word lists kept by libraries and other institutions;

b) information supplied by publishers’ and authors’ associations, in particular the Register of Books in Print (VLB);

c) existing databases and registers, Writers, Artists and their Copyright Holders (WATCH) and the ISBN (International Standard Book Number);

d) the databases of the relevant collecting societies, in particular those collecting societies entrusted with asserting rights of reproduction, such as VG Wort’s database;

e) sources bringing together several databases and registers, including the Joint Authority File (GND), Virtual International Authority Files (VIAF) and Accessible Registries of Rights Information and Orphan Works (ARROW);

2. For newspapers, magazines, trade journals and periodicals:

a) the German ISSN (International Standard Serial Number) – Centre for Regular Publications;

b) indexes and catalogues of library holdings and collections, in particular the catalogue of the German National Library and the Newspaper Database (ZDB);

c) depositories of officially deposited obligatory copies;

d) publishers’ associations and authors’ and journalists’ associations, in particular the Register of Newspapers in Print (VLZ), the Register of Books in Print (VLB), Banger Online, STAMM and pressekatalog.de;

e) the databases of the relevant collecting societies, including those collecting societies entrusted with asserting rights of reproduction, in particular VG Wort’s database;

3. For visual works, including artistic works, photographic works, illustrations, design and architectural works, as well as their drafts and other such works contained in books, magazines, newspapers or other works:

a) the sources referred to in nos. 1 and 2;

b) the databases of the relevant collecting societies, in particular of the collecting societies for artistic works, including the collecting societies entrusted with asserting rights of reproduction, such as VG BildKunst’s database;

c) the databases of photographic agencies;

4. For cinematographic works, as well as for visual mediums and audio and visual mediums on which cinematographic works have been recorded, and for audio mediums:

a) the depositories of officially deposited obligatory copies, in particular the catalogue of the German National Library;

b) information provided by producers’ associations;

c) information provided by the film boards of the Federation and Länder ;

d) the databases of institutions and national libraries active in the field of cinematographic and audio heritage, in particular the Association of Film Archives, the Federal Archive, the Foundation of German Film Archives, the German Film Institute (www.filmportal.de database and catalogue), the DEFA Foundation and the Friedrich Wilhelm Murnau Foundation, and the catalogues of the State Libraries in Berlin and Munich;

e) databases with relevant standards and identifiers such as the ISAN (International Standard Audiovisual Number) for audio-visual material, the ISWC (International Standard Music Work Code) for musical works and the ISRC (International Standard Recording Code) for audio mediums;

f) the databases of the relevant collecting societies, in particular for authors, performers and producers of audio mediums and cinematographic works;

g) the performance of co-authors and other information on the work’s packaging or in its opening or closing credits;

h) the databases of other relevant associations representing certain categories of rightholders, such as associations of film directors, screenwriters, film music composers, composers, theatre publishing houses, theatre and opera associations;

5. For holdings which have not been published or broadcast:

a) current and original owners of the work piece;

b) national registers of estates (Central Database of Estates and Kalliope);

c) finding aids in the national archives;

d) museum inventory lists;

e) credit agencies and telephone books.

• zum Seitenanfang
• Datenschutz
• Barrierefreiheitserklärung
• Feedback-Formular
• Druckansicht

Copyright—Germany—Q&A guide

Published by a lexisnexis ip expert.

This Practice Note contains a jurisdiction-specific Q&A guide to copyright in Germany published as part of the Lexology Getting the Deal Through series by Law Business Research (published: August 2022).

Authors: Meissner Bolte—Oliver Nilgen

1. What is the relevant legislation?

The relevant German statutes in the copyright area are:

the Act on Copyright and Neighbouring Rights of 9 September 1965 (the Copyright Act), governing the requirements for the protection of works and contributions by performing artists and other contributions enjoying neighbouring rights protection, as well as the scope and infringement of such rights;

the Act on Copyright for Works of Fine Arts and Photography of 9 January 1907; and

the Act on the Management of Copyright and Related Rights by Collecting Societies, governing the legal framework for the operation of collection societies under German law.

2. Who enforces it?

German copyright law grants the author exclusive rights to exploit their work.

The exclusive rights protected by the German copyright law will be enforced by the responsible civil courts.

As far as the German copyright law also deals with

Access this content for free with a 7 day trial of LexisNexis and benefit from:

• Instant clarification on points of law
• Smart search
• Workflow tools
• 36 practice areas

** Trials are provided to all LexisNexis content, excluding Practice Compliance, Practice Management and Risk and Compliance, subscription packages are tailored to your specific needs. To discuss trialling these LexisNexis services please email customer service via our online form. Free trials are only available to individuals based in the UK and selected UK overseas territories and Caribbean countries. We may terminate this trial at any time or decide not to give a trial, for any reason. Trial includes one question to LexisAsk during the length of the trial.

Get your quote today and take step closer to being able to benefit from:

Get a lexisnexis quote.

* denotes a required field

To view the latest version of this document and thousands of others like it, sign-in with LexisNexis or register for a free trial.

Existing user? Sign-in CONTINUE READING CONTINUE READING GET A QUOTE

Key definition:

Requirements definition, what does requirements mean.

A DCO should include “Requirements” to which the development authorised by the DCO is to be subject. Similar to planning conditions, a requirement specifies the matters for which detailed approval needs to be obtained before the development can be lawfully begin.

Popular documents

SIAC—background to and structure of the institution

SIAC—background to and structure of the institutionCORONAVIRUS (COVID-19): Many arbitral organisations have responded to the coronavirus pandemic with practical guidance and/or changes to their usual procedures and ways of working. For information on how this content and relevant arbitration

Retirement Annuity Contracts (RAC)—older types of personal pension schemes

Retirement Annuity Contracts (RAC)—older types of personal pension schemesFORTHCOMING DEVELOPMENT 1: In the Spring Budget of 15 March 2023, the Chancellor announced the removal of the lifetime allowance charge with effect from 6 April 2023, pending the full abolition of the lifetime allowance

Understanding the tax disclosure in a fund Private Placement Memorandum (PPM)

Understanding the tax disclosure in a fund Private Placement Memorandum (PPM)To seek out investors, a private equity fund will use a private placement memorandum (PPM) as its main marketing document. The content of a PPM is largely governed by regulatory law. For a tax lawyer, the PPM is a useful

Collaboration agreement

Collaboration agreementThis Agreement is made on [date]Parties1[insert name] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at OR [insert address] ([Party A]); and2[insert name] of OR a company incorporated in [England and

0330 161 1234

• International Sales(Includes Middle East)
• Latin America and the Caribbean
• Netherlands
• New Zealand
• Philippines
• South Africa
• Switzerland
• United States
• Research & Reports
• LexTalk Forum

Popular Links

• Supplier Payment Terms
• Partner Alliance Programme

HELP & SUPPORT

• Legal Help and Support
• Tolley Tax Help and Support
• Privacy Policy
• Cookie Settings
• Terms & Conditions
• Data Protection Inquiry
• Protecting Human Rights: Our Modern Slavery Agreement

Act on Copyright and Related Rights (Copyright Act, as amended up to Act of September 1, 2017)

• Berne Convention (September 9, 1886)
• Universal Copyright Convention 1952 (September 6, 1952)
• Agreement on the European Economic Area (May 2, 1992)

German copyright law

In the following, German copyright law will be briefly explained using the example of music.

According to Section 7 UrhG, the author is the creator of the work. In music, a distinction is made between the composer and the lyricist. These can be different persons, but often it is only one person who composes a song melody and writes the lyrics to it.

If a song is a personal intellectual creation, it is called a work (§ 2 UrhG). It does not have to be absolutely new (so-called “double creation”), but as a rule a certain individuality is required. This means that the work must stand out from the mass of the everyday. The requirements in the popular music sector are not very high here; the so-called “protection of small coins” applies.

3.) Origin and duration of copyright

Copyright arises with the creation of the work. Therefore, no formalities are necessary, such as  

registration. According to Section 64 UrhG, copyright expires 70 years after the death of the author, so it is heritable.

4.) Work protection

There are several ways to protect your songs. However, this does not prevent someone from using a work without authorisation. Rather, work protection serves to prove authorship in the event of a legal dispute.

a) Sending by e-mail

Many artists send their own songs to themselves by e-mail. This is by far the cheapest option, but in the event of a serious case the evidentiary value is low due to the many possibilities of manipulation.

b) Sending by registered mail

It is also comparatively cheap to send yourself a data carrier (e.g. CD-Rom) with the songs copied on it in a sealed envelope by registered mail with advice of receipt. The value of the evidence is somewhat higher, but the songs are not protected against loss.

c) Internet providers

In the meantime, there are also many providers on the Internet who offer song protection. One example is www.songprotection.org, which, according to its own information, works together with legal authorities (i.e. lawyers).

d) Deposit with a lawyer / notary

A deposit with a lawyer or notary is the most expensive option, but in the event of an emergency it has the highest probative value in court.

5.) Difference between co-authors and processors

The co-authors (Section 8 UrhG) create a work jointly. The arranger (Section 3 UrhG), on the other hand, changes an already existing work. This distinction is important for GEMA registration, among other things.

6.) Adaptation / Free use / Quotation / Plagiarism

A) adaptation.

An adaptation is a transformation of a work which is itself creative. A copyright is therefore also created in the adaptation. According to Section 23 UrhG, the consent of the author of the adapted work is required if the adaptation is to be published. Thus, anyone may adapt a copyrighted work without permission as long as he or she does not publish the adaptation.

b) Free use

The opposite of adaptation is free use under Section 24 UrhG. A use is free if “in view of the peculiarity of the new work, the borrowed personal features of the protected work fade away”. Example: Transfer to another artistic genre, e.g. pure setting of a linguistic work to music. However, according to Section 24 (2) UrhG, the so-called “rigid melody protection” applies. This means that the melody may not be recognisably taken from a used work.

c) Quotation

A quotation is when individual passages of a musical work are used in another musical work (Section 51 No. 3 UrhG). It must be made the subject of an intellectual discussion. The prerequisite is therefore that the quoted work itself is eligible for copyright protection; a mere adoption of foreign parts of a work is no longer covered by the freedom to quote. Individual passages may be quoted in music, but not too often. Thus, the constant repetition of a foreign melody sequence is no longer permissible, as the scope required by the purpose is exceeded.

d) Plagiarism

Plagiarism is the altered or unaltered copying of a copyrighted work or part of a work while claiming authorship.

7.) Barriers to copyright.

The most important limitations are: Freedom of citation (see above), gratuitous public reproduction (e.g. at social events) as well as reproductions for one’s own private or scientific use (Section 53 UrhG). In the case of reproduction, the author receives remuneration, which is collected through the levy on devices and blank media. In the case of private copying, no effective copy protection mechanisms may be circumvented without the consent of the right holder (Section 95a UrhG). The exact number of private copies permitted is not specified by law and is therefore disputed.

8.) The performing artist

In music, a performing artist is the person who performs a work. This can be either live on stage or in the studio. According to §§ 73 ff. UrhG, the performing artist also has his or her own rights, the so-called ancillary copyrights. These include the right to record his or her performance on visual or audio media and the right to exploit these recordings (Section 77 UrhG). According to the revised Section 82 UrhG, which entered into force on 1 November 2013, neighbouring rights expire 70 years after publication or performance (previously: 50 years). Pursuant to Section 79 UrhG, large parts of the regulations for authors regarding the granting of rights are to be applied accordingly to performing artists.

9.) Record producer

The producer of records has his own rights, for example, according to § 85 UrhG he is entitled to the exploitation rights in the phonograms produced by him. These rights also constitute neighbouring rights. If a band records songs in a studio at its own expense, it is also a producer of phonograms in the legal sense.

10.) The rights of the author

The author has both moral rights and exploitation rights.

a) Moral rights

This means the protection of the moral interests of the author. The moral rights always remain with the author. These are mainly regulated in §§ 12 – 14 UrhG:

• § 12 UrhG: Right of publication  
• § 13 UrhG: Recognition of authorship  
• § 14 UrhG: (protection against) distortion

b) Exploitation rights

In contrast to moral rights, exploitation rights may be granted to third parties. The following exploitation rights are of importance to the author of music:

• § 16 UrhG:       Right of reproduction (e.g. reproduction of CDs)  
• § 17 UrhG:        Right of distribution (e.g. sale of cds)  
• § 19 UrhG:        Right of performance (e.g. concert performance)  
• § 19a UrhG:      Right of making available to the public (e.g. offering on online platforms)  
• § 20 UrhG:        Broadcasting right (e.g. broadcast by radio or television)  
• § 20b UrhG:      Cable retransmission (e.g. television broadcast is retransmitted by companies such as Kabel Deutschland through the German cable network)
• § 21 UrhG:        Right of communication by means of visual or audio carriers (e.g. playing Cds at public events)  
• § 22 UrhG:        Right of reproduction by radio broadcasting and by making available to the public (e.g. playing music in public places such as department stores etc.)

11.) Purpose transfer doctrine

According to Section 31 (5) UrhG, the so-called “purpose transfer doctrine” applies. This means that the scope of the right of use is determined by the purpose intended by the contractual grant if the rights of use are not individually designated. In case of doubt, the rights remain with the author.

12.) Fairness Clause

Under Section 32a UrhG the author is entitled to fair remuneration if the agreed consideration is conspicuously disproportionate to the income and benefits derived from the use of the work.

13.) Claim in case of infringement

In the event of an infringement of copyright, the right holder may, pursuant to Section 97 UrhG, claim removal and injunction of the infringement as well as damages. Fault is not necessary for the claim for removal and injunction. Damages, on the other hand, can only be claimed if the infringement was unlawful and culpable. The amount of damages is usually calculated according to the licence analogy.

Philipp Beck Lawyer / Specialist lawyer for copyright and media law Rote Str. 14 D-24937 Flensburg

Tel.: +49 (0)461 31551 632 Fax: +49 (0)461 999 355 59 Mobile: +49 (0)163 386 0500

• Advanced search
• Aerospace, Defense, and Government Services
• Automotive and Mobility
• Manufacturing and Industrials
• Energy and Natural Resources
• Financial Institutions
• Life Sciences and Health Care
• Private Capital
• Real Estate
• Sports, Media and Entertainment
• Technology and Telecoms
• Transportation and Logistics

Corporate & Finance

• Banking and Loan Finance
• Business Restructuring and Insolvency
• Capital Markets
• Corporate Governance and Public Company Representation
• Digital Assets and Blockchain
• Infrastructure, Energy, Resources, and Projects
• Leveraged and Acquisition Finance
• Mergers and Acquisitions
• Private Equity, Venture Capital and Investment Funds
• Real Estate Investment Trusts (REITs)
• Transfer Pricing

Global Regulatory

• Administrative and Public Law
• Antitrust and Competition
• Communications, Internet, and Media
• Energy Regulatory
• Environment and Natural Resources
• Financial Services
• Government Contracts and Public Procurement
• Government Relations and Public Affairs
• Immigration
• International Trade and Investment
• Medical Device and Technology Regulatory
• New Nuclear
• Pharmaceuticals and Biotechnology Regulatory
• Privacy and Cybersecurity
• Space and Satellite
• Strategic Operations, Agreements and Regulation
• Transportation Regulatory

Intellectual Property

• Domain Names
• IP and Technology Transactions
• IP Enforcement
• Trade Secrets and Confidential Know-how
• Trademarks and Brands
• Unfair Competition

Litigation, Arbitration, and Employment

• Business and Human Rights
• Construction and Engineering
• Corporate and Securities Litigation
• International Arbitration
• Investigations, White Collar, and Fraud
• Products Law
• Risks, Disputes, and Litigation
• Comparative guides
• Engage Premium
• Hit ENTER to search in content
• The end of an odyssey: The German Act to adapt copyright law to the requirements of the Digital Single Market

The end of an odyssey: The German Act to adapt copyright law to the requirements of the Digital Single Market

Share by email, get qr code.

The German Act to adapt copyright law to the requirements of the Digital Single Market will enter into force on 7 June 2021 – as the first national transposition of the Digital Single Market Directive (“DSM Directive”). It will result in major amendments of German Copyright law and is the attempt to not only unite conflicting interests of rights holders, authors and internet users but also to adjust the partially outdated German copyright law to the digital age. As a result, a huge variety of partly controversially discussed new provisions and amendments will be implemented. We have looked into it and share with you some of the highlights of the new regulation.

• Platform liability: the new German Copyright Service Provider Act (“Urheberrechts-Diensteanbieter-Gesetz“)
• The new press publishers' related rights
• A modern copyright law

The German draft of the Act to adapt copyright law to the requirements of the Digital Single Market (see here , only available in German) was passed by the German parliament (“Bundestag”) on 20 May 2021 and is expected to enter into force  on 7 June 2021. It transposes  not only the DSM Directive but also the Online SatCab Directive. The most impactful  change in national law will be based on the controversially discussed Art. 17 DSM Directive (see our previous blogs on the controversies around upload filters here , here and here ).

Platform liability: the new German Copyright Service Provider Act (“Urheberrechts-Diensteanbieter-Gesetz“)

For the transposition of Art. 17 DSM Directive into national law, a whole new law - the Copyright Service Provider Act - will come into force in Germany on 1 August 2021. A working translation of the Government draft can be found here .

The core provisions of the new bill encompass, inter alia , the direct liability of content sharing platforms for the dissemination of copyrighted content on their platforms, the remuneration claim of authors against platforms for the dissemination of their content and the controversial de minimis provision according to which certain use of short pieces of copyrighted content is presumed to be permissible. That said, the de minimis presumption  won’t  apply to live video footage – meaning that uploads of short sequences of live sport or music events would not be covered by it. The extent to which the de minimis rule will have a practical impact is questionable, as no other European country has adopted a similar rule. It is thus quite possible that the affected platforms will adopt a Europe-wide uniform approach suited to the cross-border nature of online content when adjusting their workflows to the regulatory changes,

The new German Copyright Service Provider Act is still widely discussed and criticized by all stakeholders. While the right holder industry considers itself to be underprivileged and disempowered, organizations fighting for digital civil liberties criticize reduction of the hurdle for a de minimis use and the expected pressure to use upload filters. As we have already reported ( here ), some groups have already indicated that they are willing to challenge this before the German Constitutional Court.

Another contentious aspect is the - as yet open - question over which platforms are affected by the new bill. Larger content-sharing platforms are clearly covered but for smaller platforms or share hosting providers the applicability of the Act remains to be determined by the courts.

Further disputes regarding the implementation of the requirements, especially regarding sufficient upload filter technology or licensing efforts by the platforms, will also have to be ruled by the CJEU. There may be further clarity on these aspects soon. While the EU Commission’s Guidelines to Art. 17 DSM-Directive are still expected to be published “in the near future”, the Opinion on the annulment proceedings against Art. 17 DSM-Directive filed by Poland is expected on 15 July (see here ).

The new press publishers' related rights

As another central aspect of the upcoming copyright law reform, a new related right for press publishers will be added to the German Act on Copyright and Related Rights. Following a statement of the German Federal Ministry of Justice and Consumer Protection, the new provisions acknowledge the economic, organizational and technical efforts of press publishers and journalists. Publishers will further be participating in compensation for “legally permitted use”. German copyright law had actually already included corresponding provisions since 2013, but these had been declared null and void by the CJEU in 2019 due to formal mistakes in the legislative process (see here ).

The new rights of press publishers come with certain restrictions. For instance,  the use of hyperlinks to a press release or the use of “single words or very short excerpts of a press release” will still be permissible. So far it remains unclear what constitutes such “very short excerpts”, especially after the removal of certain clarifications included in previous drafts of the bill.

The new bill will also contribute to a more innovative use of copyrighted content. It will include copyright exceptions for text and data mining, which allow the reproduction of copyrighted work under certain conditions. Text and data mining refers to technologies used to automatically analyze digital content in order to extract information. It is therefore deployed in the context of artificial intelligence and machine learning by research and by commercial institutions.

The implementation of the opportunity to grant extended collective licenses under Art. 12 DSM-Directive is also a new tool in the German copyright law tool box. It is inspired by Scandinavian examples and can be used to facilitate extensive digitalization processes. This provision could also potentially play a decisive role in licensing efforts of platforms.

Further amendments include the withdrawal of copyright protection for reproductions of public domain visual works, new regulations on the online distribution of television and radio programs, the implementation of a general permission for the use of copyrighted works for the purposes of caricature, parody and pastiche and finally, the amendment of national law in order to comply with the ruling of the CJEU in Pelham et al (see here and here ). In Pelham, the CJEU ruled on the admissibility of sampling, declaring it permissible when the original work is no longer recognizable. In doing so, the CJEU also declared a German standard incompatible with European Union law.

The Act to adapt copyright law to the requirements of the Digital Single Market will result in the largest reform of German copyright law of the last 20 years. It therefore comes as no surprise that most of the new provisions were highly disputed and are still criticized although the legislation process has been nearly completed.

Since 7 June 2021 is right around the corner, our focus shifts to the practical  implementation and actual impact the new bill will have. As usual, the transformation period will be accompanied by a degree of  uncertainty regarding the applicability and legal consequences of the new law, with its large number of rather complex new provisions. In addition, Poland's action for annulment of Article 17 DSM-Directive on the European level is still pending. The decision of the CJEU could – in a worst case scenario – render all national transpositions of Art. 17 DSM-Directive obsolete and restart the legislative process afresh.

Finally, on 22 June, the CJEU will rule on the liability of platforms for unlawful actions by users under current law. This ruling will be of utmost importance for all platforms that are not covered by the new regulation. And should the CJEU also declare Art. 17 DSM-Directive invalid, the ruling would even be decisive for all platforms.

We continue tracking all ongoing developments closely – watch out for further updates!

Authored by Morten Petersenn, Anthonia Ghalamkarazideh, Florian Richter, Nils Peters and Engeline Eustrup

On 12 May 2021, the French Government issued a Statutory Instrument  implementing Articles 17 to 23 of the 2019 Copyright Directive in the Digital Single Market.  After several delays due, amongst others, to the Covid-19 lockdown, the Government has decided to legislate by Statutory Instrument.  The implementation of Article 17 has not significantly deviated from the Copyright Directive, although some requirements are scheduled to be further clarified.

Article 17 of the DSM Directive has sparked a passionate and still ongoing debate about copyright protection online. Internet activists have warned of mandatory upload filters as 'censorship machines' and 'the end of the free Internet', and in the same vein, platform providers have objected to proposals for mandatory implementation of content recognition technologies.

German lawmakers have now presented their proposal for adopting Article 17 into German copyright law. In a rather creative attempt, they have tried to find a way to make upload filters " widely expendable ". With this commendable approach, they however may have shot over the mark – since the German draft bill is at risk of being incompatible with EU law.

Lawmakers in the Member States are busy drafting their bills for the  implementation of the DSM Directive in national copyright laws, as the respective deadline of 7 July 2021 is approaching. In this publication we look at the German BMJVs revised and consolidated version of the draft bill.

While further clarity on the Copyright in the Digital Single Market Directive (“DSM Directive”) can be expected at the European level in the next week with the guidelines of the EU Commission on Art. 17 of the DSM Directive and the opinion of Advocate General Saugmandsgaard Øe on the compatibility of Art.17 of the DSM Directive with EU law in July, the German draft of the implementation law continues to cause discussion. Rights holders have already indicated that they will file a constitutional complaint if the current draft is adopted.

German courts have been dealing with the Metall auf Metall [song by the German band Kraftwerk] case for two decades. Recently, the CJEU, too, has had to deal with the case and ruled by judgment of 29 July 2019 (C-476/17) that unless the phonogram producer consents, sampling constitutes an infringement of his rights. However, the CJEU argued, if, by modifying the sample, it can be ruled out that the content is recognizable, there is no infringement of rights.

For more than two decades, the "Metall auf Metall" (metal on metal) case has occupied German and European courts. This was already the fourth time that the German Federal Court of Justice had to deal with the case. However, a final decision was not reached this time either. Rather, the Federal Court of Justice overturned the first appeal judgment in its ruling of 30 April 2020 (I ZR 115/16) and referred the case back to the Hamburg Higher Regional Court.

Delete Comment ?

Are you sure want to delete comment ?

Scan this QR Code to share this content

• Legal Notices
• Terms of Use

This website is operated by Hogan Lovells International LLP, whose registered office is at Atlantic House, Holborn Viaduct, London, EC1A 2FG. For further details of Hogan Lovells International LLP and the international legal practice that comprises Hogan Lovells International LLP, Hogan Lovells US LLP and their affiliated businesses ("Hogan Lovells"), please see our Legal Notices page. © 2022 Hogan Lovells.

Attorney advertising. Prior results do not guarantee a similar outcome.

Kluwer Copyright Blog

German federal court of justice: copyright case law of 2021 – part i.

The implementation transposition of the Copyright Directive 2019/790 (DSMD) in the summer of 2021 represented probably the greatest reform in German copyright law since the German Copyright Act (UrhG) came into force. Germany’s implementation of Art. 17 DSMD was discussed in an earlier blog post by Julian Waiblinger and Jonathan Pukas . The other changes to German copyright law have also been covered in two previous blog posts (see here and here).

That said, 2021 also saw a very active German Bundesgerichtshof (“BGH” – Federal Court of Justice) in the area of copyright law. This article covers the most relevant copyright law decisions of the BGH from that year. Part I addresses decisions in the areas of scope of protection, exploitation rights, exceptions and limitations, and copyright contract law. Part II will cover claims under copyright law and copyright collection societies.

 I. Scope of protection (copyrighted works)

 1. Definition of Work and Work Quality (Section 2(2) UrhG)

In order for a work of applied art to exceed the threshold for protection set out in the UrhG it suffices if it achieves a threshold of originality which would justify people interested in and sufficiently familiar with conceptions of art describing it as an “artistic” creation. Following the 2013 BGH decision Geburtstagszug , several lower courts afforded copyright protection in the area of applied art despite only a minor degree of individual character. In its recent decision Zugangsrecht des Architekten , the BGH stressed once more that “the threshold of originality required for copyright protection may not be set too low”. For example, for buildings to meet the threshold of originality, the building plans or the building itself must stand out from the mass of everyday building work and not merely be presented as average architecture. Moreover, the BGH stated that the criterion of “artistic creation” did not differ from the requirements set out in the CJEU case law in “Cofemel” ( C-683/17 ) or “Brompton” ( C-683/18 ).

  2. Official works (Section 5 UrhG)

New BGH case law was also produced in the area of official works under Section 5 UrhG. Official works are acts of creation such as legislative texts or official notices. Due to the public interest in their being widely disseminated, they are excluded from copyright protection. The background of the relevant decision, Kastellaun , was a collective municipality (in German, a “Verbandsgemeinde”) named Kastellaun that posted to its website a report produced by a private planning consultancy for a party seeking planning permission for the purposes of that planning procedure. One of the key issues in contention was whether the publication of a section of a map contained in the report was permitted under copyright law. The BGH decided that neither the section of the map in the report nor the report itself should be classified as official works under Section 5 UrhG. Even though the work was part of an official procedure, it was not produced by officials in public service themselves or by private persons that had themselves applied to the official body.

 3. Authorship of works (Sections 7-10 UrhG)

As far as questions of authorship or co-authorship are concerned, the most recent decision of the BGH on the 1980s German classic film “Das Boot” (“The Boat”) contains points worthy of mention. In that case, which has been ongoing for many years and across numerous judicial instances, the head cameraman for that film, Jost Vacano, is asserting claims for additional remuneration under Section 32a UrhG, due to the extraordinary success of the film. However, the BGH has repeatedly focussed on a variety of peripheral issues. This is again the case for its decision Das Boot III , which concerns the presumption of authorship set out in Section 10(1) UrhG. Under Section 10(1) UrhG, whoever is designated as author on copies of a published work or on the original of the work of visual art in the customary manner is regarded as the author of the work, unless proven otherwise. The presumption of authorship under Section 10 also applies to film works, as well as now, according to this decision of the BGH, between co-authors. Thus, if more than one person is designated as author on the copy of a work in the customary manner, these persons are accordingly – also in relation to one another – regarded as co-authors of the work until proven otherwise.

 II. Exploitation rights

All new developments in the case law of the BGH on copyright exploitation rights (Sections 15 et seqq. UrhG) are related to the right of communication of a work to the public on the internet, as established in Section 15(2) UrhG. This provision implements, in particular, Article 3(1) of the InfoSoc Directive on communication to the public to persons not present at the place where the communication originates.

In VG Bild-Kunst/SPK , the CJEU ruled that the use of framing technologies only addresses a new public and therefore is only deemed a communication to the public under Article 3(1) of the InfoSoc Directive if technical protection measures are circumvented when linking to the work that has been legally made available to the public. In that context, the CJEU stated that circumvention shall be deemed to have occurred not only where paywalls or similar have been circumvented, but also where effective protection measures, within the meaning of Article 6 of the InfoSoc Directive, are circumvented whose sole purpose is to prevent framing technology, thus leaving the content itself legally freely available on the internet. The BGH has now applied that ruling to a specific case, in its decision Deutsche Digitale Bibliothek II . After reciting the CJEU judgment, it referred the case back to the appeal court.

The BGH Lautsprecherfoto case concerned a product photograph that had initially been made available to the public on an e-commerce platform in violation of copyright (Section 15(2), Section 19a UrhG). After the listing had been deleted, the product photograph only remained available to those who entered a 70-digit URL into their browser, for example if they had made a note of the URL or bookmarked it. The BGH decided there was no public aspect to the communication because the criteria of “a fairly large number of people” was, under any realistic assessment, not met. It was, however, not possible on procedural grounds to address how that ruling would have been affected if the listing – and thus the product photograph – had remained accessible via search engines.

III. Exceptions & limitations (Sections 44a et seqq UrhG)

2021 saw the BGH once more issue judgments concerning exceptions and limitations to copyright. These exceptions and limitations are harmonised in Article 5 of the InfoSoc Directive as well as in other provisions of EU law. In the German UrhG, they are set out in Sections 44a-63.

In its decision Kastellaun , already mentioned above in the section on “Official Works”, the BGH also expressed its position on the scope of the copyright exception provisions set out in Section 45 UrhG (implementation of Article 5(3)(e) of the InfoSoc Directive). That provision allows individual copies of works to be made and communicated to the public for use in proceedings before an official body, a court or an arbitration board. The BGH made it clear that Section 45 UrhG also covers the making available to the public of a statement made in the course of an official planning application under the German Federal Building Act.  However, whether the provisions of the German Federal Building Code were actually relevant, which is necessary, is a matter for the appeal court. The BGH also emphasised the need for a factual and temporal connection to the official proceedings. According to the BGH, once the official proceedings have ended, the act of use covered by Section 45 UrhG is no longer permitted. Finally, the BGH instructed the appeal court to assess whether the requirements of the three-step-test under Article 5(5) of the InfoSoc Directive were met. According to the BGH, the requirements would usually be met in cases like the one at hand. However, after the case was referred back, the prior instance court, the Appeal Court of Zweibrücken, saw the matter differently. That court therefore rejected the application of Section 45 UrhG.

  IV. Copyright contract law

German copyright law stipulates that authors are entitled to appropriate remuneration for every use of their work (Section 32 UrhG). In the event of an unexpected success of a work, its author can even become entitled to a retroactive claim for additional remuneration (Section 32a UrhG; now the implementation of Article 20 of the DSMD). Section 32a UrhG is also known in Germany as the “bestseller paragraph”.

In its decision Das Boot III , the BGH used the opportunity to present the full process for applying the series of tests for authors’ claims for additional retroactive remuneration under the bestseller paragraph (Section 32a UrhG) textbook-like.

In order to determine whether additional remuneration does have to be paid to the author in question, the level of remuneration considered hypothetically appropriate when viewed in hindsight is compared to the remuneration that was actually paid.  If the conclusion drawn from this comparison is that the remuneration was not appropriate, this entitles the author, according to the newest developments in German case law, to bring an action directly for payment of appropriate consideration. The key factor for determining the hypothetically appropriate level of remuneration is the revenues and benefits earned by the author’s contracting partner through their exploitation of the work. In its decision, the BGH restated the importance of these criteria. In the opinion of the court, the appeal court that heard the case in the prior instance made an error in law when assessing whether a disproportionate difference existed, the error being that the appeal court took as the basis for its assessment the full amount of the remuneration actually paid. The BGH reasoned that if the contracting party – as in the case at issue – has granted a variety of exploitation rights to a number of third parties, any assessment as to whether a conspicuous disproportion exists must only take into account that part of the actually paid remuneration which is attributable to the rights exploited by the respective third-party contracting party. Only that part of the remuneration can then be put up against the notional appropriate remuneration, calculated based on the revenues and benefits which the respective contracting partner has earned through its use of the work. Therefore, one can only count in favour of, for example, a contractual partner within the licensing chain that has acquired the television rights, that part of the remuneration paid which was explicitly paid for the television rights in the work. Various approaches can be used to determine what part of the remuneration is attributable in this way.

The BGH also stated that when assessing the extent of any conspicuous disproportion, one may look at the entire relationship of the author to the exploiter. As such, any costs which reduce the profit of the exploiter can also be taken into account. Finally, it is worth mentioning that when answering the question as to what is the level of appropriate remuneration, one can take as an indicative reference point collective remuneration rules, even if they do not directly apply to the case at issue. Collective remuneration rules are contractual agreements between associations of users and associations of authors which set the level of appropriate remuneration for authors within the relationship between the parties. The use, as a point of reference, of collective remuneration rules, which are, strictly speaking, not actually applicable, is now settled case law of the BGH.

Part II of this post will summarise decisions relating to claims under copyright law and collecting societies.

_____________________________

To make sure you do not miss out on regular updates from the Kluwer Copyright Blog, please subscribe here .

Kluwer IP Law

The 2022 Future Ready Lawyer survey showed that 79% of lawyers think that the importance of legal technology will increase for next year. With Kluwer IP Law you can navigate the increasingly global practice of IP law with specialized, local and cross-border information and tools from every preferred location. Are you, as an IP professional, ready for the future? Learn how Kluwer IP Law can support you.

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Save my name, email, and website in this browser for the next time I comment.

• Practical Law

Intellectual Property Rights in Germany: Overview

Practical law country q&a 6-501-7605  (approx. 28 pages), requirements to obtain a patent.

• Involve an inventive activity.
• Are susceptible of industrial application.
• Registration and grant of the patent are required for protection.
• Discoveries, scientific theories, and mathematical methods.
• Aesthetic creations.
• Schemes, rules, and methods for performing mental acts, playing games, or doing business.
• Computer programs.
• Presentations of information.
• The human body in its phases of creation and development, and mere discoveries of one of its elements (isolated body parts or parts generated through technical methods can be patented under strict conditions).
• Inventions the commercial exploitation of which would be contrary to public policy or morality.
• Methods for cloning human beings.
• Methods for changing the genetic identity of the germ line of a human being.
• Use of human embryos for industrial or commercial purposes.
• Methods for changing the genetic identity of animals that are capable of causing animals suffering without substantial medical benefit to man or animal, and animals resulting from such methods.
• Plant or animal varieties, and essentially biological processes for the production of plants or animals.
• Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body. This does not apply to products (in particular substances or compositions) used in relation to any of these methods.

Registering a Patent

Patent registration authority, process and timing.

• The subject matter of the patent is not patentable (see Question 1 ).
• Insufficient (unclear or incomplete) disclosure of the invention.
• Added matter (inadmissible extension of the subject matter compared to the application).
• The essential content of the patent has been taken from the descriptions, drawings, models, implements, or equipment of another person or from a process used by that person without their consent (usurpation, which can only be claimed by the aggrieved party).

Patent Search and Information Facilities

• The DPMA register , which offers free access to publication data and the current legal status of German patents and utility models, including applications.
• The DPMA DEPATISnet database , which contains more than 80 million patent and utility model documents worldwide.
• The EPO European Patent Register , which offers free access to publication data and the current legal status of European patents, including patent applications.
• The EPO ESPACENET database, which offers free access to more than 130 million patent documents worldwide.
• The World Intellectual Property Organization (WIPO) PATENTSCOPE database , which offers free access to millions of patent documents worldwide.

Enforceable Patent Protection Term

Maintaining patents, patent infringement, rights granted by a patent, grounds for patent infringement.

• making, offering, putting on the market, or using a patented product, or importing or possessing the product for such purposes;
• using a patented method or offering the method for use; or
• offering, putting on the market, using, or importing, or possessing for such purposes, a product obtained directly from a patented manufacturing method.
• Indirect or contributory infringement (Article 10, Patent Act). This includes supplying or offering to supply in Germany means relating to an essential element of the invention to exploit the invention in Germany, where the supplier knows or it is obvious that such means are suitable and intended to be used for exploiting the invention.
• Equivalent infringement (Article 9, Patent Act). This occurs where a third party does not use a feature of the claimed invention but an equivalent feature that has the same technical effect and is easy to achieve. Further, the person skilled in the art must understand the patent in a way that the equivalent feature leads to an equivalent solution.

Defences to a Patent Infringement Action

• No infringement.
• private use;
• experimental use; or
• use for making an application for marketing authorisation.
• Private prior use.
• Compulsory licence.
• FRAND defence.
• Exhaustion (the product has been placed on the market in an EU/EEA country where the patent is validated with the consent of or by the patent owner itself).
• First instance: each German Federal State ( Bundesland ) appoints one of its District Courts ( Landgericht ) to deal with patent infringement actions (concentration of courts). Certain states share the same Patent Court.
• Appeal: Courts of Appeal ( Oberlandesgericht ).
• Further appeal: Federal Supreme Court ( Bundesgerichtshof ).
• preliminary injunctions, such as restraining orders, rendering of information, and seizure of goods by the court bailiff (other types of injunctions are available under strict requirements); and
• permanent injunctions.
• Damages (enhanced damages are not available, such as for wilful infringement).
• Rendering of information and accounts.
• Recall of infringing products and removal from the market.
• Destruction of infringing goods.
• Destruction of tools used to produce infringing goods.
• Presentation and inspection of goods.
• Publication of the infringement judgment.
• Reimbursement of statutory legal costs and fees for bringing the action (Article 91, Civil Procedure Code).

Monitoring Patent Infringement

• Periodic review of competitors' products and advertising.
• Periodic searches in databases (see Question 3 ).
• Use of professional monitoring services.

Patent Revocation

Utility models, legal conditions for utility model protection.

• Involve an inventive step (in contrast to an inventive activity that is required for patent protection).
• Are susceptible of industrial application (except for manufacturing or processing methods).

Registration Authority

Utility model search and information facilities, enforceable utility model protection term, maintaining utility models.

• EUR210 for the fourth to sixth year.
• EUR350 for the seventh and eighth year.
• EUR530 for the ninth and tenth year.

Utility Model Infringement

Monitoring utility model infringement.

• Trade Marks

Legal Requirements to Obtain a Trade Mark

• Is capable of being represented in the register in such a way that the competent authorities and the public can clearly and unambiguously identify the subject matter of the protection (Article 8(1), Trade Mark Act). This includes graphics, words (including personal names), designs, letters, numerals, shapes of goods or packaging, and colours (or combinations of colours), and also sounds, videos, or multimedia data.
• Is capable of distinguishing the goods or services of one undertaking from those of other undertakings.
• Does not fall within one of the absolute grounds for refusal (Article 8, Trade Mark Act) (see Question 16 ). However, some of these grounds may be overcome by proving acquired distinctiveness ( Verkehrsdurchsetzung ).

Unregistered Trade Marks

Registering a trade mark, trade mark registration authority, trade mark search and information facilities.

• The DPMA register , which offers free access to publication data and the current legal status of German trade marks, EU trade marks, and international registrations designating Germany, including applications.
• The EUIPO database eSearch , which offers free access to publication data and the current legal status of EU trade marks, including applications.
• Madrid Monitor , which is WIPO's only tool to track the status of international trade mark applications and registrations. The Global Brand Database can be used to conduct a pre-filing search or browse existing trade marks in target markets.
• The TMview database of the European Trade Mark and Design Network, which allows free access to publication data and the current legal status of national trade marks, EU trade marks, and international registrations, including applications.

Grounds for an Authority Refusing to Register a Trade Mark

• Lacks distinctiveness in relation to the goods and services.
• Is purely descriptive.
• Has become customary for describing the goods or services.
• Is capable of misleading the public.
• Is contrary to public policy or morality.
• Has been applied for in bad faith.
• Contains state insignia.
• Is contrary to the protection of traditional wines, traditional specialities guaranteed (TSG), protected geographical indications (PGI), or protected designations of origin (PDO).
• Is identical or confusingly similar to an earlier trade mark which the authority knows to be well-known within the meaning of Article 6bis of the Paris Convention.

Third Party Grounds for Challenging a Trade Mark Application before Registration

• Identical to the earlier mark and registered for identical goods or services.
• Identical or similar to the earlier mark, registered for identical or similar goods or services, and there is a risk of confusion.
• Identical or similar to the well-known earlier mark, registered for different goods or services, and its use is without due cause and takes unfair advantage of, or is detrimental to, the distinctive character or repute of the earlier trade mark.
• Registered for the owner's agent or representative rather than for the owner, without the owner's consent.
• Identical or confusingly similar to the earlier mark that is well-known within the meaning of Article 6bis of the Paris Convention.

Enforceable Trade Mark Protection Term

Maintaining trade marks.

• Turnover and sales figures.
• Volume of business.
• Frequency and duration of use.
• Production and marketing capacity.
• Diversification of the business.
• Nature of relevant goods and services.

Trade Mark Violations

Rights granted by a trade mark, grounds for and elements of trade mark infringement claims.

• Identical to the claimant's trade mark for identical goods or services.
• Identical or similar to the claimant's trade mark, for identical or similar goods or services, and there is a risk of confusion.
• Identical or similar to the claimant's well-known trade mark, for different goods or services, and use of the sign is without due cause and takes unfair advantage of, or is detrimental to, the distinctive character or repute of the claimant's trade mark.
• Whether the sign is used as a trade mark, and therefore as an indication of origin.
• Whether the signs are identical or similar.
• Whether the goods and services are identical or similar.
• Whether there is any danger of confusion.

Other Trade Mark Causes of Action

Defences to trade mark claims.

• Non-infringement.
• Cancellation for non-use.
• Forfeiture of rights (the claimant has known and tolerated the use of the sign for at least five consecutive years).
• Counterclaim for cancellation of the trade mark.
• Request for cancellation.
• use of an identical or similar sign to describe the features and characteristics of goods or services;
• use of an identical or similar sign that is necessary to indicate the intended use of goods and services (in particular, as accessories or spare parts); or
• exhaustion of rights.
• Competition law defence.
• Statute of limitation.
• First instance: District Courts from which each German Federal state can appoint certain courts as exclusively competent.
• Appeal: Courts of Appeal.
• Further appeal: Federal Supreme Court.

Challenging a Trade Mark After Registration

• Non-use (section 49, Trade Mark Act).
• Failure to meet the legal requirements for registration (see Question 12 ).
• Absolute grounds for refusal (statutory exclusions) (see Question 16 ).

Monitoring Trade Mark Infringement

Categories of subject matter eligible for copyright protection.

• Photographs and videos that do not constitute "works."
• Performing artists.
• Phonogram producers.
• Broadcasting companies.
• Producers of databases.
• Media publishers (press).

Legal Requirements to Obtain Copyright Protection

• Work of literature, science, or art (Article 1, Copyright Act).
• Personal intellectual creation (Article 2, Copyright Act).

Copyright Registration

Enforceable copyright protection term, maintaining copyright, copyright search and information facilities, monitoring copyright infringement.

• Regularly train employees on copyright issues.

Copyright Infringement

Rights granted by copyright, grounds for and elements of copyright infringement claims.

• Publication.
• To be named as the author.
• Moral rights (against distortion and other mutilation of the work) (see Question 34 ).
• Duplication.
• Distribution.
• Exhibition.
• Presentation.
• Making available to the public.
• Broadcasting.
• Editing and rearrangement.
• Scientific publications: same as for copyright (see above).
• Photographs: same as for copyright (see above).
• Performers: violations of the right of recognition, moral rights, right to video and audio recording (and to copy and distribute such recording), and right to broadcast.
• Phonogram producers: copying, distributing, or making available to the public.
• Broadcasting companies: distributing or making available to the public.
• Database producers: copying, distributing, or making available to the public.
• Newspaper and magazine publishers: making available to the public.
• Whether there is a protected work.
• The scope of protection of the work.
• Eventually whether the right is infringed.

Defences to a Copyright Infringement Action

• Failure to meet the legal requirements for protection (see Question 25 ).
• Expiry of the term of protection ( see Question 27 ).
• temporary reproduction;
• teaching and educational use;
• quotation; and
• reproduction for private and other personal uses.
• First instance. Specialised chambers of Local Courts ( Amtsgerichte ) when the amount in dispute does not exceed EUR5,000. District Courts when the amount in dispute exceeds EUR5,000. The German Federal States can appoint certain Local or District Courts as competent courts (concentration of courts) (Article 105, Copyright Act).
• Appeal. District Courts hear appeals against judgments of Local Courts. Courts of Appeal hear appeals against judgments of District Courts.

Moral Rights

• Determine whether and how their work is published (right of publication) (section 12, Copyright Act).
• Be identified as the author of the work (recognition of authorship) (section 13, Copyright Act).
• Prohibit the distortion or any other derogatory treatment of their work, which can prejudice their legitimate intellectual or personal interests in the work (distortion of the work) (section 14, Copyright Act).

Registered Design Rights

Basis of registered design protection.

• Consists of features that are solely dictated by their technical function or must be built in a certain way to ensure compatibility with other products (Article 3(1) and (2), Design Act).
• Contrary to public policy or morality (Articles 18 and 3(3), Design Act).
• Makes unlawful use of the signs mentioned in Article 6bis of the Paris Convention (Articles 18 and 3(4), Design Act).

Registering a Design

Design registration authority.

• An invalidity action before the DPMA.
• A counterclaim in infringement proceedings (Article 33(3), Design Act).
• Is not a design within the meaning of Article 1(1) of the Design Act (see Question 35 ).
• Lacks novelty or originality.
• Is excluded from protection under Article 3 of the Design Act (see Question 35 ).
• Infringes work protected by copyright or falls within the scope of an earlier registered design, even if the earlier design was only published after the filing of the challenged design.

Design Search and Information Facilities

• The DPMA register , which has free access to publication data and the current legal status of German designs, including applications.
• The EUIPO database eSearch plus , which has free access to publication data and the current legal status of registered Community designs, including applications.
• The WIPO database HAGUE EXPRESS , which has free access to publication data and the current legal status of international registrations, including applications.
• The European Trade Mark and Design Network DesignView database , which has free access to publication data and the current legal status of national designs, registered Community designs, and international registrations, including applications.

Enforceable Registered Design Right Protection Term

Maintaining design rights, registered design right infringement, rights granted by registered design rights, grounds for registered design right infringement.

• A third party manufactures, offers, puts on the market, imports, exports, or uses a product which contains or uses the registered design, or possesses such a product for these purposes.
• A design produces the same overall impression as the earlier design in the view of an informed user.

Defences to a Registered Design Right Infringement Action

• Counterclaim for invalidity of the registered design.
• Private use for non-commercial purposes (Article 40, Design Act).
• Use for citation or educational purposes (Article 40, Design Act).
• Prior use (Article 41, Design Act).
• Exhaustion of rights (Article 48, Design Act).
• First instance: District Courts from which each German Federal State can appoint certain courts as exclusively competent.
• Appeal: Court of Appeal.

Monitoring Design Infringement

Unregistered designs, basis for protection, legal conditions for unregistered design rights.

• Novel (Articles 4 and 5, Community Design Regulation).
• Original (Articles 4 and 6, Community Design Regulation).
• Has been made available to the public (Article 5(1)(a), Community Design Regulation) (that is, persons operating in the sector concerned).
• Consists of features that depend solely on their technical function (Article 8(1), Community Design Regulation) or depend on their compatibility with other products (Article 8(2), Community Design Regulation).
• Is contrary to public policy (Article 9, Community Design Regulation).

Duration of Unregistered Design Protection

Unregistered design infringement.

• Invalidity of the unregistered design.
• Private use for non-commercial purposes (Article 20, Community Design Regulation).
• Use for citation or teaching purposes (Article 20, Community Design Regulation).
• Prior use (Article 22, Community Design Regulation).
• Exhaustion of rights (Article 21, Community Design Regulation).
• The disputed design was created independently from the unregistered design.

Trade Secrets and Confidential Information

• The information is not commonly known or accessible and is therefore of commercial value.
• The information is subject to appropriate secrecy measures by its lawful owner to keep it secret.
• The lawful owner has a legitimate interest in the secrecy of the information.

Maintaining Trade Secrets and Confidential Information

Monitoring infringement of trade secrets and confidential information.

• Setting up a confidentiality strategy and policy.

Rights Granted

Grounds for unauthorised use.

• Industrial espionage (Article 23(1)(1), Trade Secrets Act).
• Unlawful use and disclosure of trade secrets (Article 23(1) 2 and 3 and Article 23(2) and (3), Trade Secrets Act).
• Non-infringement of statutory provisions.
• State of emergency.
• Compliance with a duty to supply information.
• No trade secret according to the legal requirements, for example because of public availability of the information (see Question 45 ).
• First instance: District Courts from which each German Federal State can appoint certain courts as exclusively competent (Article 15(1) and (3), Trade Secrets Act).
• Further appeal in main actions: Federal Supreme Court.
• Preliminary and/or permanent injunctions.
• Account of profits.

Domain Names

Database rights.

• Database work (Article 4(2), Copyright Act). A collection of works or data, which can also individually be protected by copyright, is a database work if the selection and arrangement itself is a personal intellectual creation and the elements are arranged systematically or methodically and are accessible in some way.
• Database (Article 87a(1), Copyright Act). This is protected as a neighbouring right and is ancillary to the database work protected by copyright. It requires a systematic or methodical arrangement of a collection of works or data and that its acquisition, verification, or presentation requires a substantial investment in terms of its nature or extent. The selection and arrangement does not have to be a personal intellectual creation. The owner of the neighbouring right is the person who has made the investment (Article 87a(2), Copyright Act).
• 70 years from the end of the year of the author's death, for a database work.
• 15 years after publication, for a database.

International IP Treaties

Design rights.

• The Copyright Directive ( (EU) 2019/790 ) is a further step to a modern European copyright law. The German legislator implemented the Directive on 7 June 2021. The same applies to Directive (EU) 2019/789 laying down rules for the exercise of copyright and related rights in respect of certain online broadcasts by broadcasting organisations and the retransmission of television and radio programmes.
• The EU has passed a directive on the protection of persons who report breaches of the Whistleblower Directive ( (EU) 2019/1937 ). It accompanies the Trade Secrets Directive ( (EU) 2016/943 ) and is about to be implemented into German law (decision of parliament pending).
• The Agreement on the Unified Patent Court (UPC) has been signed (but not ratified) by all relevant European countries. This aims to create the first Community patent with a unitary effect throughout the EU and the UPC. Germany ratified the Protocol on the Provisional Application of the UPCA (PAP Protocol) on 27 September 2021.
• An amendment to the Patent Act came into force in August 2021. It addresses, among others , the discussion on a restriction of automatic injunctions to reflect a balance of interest and the synchronisation of infringement proceedings and nullity proceedings.

Contributor Profiles

Prof dr peter ruess, partner, arnold ruess.

• Advising a Fortune 500 food manufacturer on product launches, advertising campaigns, and strategic IP issues.
• Enforcing trade mark rights for a DAX 30 corporation.
• Drafting licensing agreements for several leading trade mark owners (for example, a luxury fashion label and an internationally known automobile brand).
• In-depth experience in co-ordinating IP issues in M&A transactions, recently in two deals in the telecoms sector and one deal in the publishing sector.
• Successful litigation on fundamental advertising issues for a tobacco business client (reaching the Federal Supreme Court).
• Participation in a German key case on internet provider liability.
• Continued strategic IP advice for a global leading consumer goods group, a market leader for game consoles (among others).

Dr Lisa Schneider, Senior Associate

• Advising and representing a patent proprietor in a global ASI-AASI battle (FRAND).
• Advising and representing clients in key life sciences cases (patents).
• Regularly advising and representing national and international companies in patent infringement proceedings, for example in mobile radio technology and pharmaceuticals.
• Advising and representing national and international companies on trade mark and unfair competition matters.

Aylin Gülbol, Associate

• Regularly advising and representing national and international companies in patent infringement proceedings, for example in pharmaceuticals.
• Cross-border - IP&IT

This resource is periodically updated for necessary changes due to legal, market, or practice developments. Significant developments affecting this resource will be described below.

• main content
• main navigation

service navigation and search

German patent and trade mark office.

• DPMA website Information, service und knowledge
• DEPATIS net Database for online searches on patent publications from around the world
• DPMA register Official Publications and Register for patents, utility models, trade marks and designs

Main navigation

• Publications
• Patent Protection
• Good reasons for a Patent Application at the DPMA
• Application
• Examination and Grant
• Opposition and Revocation
• Protection Outside Germany
• Utility Model Protection
• Registration Procedure
• Cancellation Proceedings
• Topographies
• Trade Mark Protection
• Classification
• Examination, Registration and Renewal
• Opposition and Cancellation
• Indications of Geographical Origin
• Trade Mark Protection Abroad
• Design protection
• Examination and Registration
• Invalidity proceedings
• Design Protection Abroad
• DPMAregister
• Classifications
• Data supply services
• Customer Care and Services
• Public Relations

Social Media

• IP rights briefly explained
• File inspection
• Forms and more
• Sign language
• Simple German

Halloween and IP Patents of horror

100 years projection planetarium Reaching for the stars

World of design Who turned the clock?

DPMA register

Official Publications and Register for patents, utility models, trade marks and designs

DEPATIS net

Database for online searches on patent publications from around the world

DPMA direktWeb

Filing trade marks and designs online without signature card

DPMA direktPro

Filing IP applications online with signature card

Watch out for fraudulent invoices: Fraudulent requests for payment by e-mail are again in circulation with changing, falsified sender details of the DPMA office management. The DPMA has already filed a criminal complaint. For more information, see "Misleading requests for payment".

Dpma president receives high-ranking delegation from japan: focus on unitary patent, green transformation technologies inventory and patent examiner exchange, notice of the president of the german patent and trade mark office of 14 july 2023 concerning the revised version of the guidelines for opposition proceedings under trade mark law, designeuropa awards 2023: integrated electric outboard motor, fully automatic espresso coffee machine and a woman who changed the world.

SME information pages

Our information pages for small and medium-sized enterprises (SMEs) will explain why intellectual property rights are important and how to protect intellectual property. They give an overview of information and funding opportunities, show how to enforce intellectual property rights and also how to integrate an IP strategy into corporate policy.

Other duties of the DPMA

• Supervision of collective management organisations (CMOs) and authorised entities
• Arbitration Board under the CMO Act
• Arbitration Board under the Employee Inventions Act
• Patent attorney training
• Register of Out-Of-Commerce Works

Patent information centres: all-round service providers in the field of industrial property protection

The DPMA closely cooperates with patent information centres all over Germany. They offer all those interested in IP comprehensive information on industrial property protection, including initial consultations for inventors, training courses and search support.

DEPATISnet, DEPATISnet, iStock.com/, DPMAregister, DPMA, Citroen Kommunikation, IsTOCK, DPMA, WIPO, iStock.com/catoll, Texas Instruments, DPMA, WIPO, iStock.com/brianajackson, Picture: iStock.com/kritchanut, iStock.com/phototechno, iStock.com/nicoelnino

Directly to

• DPMA newsletters

Feel free to contact our Central Customer Care and Services Tel: + 49 89 2195-1000 E-Mail: [email protected]

• Information on Russia-Ukraine-war
• Online search support
• Warning against misleading requests
• Modernisation of Patent Law
• Reform of European trade mark law
• Tips for your application
• Patent Prosecution Highway
• Autonomous driving

Women in IP - Aachen

Number of the month: Patent applications in Jena far above average

Well protected: Barbie, Ken and diversity

Stephanie Kwolek, inventor of the super fibre

Football and technology

Info pages for independent inventors

You are here:

Footer navigation

• Organisation

Utility Models

Trade marks.

• Press contact
• Press releases
• Press images
• Press mailing list
• Data protection
• Accessibility

• +49 69 71 67 2 67 0
• [email protected]

FORM A COMPANY NOW

REQUEST CALL BACK

FREE CASE EVALUATION

• Copyright Act in Germany

What is the scope of the German Copyright Law?

The German legislation provides for the legal relation between an author and their work. It also protects the author against third parties. Under the German Copyright Act , an author can only be a natural person. This is the main distinction between the German Law on Copyright and other international jurisdictions who also allow companies to register their creations under the copyright legislation . Under the Copyright Law , an author has the following right with respect to their work:

• -          moral rights;
• -          the right to publish the work;
• -          the recognition of authorship;
• -          the right to prohibit any changes to be brought to the creation;
• -          the rights to exploit the work.

The exploitation of the work varies depending on the type of material the author has created and it can grant the following rights:

• -          to reproduce the creation;
• -          to distribute the work;
• -          to exhibit the creation;
• -          to recite, perform or present the work;
• -          to make the work known to the public;
• -          to broadcast the creation by any video or audio means.

An author also has the right to sell their creation under the conditions established by the law. The Copyright Act establishes an author will be compensated for each resale of their work.

Our lawyers can also help you register trademarks in Germany .

Resale rights under the Copyright Act in Germany

The legislation provides for the following rates in the case of resale of copyright protected work:

• -          4% of the selling price for works below 50,000 euros;
• -          3% of the selling price for works evaluated between 50,000 and 200,000 euros;
• -          1% of the selling price for works evaluated between 200,000 and 350,000 euros;
• -          0.5% of the selling price for works evaluated between 350,000 and 500,000 euros;
• -          0.25% of the selling price for works exceeding 500,000 euros.

Also, the total royalty tax paid on the resale of copyrights is capped at 12,500 euros.

If you want more information about the Copyright Law or need assistance with the registration of copyrights, do not hesitate to contact our law firm in Germany .

Our Articles

Company formation in germany +.

• Open a Company in Germany
• Company Liquidation in Germany
• Opening a Business in Germany
• Types of Companies in Germany
• Company Registration in Germany
• Opening a Branch vs. a Subsidiary in Germany
• The Share Capital in Germany
• Starting a GmbH in Germany
• Holding Companies in Germany
• Virtual Office in Germany
• Trade Register in Germany
• Mergers and Acquisitions in Germany
• Setting Up a Sole Trader in Germany
• General Partnerships in Germany
• Setting Up a Mini GmbH in Germany
• Fiduciary Services in Germany
• Opening a Recruitment Company in Germany
• The Joint Stock Company in Germany
• The Limited Partnership in Germany
• German Limited Partnership with a GmbH as General Partner
• Civil Law Partnership in Germany
• Collective Investment Schemes in Germany
• Open a Representative Office in Germany
• Open a SPV Company in Germany
• Free Trade Zones in Germany
• Annual Filing Requirements for German Companies
• Change Your Business Structure in Germany
• Opening a Textile Manufacturing Company in Germany
• How to Open a Restaurant in Germany
• Start a Travel Agency in Germany
• Why Start a FTZ Company in Germany?
• Set Up an IT Company in Germany
• Open an E-Commerce Company in Germany
• Start a Bar in Germany
• Main industries of Germany
• Open a Consulting Company in Germany
• Open a Financial Company in Germany
• Set Up a Shop in Germany
• Open a Foundation in Germany
• Start a Fintech Company in Germany
• Open a Cryptocurrency Company in Germany
• Cryptocurrency Business Ideas in Germany
• Open a Real Estate Business in Germany
• Start a Software Company in Germany
• Set Up a Rental and Leasing Company in Germany
• Open a Company in the Energy Sector in Germany
• Open a Plumbing Business in Germany
• Start a Transporting and Storage Company in Germany
• Open an Advertising and Marketing Company in Germany
• Open a Business for Repair of Transport Equipment in Germany
• Set Up a Franchise Business in Germany

Laws in Germany +

• German Legislation for Foreign Investment
• Commercial Law in Germany
• Employment Law in Germany
• Civil Law in Germany
• Banking Law in Germany
• A Guide to German Courts
• Private Property Laws in Germany
• Family Law in Germany
• Maritime Law in Germany
• Contract Law in Germany
• Competition Law in Germany
• Legislation on Insurance in Germany
• Succession and Inheritance Law in Germany
• Sports Law in Germany
• Divorce in Germany: Division of Assets
• IT Law in Germany
• Education Law in Germany
• Trust Law in Germany
• Data Protection Law in Germany
• Marriage in Germany: Rights and Obligations
• Legislation for Importing Goods in Germany
• GDPR Legislation in Germany

Legal Services in Germany +

• Debt Collection in Germany
• German Double Taxation Avoidance Agreements
• Litigation Attorneys in Germany
• Residence Permit in Germany
• Arbitration in Germany
• Signing a Contract with a German Company
• Business Consulting in Germany
• Intellectual Property in Germany
• Purchase a Property in Germany
• Real Estate Due Diligence in Germany
• Oppose a Trademark in Germany
• Work Permit in Germany
• Immigration to Germany
• Relocation in Germany
• Register a Trademark in Germany
• Estate Planning in Germany
• Notary Services in Germany
• Inheritance in Germany
• Divorce in Germany
• Marriage Registration in Germany
• Embezzlement Lawyers in Germany
• Reserving a Company Name in Germany
• Articles of Association/Bylaws in Germany
• Banking Litigation in Germany
• Payroll in Germany
• Obtain Information about German Companies
• The Power of Attorney in Germany
• Purchasing a Domain Name in Germany
• Legal Requirements for Obtaining Citizenship in Germany
• The Land Registry in Germany
• Obtaining a Visa for Germany
• Insurance Litigation in Germany
• Tax Litigation in Germany
• Company Due Diligence in Germany
• Resolve Property Disputes in Germany
• Legal Services in Hamburg
• Legal Services in Munich
• Restructuring and Insolvency Attorneys in Germany
• Risk Management in Germany
• Resolve Employment Disputes in Germany
• Commercial Litigation in Germany
• Contesting a Will in Germany
• Resolve Intellectual Property Disputes in Germany
• Resolve M&A Disputes in Germany
• Drafting Distribution Agreements in Germany
• Resolve Contractual Disputes in Germany
• Resolve a Shareholder Dispute in Germany
• Forensic Accounting in Germany
• Resolve Defamation Cases in Germany
• Intellectual Property Valuation in Germany
• Why Choose our Law Firm in Germany?
• Legal Services in Cologne
• Legal Services in Nuremberg
• Legal Services in Stuttgart
• Legal Services in Düsseldorf
• Legal Services in Dresden
• Will Preparation in Germany
• Tenant Eviction in Germany
• Division of Inheritance in Germany

Running a Business in Germany +

• Purchasing a German Company
• Opening a Bank Account in Germany
• Imports and Exports in Germany
• Why Invest in Germany?
• Company Management in Germany
• Bankruptcy Procedures in Germany
• Special Licenses and Permits in Germany
• Wealth Management in Germany
• Listing a Company in the Stock Exchange in Germany
• Asset Protection in Germany
• Road Transportation in Germany
• Dismissal of German Employees
• Directors in Germany
• Company Administration in Germany
• German Shareholders
• Workforce in Germany
• Confidentiality Clause in Germany
• 10 Most Important Business Regulations in Germany
• EORI Registration in Germany
• Corporate Compliance Requirements in Germany
• Capital Market Regulations in Germany
• Receiving Funds for Your Business in Germany
• Franchise Agreements in Germany
• Investment Funds in Germany
• Submitting Financial Statements in Germany
• Hedge Funds in Germany
• Real Estate Investment Trusts in Germany
• A Guide on Dividends in Germany
• Set Up a Retail Fund in Germany
• Open a Mutual Fund in Germany

Tax Consultancy in Germany +

• Taxes in Germany
• VAT in Germany
• Dividend Tax in Germany
• Corporate Tax in Germany
• Tax Minimization in Germany
• Applying for Tax Returns in Germany
• Taxation of Foreign Companies in Germany
• Running an Audit in Germany
• Taxation of Individuals in Germany
• Germany-Belgium Double Tax Treaty
• Germany-USA Double Taxation Treaty
• Germany-UK Double Taxation Treaty
• Germany-Switzerland Double Tax Treaty
• Germany-France Double Taxation Treaty
• Germany-Luxembourg Double Taxation Treaty
• Repatriation of Profits in Germany
• Germany-UAE Double Taxation Agreement
• Germany-Singapore Double Taxation Treaty
• Germany-China Double Tax Treaty
• Germany-Denmark Double Tax Treaty
• Germany-Norway Double Tax Treaty
• Accounting Standards in Germany
• Taxation of Investment Funds in Germany
• Germany - Italy Double Tax Treaty
• Germany - Japan Double Tax Treaty
• Germany - Ireland Double Tax Treaty
• Germany - Netherlands Double Tax Treaty
• Germany - Finland Double Tax Treaty
• Corporate Withholding Taxes in Germany
• Taxation of LLCs in Germany
• Russia-Germany DTA Clarifications
• Taxation of Partnerships in Germany
• Accountant in Germany

Meet us in Germany

Video Testimonial

Germany's copyright law on the verge of the information age

Person as author : ramsauer, thomas, in : copyright bulletin, oct. - dec. 2003, 9 p., language : english, also available in : français, also available in : español, year of publication : 2003.

e-Copyrright Bulletin October-December 2003 DOCTRINE AND OPINIONS THE NATURE AND SCOPE OF LIMITATIONS AND EXCEPTIONS TO COPYRIGHT AND NEIGHBOURING RIGHTS WITH REGARD TO GENERAL INTEREST MISSIONS FOR THE TRANSMISSION OF KNOWLEDGE: PROSPECTS FOR THEIR ADAPTATION TO THE DIGITAL ENVIRONMENT* By Dr. Lucie Guibault ** under the supervision of Prof. Bernt Hugenholtz Table of contents List of abbreviations................................................................................................................................ ii 1. Introduction ..................................................................................................................................... 1 2. Limitations on copyright ................................................................................................................. 2 2.1 General remarks ...................................................................................................................... 2 2.2 Protection of freedom of expression........................................................................................ 5 2.2.1 Quotations ....................................................................................................................... 6 2.2.2 Parodies ........................................................................................................................... 9 2.3 Dissemination of knowledge ................................................................................................. 10 2.3.1 Libraries and archives.................................................................................................... 12 2.3.2 Educational and research institutions ............................................................................ 14 2.3.3 Handicapped persons..................................................................................................... 17 3. Limitations on copyright in the digital networked environment ................................................... 18 3.1 General remarks .................................................................................................................... 18 3.2 Adaptation of limitations to the digital environment............................................................. 21 3.2.1 Libraries and archives.................................................................................................. 211 3.2.1.1 Document delivery services ...................................................................................... 22 3.2.1.2 Digitisation of works ................................................................................................. 24 3.2.2 Educational and research institutions ............................................................................ 25 3.2.2.1 Classroom activities................................................................................................... 26 3.2.2.2 Research activities ..................................................................................................... 28 3.2.2.3 Distance learning activities........................................................................................ 30 3.3 Technological protection measures ....................................................................................... 31 3.3.1 International obligations with respect to technological protection measures ................ 32 3.3.1.1 United States.............................................................................................................. 32 3.3.1.2 Japan.......................................................................................................................... 33 3.3.1.3 Australia .................................................................................................................... 34 * This study has been prepared for UNESCO in June 2003 by Lucie M.C.R. Guibault under the supervision of Prof. Bernt Hugenholtz Professor of Law and Co-Director at the Institute for Information Law (IVIR) of the University of Amsterdam (UvA). ** Lucie M.C.R. Guibault, Assistant Professor of copyright and intellectual property law at the Institute for Information Law (IVIR) of the University of Amsterdam (UvA).3.3.1.4 European Union......................................................................................................... 35 3.3.2 Intersection between technological protection measures and limitations on copyright 35 3.3.2.1 United States.............................................................................................................. 36 3.3.2.2 Japan.......................................................................................................................... 37 3.3.2.3 Australia .................................................................................................................... 38 3.3.2.4 European Union......................................................................................................... 38 4. Conclusion..................................................................................................................................... 39 5. Bibliography.................................................................................................................................. 41 List of abbreviations AA Ars Aequi AGBG Gesetz über Allgemeinen die Geschäftsbedingungen aff’d affirmed AfP Archiv für Presserecht ALAI Association Littéraire et Artistique Internationale AMI Auteurs, Media- en Informatierecht ARRvS Afdeling rechtspraak Raad van State BC Berne Convention BGB Bürgerliches Gesetzbuch BGBl Bundesgesetzblatt BGH Bundesgerichtshof BIE Bijblad bij de Industriële Eigendom BUMA Vereniging Buma (previously: Het Bureau voor Muziekauteursrecht) BverfGE Bundesverfassungsgerichtsentscheidungen CD-ROM Compact Disk Read Only Memory cert. denied certiorari denied Cir. United States Circuit Court of Appeals CPI Code de la Propriété Intellectuelle CR Computer und Recht EEA European Economic Association EC European Community ECHR European Convention on Human Rights ECR European Court Reports EIPR European Intellectual Property Review F. Federal Reporter F.2d Federal Reporter, Second Series F.3d Federal Reporter, Third Series F. Supp. Federal Supplement FuR Film und Recht GEMA Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigun gstechte GG Grundgesetz GRUR Gewerblicher Rechtsschutz und Urheberrecht GRUR Int. Gewerblicher Rechtsschutz und Urheberrecht Internationaler Teil Gw Grondwet H. Rep. House of Representatives of the United iiStates HR Hoge Raad IER Intellectuele eigendom & reclamerecht IIC International Review of Industrial Property and Copyright Law JCP Juris-Classeur, Pratique NBW Nieuw Burgerlijk Wetboek NCCUSL National Conference of Commissioners on Uniform State Laws NJ Nederlandse Jurisprudentie NJB Nederlands Juristenblad NJCM-Bulletin Nederlands Tijdschrift voor Mensenrechten NJV Nederlandse Juristenvereniging OJ Official Journal OLG Oberlandesgericht rev’d reversed RIDA Revue Internationale du Droit d’Auteur TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights UCC Uniform Commercial Code UCITA Uniform Computer Information Transaction Act UFITA Archiv für Urheber-, Film-, Funk- und Theaterrecht UNIDROIT International Institute for the Unification of Private Law U.S. United States Supreme Court decisions, official reports U.S.C. United States Code U.S.P.Q. United States Patent Quarterly UWG Gesetz gegen den unlauteren Wettbewerb VG Wort Verwertungsgesellschaft Wort WIPO World Intellectual Property Organisation ZUM Zeitschrift für Urheber- und Medienrecht iiie-Copyrright Bulletin October-December 2003 1. Introduction The copyright regime1 traditionally strikes a delicate balance between the interests of authors and other right holders in the control and exploitation of their works on the one hand, and society's competing interest in the free flow of information and the dissemination of knowledge, on the other hand. But the copyright balance has never been under as much strain as it is today.2 For example, copyright protection has never been so broad, whether it is in terms of protectable subject matter – including photography, phonograms, films, computer programs, and other digital works , in terms of the scope of exclusive rights – covering new dissemination techniques, such as radio, television, magnetic tape recorders, copy machines, video-recorders, cable and satellite – or in terms of the duration of protection.3 Moreover, the customary lines between creators and users of copyrighted material and between private and public acts of use are gradually fading away. The use of digital technology is indeed modifying the production, distribution, and consumption patterns of copyrighted works. Not only can users easily reproduce works in countless perfect copies and communicate them to thousands of other users, but they can also manipulate works to create entirely new products. Publishers and other producers are no longer mere intermediaries in the chain of production and distribution of works, but become more active in the creative process. The distribution of works is also simpler in the digital networked environment and, instead of going through complex distribution networks, users progressively seek direct online contact with producers.4 At the same time, in the digital networked environment producers are in a better position to control the use of their works. Encryption methods and other similar techniques allow right holders to block access to their works altogether or to monitor the actual use that a person makes of a copyrighted work. What has then become of the traditional balance of interests between right holders and users of protected material in the digital networked environment? While the rules on copyright and neighbouring rights have, as a whole, been unequivocally declared applicable to the digital networked environment5, the definition of limitations on these rights constitutes however one of the major outstanding issues in relation to the new environment. The debate stems not only from the fact that limitations on copyright and related rights have never been harmonised at the international level, but also from the fact that there is no overriding consensus on how to adapt these limitations to the digital networked environment. Nevertheless, lawmakers and scholars seem to agree that the limitations that are applicable in the analogue world should not be automatically transposed into the digital networked environment. Furthermore, before transposing existing limitations or implementing new ones, a careful examination of their relevance and their impact on the right holders' interests should be carried out. Ideally the rules on copyright and related rights should guarantee sufficient protection for creators to maintain their level of investments in the production of new works distributed on-line, while maintaining the public's right to consume those works, including the possibility to make, in certain well defined circumstances, limited uses of those works without the right holder's consent. This study, conducted on commission for the Division of Arts and Cultural Enterprise of UNESCO, examines the nature and scope of limitations on copyright and related rights and their possible adaptation to the digital networked environment. The study in divided in two main parts: the first part 1 Unless stated otherwise, the expression ‘copyright regime’ refers in the following pages both to the common law system and the droit d’auteur system. 2 Dreier 2001, p. 295; and Quaedvlieg 1998, p. 420. 3 In Europe and the United States, the duration of copyright protection has been extended by 20 years, bringing the total duration of copyright protection to the life of the author plus seventy years after his death. See: Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights, O.J.E.C. L 290, 24 November 1993, p. 9; Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827, 2828. 4 Hugenholtz 2000b, p. 79. 5 The best evidence of this is the adoption of the WIPO Treaties: WIPO Copyright Treaty, adopted by the Diplomatic Conference, Geneva, December 20, 1996, [hereinafter the ‘WCT’]; and WIPO Performances and Phonograms Treaty, adopted by the Diplomatic Conference, Geneva, December 20, 1996 [hereinafter the ‘WPPT’ and collectively referred to as ‘WIPO Internet Treaties’].gives a brief overview of the limitations as they are currently laid down by relevant international conventions and by national legislation, while the second part deals with the changes brought on by the emergence of the digital networked environment and the use of technological protection measures. Having regard to UNESCO’s general interest missions in the field of creativity and copyright, the first part focuses exclusively on limitations that are designed to protect the users’ freedom of expression and to foster the dissemination of knowledge, as they have existed until now. In the first section, a number of general remarks are made about the obligations arising under international conventions. The second section concentrates more specifically on limitations allowing the reproduction of works for purposes of quotations and parodies, while the third section examines the limitations adopted for the benefit of educational institutions, as well as libraries and archives, and handicapped persons. The second part opens with a number of general remarks concerning the adoption of the WIPO Internet Treaties and the impact of the digital networked environment on the definition and exercise of limitations on copyright. Section two follows with a short overview of recent developments in two specific areas, namely libraries and museums, and educational and research institutions. Finally, the provisions on technological protection measures are discussed: first, we identify the international obligations in this respect; then, we turn to the question of the co-existence between technological protection measures and limitations on copyright. It should be noted in the beginning that the study does not aim to give an exhaustive account of every existing limitation recognised by national legislations to protect the users’ freedom of expression and to foster the dissemination of knowledge, nor it pretends to provide a comparative law analysis of all relevant provisions. Reference to national legislation or case law merely serves to illustrate my point. In addition, considering that the achievement of the copyright balance is a matter best left to the national legislator, I will not discuss the limitations' political desirability. Issues relating to the duration of the copyright protection, the idea/expression dichotomy, the criterion of originality, the first sale/exhaustion doctrine fall outside the scope of this article, as do issues relating to private international law. The issue of digital copying for personal use would not be addressed at the present stage. 2. Limitations on copyright 2.1 General remarks Limitations on copyrights are an integral part of the copyright system, for they are the recognition in positive law of the users’ legitimate interests in making certain unauthorised uses of copyrighted material.6 Such legitimate interests may include the protection of the users’ fundamental rights, the promotion of free flow of information and the dissemination of knowledge. However, one must remember that the notion of ‘legitimate interest’ or ‘public interest’ is mostly a matter of national policy: what is in the public interest in one country, is not necessarily the same in another. Technically, limitations reflect each legislator's assessment of the need and desirability for society to use a work against the impact of such a measure on the economic interests of the right holders. The outcome of this evaluation will most often determine which limitations are laid down in national legislation and the form that each particular limitation takes. This weighing process often leads to varying results from one country to the next. Indeed, some countries have adopted a very restrictive set of limitations on copyright, like France, Luxembourg, and India, while other countries, like the United Kingdom, Australia and Canada, have included extensive provisions in their legislation allowing acts to take place without the prior authorisation of the rights owner. As mentioned above, the limitations on copyright and related rights have never been harmonised at the international level. The limitations listed in the Paris Act of the Berne Convention are the result of a serious compromise by national delegations – between those that wished to extend user privileges and 6 Guibault 2002, p. 109. 2those that wished to keep them to a strict minimum – reached over a number of diplomatic conferences and revision exercises. Consequently, all but one limitations set out in the text of the Berne Convention are optional: countries of the Union are free to decide whether or not to implement them into their national legislation. As it will be shown in more detail in the sections below, these provisions are meant to set the minimum boundaries within which such regulation may be carried out.7 One of the most important provisions introduced in the Berne Convention during the Stockholm Revision Conference of 1967 is article 9 (2), which establishes a three-step-test for the imposition of limitations on the reproduction right. According to this test, limitations must be confined to special cases, they must not conflict with normal exploitation of the protected subject-matter nor must they unreasonably prejudice the legitimate interests of the author. No clear interpretation has ever been given of what constitutes a ‘normal exploitation of a work’ or an ‘unreasonable prejudice to the legitimate interests of the author’.8 Basically, where the normal exploitation of the work is threatened, no reproduction is authorised. If the normal exploitation is not affected, one must still examine whether the reproduction causes an unreasonable prejudice to the interests of the author. Unreasonable prejudice may be avoided by the payment of remuneration under a statutory license. The Rome Convention of 1961 has brought forth no harmonisation of limitations on related rights. Article 15 of the Rome Convention9 contains the only provision regarding the possible adoption of limitations on related rights.10 The limitations listed therein are not as narrowly confined as in the copyright field. This is particularly true with respect to the private use exemption, which, under copyright law, is based solely on Article 9 (2) of the Berne Convention and is therefore subject to the ‘three-step test’. These limitations are applicable to all three categories of beneficiaries, i.e. performing artists, phonogram producers and broadcasting organisations, but only insofar as they are implemented in national legislation.11 Furthermore, according to the second paragraph of Article 15, the list of possible limitations to neighbouring rights permitted under the Rome Convention is not exhaustive. This paragraph allows Contracting States to provide for exemptions other than those enumerated in the first paragraph, if their copyright laws already contain such limitations. As specified in the WIPO Guide to the Rome Convention, the four specific limitations in paragraph (1) are those mainly used to limit authors’ rights, but there may be other minor ones. Hence, the second paragraph avoids the risk that neighbouring rights owners are treated better than authors, with respect to limitations. However, according to the last sentence of Article 15 (2), none of the uses enumerated in Article 15 must be the equivalent of a statutory license. The Universal Copyright Convention (UCC) was intended to tie non-Berne countries to other countries both inside and outside the Berne Union, but not to tie Berne countries to each other. The UCC imposes minimum copyright terms, formulates broad standards of protection, but articulates no full system of minimum substantive rights such as Berne institutes.12 With respect to limitations on copyright, article IVbis(2) of the UCC only provides that a Contracting State may, by its domestic legislation, make exceptions that do not conflict with the spirit and provisions of the Convention, to the rights granted therein. Any State whose legislation so provides, must nevertheless accord a reasonable degree of effective protection to each of the rights to which exception has been made. By the late 1980s, the spectacular growth of the digital networked environment had sparked the need to review the rules on copyright and related rights. The protection afforded to authors, performers, and 7 Ricketson, 1987, p. 489; Spoor and Verkade, 1993, p. 206. 8 Hugenholtz and Visser, 1995, p. 4. 9 International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, signed in Rome on October 26, 1961. 10 Article 15 of the Rome Convention reads as follows: ‘Any Contracting State may, in its domestic laws and regulations, provide for exceptions to the protection guaranteed by this Convention as regards: a) private use; b) use of short excerpts in connection with the reporting of current events; c) ephemeral fixation by a broadcasting organisation by means of its own facilities and for its own broadcasts; d) use solely for the purposes of teaching or scientific research”. 11 WIPO, Guide to the Rome Convention, Geneva, WIPO, p. 57. 12 Geller and Nimmer, p. INT-79. 3phonogram producers under the Berne Convention and the Rome Convention was deemed no longer sufficient to cope with the characteristics of the new environment. However, instead of calling for a diplomatic conference on the revision of the existing conventions, the World Intellectual Property Organisation (WIPO) convened the countries of the Union to the negotiation of new norms of protection. This led to the adoption in December 1996 of the WIPO Internet Treaties. As was the case in 1994 with the WTO/TRIPS Agreement,13 delegations were unable to reach a consensus on the inclusion of any limitation on copyright and related rights, other than the so-called ‘three-step-test’. Article 10 of the WCT and Article 16 of the WPPT not only confirm the application of this test in the area of copyright - making it applicable to all authors' rights and not only to the reproduction right - but extend it also to the area of neighbouring rights. The model of the Rome Convention has thus been abandoned. The three-step test serves as a general restriction to all exemptions presently found, or to be introduced, in the national copyright and neighbouring rights laws. Even if an exemption falls within one of the enumerated categories of permitted exceptions, it is for the national legislatures (and, eventually, the courts) to determine on a case-by-case basis whether the general criteria of the three-step test are met. Nevertheless, the Contracting Parties to the WCT and the WPPT did agree to the introduction, in both instruments, of the following paragraph in the Preamble: ‘Recognizing the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention’. According to article 31.1 of the Vienna Convention on the Law of Treaties, the Preamble is an integral part of the treaty and serves as a basis for the treaties’ interpretation. However, as Ficsór explains, this paragraph of the Preamble to the WCT only clarifies the fact that such a balance already exists in the Berne Convention and that it should be maintained. Moreover, the reference to particular fields of public interest – namely, ‘education, research and access to information’ – underlines that the Diplomatic Conference did not intend to introduce any new element into the existing principles of the Berne Convention, since it is exactly with respect to these interests that the Berne Convention provides for certain specific limitations and exceptions.14 The respective paragraph of the preamble to the WPPT is essentially to the same effect, although it naturally does not refer to the Berne Convention or in fact, to the Rome Convention. On this point, Ficsór notes that it would not have been appropriate to refer to the balance as reflected in the Rome Convention, since certain new elements have been introduced in article 16 of the WPPT concerning the regulation of limitations, which seem to have improved the balance of interests from the point of view of the beneficiaries of related rights.15 At the European level, copyright limitations have been truly harmonised so far only with respect to computer programs and databases.16 Besides implementing the WIPO Treaties, Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the Information Society17 was intended to resolve some of the uncertainty about the extent of permissible limitations under European copyright law, with respect to both analogue and digital works. The European Commission was of the opinion that without adequate harmonization of these exceptions, as well as of the conditions of their application, Member States might continue to apply a large number of rather different limitations and exceptions to these rights and, consequently, apply these rights in different forms.18 The difficulty of choosing and delimiting the 13 World Trade Agreement 1994 (establishing the WTO and including GATT 1994), Annex 1C, signed in Marrakech, 15 April 1994. 14 Ficsór 2002, p. 416. 15 Id., p. 589. 16 Council Directive of 14 May 1991 on the legal protection of computer programs (91/250/EEC), O.J.E.C. no. L 122, 17/05/91 p. 42, art. 5 and 6 [hereinafter ‘Computer programs directive’]; and Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, O.J.E.C. of 27/3/96 no L 77 p. 20, art. 6 [hereinafter ‘Database directive’]. 17 O.J.C.E. L 167, 22 June 2001, p. 10 - 19 [hereinafter ‘Directive on copyright in the information society’]. 18 European Commission, Explanatory Memorandum to the Proposal for a European Parliament And Council Directive on the harmonization of certain aspects of copyright and related rights in the Information Society, 10 December 1997, COM(97) 628 final, p. 35. 4scope of the limitations on copyright and related rights that would be acceptable to all Member States proved to be almost insurmountable. Under the pressure of Member States and lobbyists, the list of limitations grew from one version of the directive to the next. Between the time when the Proposal for a directive was first introduced in 1997 and the time of adoption of the final text in 2001, the amount of admissible limitations had passed from seven to twenty-three, only one of which (i.e. the exception for temporary acts of reproduction) is to be obligatorily implemented by the Member States. As a result of a serious compromise, the Directive introduces an exhaustive list of twenty-one optional limitations in addition to the ‘three-step-test’. While Member States may not provide for any exemptions other than those enumerated in Article 5, one can entertain serious doubts as to the harmonising effect of an optional list of limitations on copyright and related rights, from which Member States may pick and choose at will.19 The deadline for implementation of this complex and controversial Directive was set for December 22, 2002. Remarkably, only two Member States, i.e. Greece and Denmark, met the deadline. In June 2003, Austria adopted its implementation act.20 All other Member States are still wrestling with questions relating to the scope of rights and limitations and to the protection of technological measures. At the national level, the scope of rights granted to creators can generally be stated either in broad or in narrow terms. When creators enjoy broad exclusive rights, which encompass all possible uses of a work, some limitations on the exercise of their rights may be justified to preserve, in specific circumstances, the public's right to make unauthorised uses of protected material. When the rights are stated in narrow terms, thereby excluding certain acts from the protection regime, exemptions in favour of users may not be needed at all. The choice of a broad or narrow formulation of rights and limitations in a given copyright act ultimately determines how a court will let the balance tip in a particular case between protecting the author’s rights and allowing the public to make certain unauthorised uses of copyrighted material. In the countries of continental Europe, and in countries that have adopted a similar system, the economic rights are generally drafted in flexible and open terms, allowing the exclusive rights to encompass a wide range of exploitation acts, while limitations are strictly defined and closed.21 By contrast, in the Anglo-American copyright law system, economic rights are generally defined narrowly and are limited by the open defences of fair use or fair dealing, which leave courts room to interpret a number of unauthorised uses as non-infringing.22 2.2 Protection of freedom of expression Freedom of expression is usually regarded as one of the cornerstones of any democratic society, for it enhances social progress and ensures individual self-fulfilment.23 Freedom of expression can be broadly defined as the freedom to communicate. This concept transcends mere speech and embraces the prerogative of every citizen to express herself by any means without prior restraint. In most jurisdictions, freedom of expression extends not only to speech and press, but also to numerous areas where individuals or groups might feel the need to express themselves: in the political arena, in the media, in research, in assemblies, in the arts and culture, or in the course of lawful picketing and other social or political demonstrations. Freedom of expression also entails the freedom to gather and to impart information as an essential prerequisite to the shaping of one’s opinion and beliefs. Freedom of expression has been enshrined as a fundamental right in the Universal Declaration of Human Rights24 and incorporated thereafter in article 19 of the International Covenant on Civil and Political Rights (ICCPR)25, Article 10 of the European Convention on Human Rights (ECHR)26 and Article 11 of the 19 Guibault 2003, p. 558. 20 Urheberrechtsgesetz-Novelle 2003, Bundesgesetzblatt für die Republik Österreich, Part I, 6 June 2003. 21 Strowel 1993, p. 144. 22 Dussolier 2003, p. 64. 23 See : Roemen & Schmidt v. Luxembourg, Decision of the European Court on Human Rights, 25 February 2003, Doc. 51772/99; Nieuwenhuis 1997, p. 9. 24 Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948), art. 19. 25 International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, art. 19. 26 Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, Council of Europe, ETS No. 5, art. 10(1): ‘1.Everyone has the right to freedom of expression. This right shall include freedom to 5Charter of Fundamental Rights of the European Union.27 In the United States, free speech is guaranteed under the First Amendment of the Constitution, which states that ‘Congress shall make no law (…) abridging the freedom of speech’. The recognition and exercise of exclusive rights on works impose a burden on the freedom of expression of those who wish to use copyrighted material to convey their own message and on the right to information of those who simply wish to use the information and ideas contained in copyrighted expression.28 Specific limitations have thus been recognised in copyright law to allow users to make certain uses of copyrighted material in furtherance of their own freedom of expression and right to information. Among the numerous limitations that have been introduced into national legislation for the protection of the users’ freedom of expression and for the promotion of the free flow of information are the following: The right to quote works or public addresses of critical, polemical, educational, scientific or information character for the purposes of criticism, news reporting; The right to reproduce, make available, or broadcast political speeches and other public addresses; The right for a daily or weekly newspaper or radio or television broadcast to reproduce news reports, miscellaneous reports or articles concerning current economic, political or religious topics that have appeared in a daily or weekly newspaper or weekly or other periodical or works of the same nature that have been broadcast in a radio or television programme; The right to record, show or announce a literary, scientific or artistic work in public in a photographic, film, radio or television report, provided this is necessary in order to give a proper account of the current affairs that are the subject of the report; and The right to reproduce works for the purposes of parody. The following pages contain an overview of the limitations adopted as a safeguard for the user's freedom of expression, in continental Europe and in the United States, with a particular focus on the right to quote, the right to make reproductions for the purposes of news reporting and parody. 2.2.1 Quotations The fact that, in principle, copyright law protects only the form of expression and not the underlying ideas tends to limit the possible impact of copyright protection on freedom of expression. According to this principle, anyone may publish or reproduce the ideas of another contained in copyrighted material provided the form in which they are expressed is not reproduced. While the idea/expression dichotomy contributes substantially to the freedom of public debate and news reporting, there may be circumstances where it is important to be able to use not merely a person’s idea, but also his or her form of expression in order to have effective reporting or criticism of her thoughts.29 For example, it may be important for a news reporter or a critic to capture the mood, the tone or the nuances of an address, which may not be possible without reproducing part of the speaker’s form of expression. Historians, biographers, and scientists also need to be able to portray reality in a truthful manner in their own work, by relying on prior writings. As early as the beginning of the 19th century, authors recognised the importance for the creative process to be able to build on existing works and make certain borrowings from previous authors.30 Among the limitations adopted for the safeguard of the user’s freedom of expression., the right to quote is undeniably the most important one. It serves as the common denominator of most other limitations, since quotations can be made for ‘scientific, critical, informatory or educational hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.’ 27 O.J.E.C. 18 December 2000, C 364/1. 28 Netanel 1999, p. 9. 29 Spoor and Verkade 1993, p. 5. 30 Renouard 1838, t. 2, p. 17. 6purposes’.31 Quotations can also be made inside historical and other scholarly writings by way of illustration or evidence for a particular view or argument, quotations for judicial, political and entertainment purposes as well as quotations for ‘artistic effect’. This last purpose encompasses not only reproductions of artistic works or parts of such works for the purposes of illustrating a text or to provide the basis for discussion, but also the quotation of works in general for ‘artistic effect’ as in some modern works of fiction or poetry.32 This right is, in fact, the only mandatory limitation under the Berne Convention. Article 10 (1) of the Convention provides that: ‘It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries’. Quotations may be taken from any category of works, including literary works, films, records, radio or television programmes etc., as long as they are made from works that have already been made available to the public. This excludes quotations from unpublished works.33 No element of measure regarding the length of allowable quotations was included in the text of the Berne Convention: quotations must simply be ‘compatible with fair practice’ and ‘not exceed that justified by the purpose’.34 In addition to this, national legislation may require that the name of the author and the source of the work be given in the quotation or reproduction. In France, courts and commentators have accepted the necessity to make short quotations on the basis of the freedom of expression, the freedom to criticize or the dissemination of knowledge.35 In certain instances, quotations have been deemed essential for the intellectual integrity of the person making reference to other works or opinions.36 The French Intellectual Property Code (CPI) states that once a work is made available to the public, the author may not prohibit, subject to the indication of the name of the author and of the source, the making of analysis and short quotations justified by the critical, polemical, educational, scientific or information character of the work into which they are incorporated.37 The requirements of briefness and finality of the quotations have generally been interpreted restrictively. These requirements are assessed – taking account of both the nature of the quoted work, and that of the quoting work. With respect to artistic and plastic works, for example, the courts have refused to apply the quotation exemption arguing that works are either reproduced partially and thereby violate the author's moral rights, or they are reproduced integrally and the reproduction is not a ‘short’ quotation any more.38 Quotations of musical works has also been declared inadmissible because none of the purposes enumerated in the act may be inferred from the incorporating of a musical work into another work. Furthermore, quotations of musical or artistic works can hardly comply with the legal obligations to indicate the source and the name of the author in the second work. By contrast, article 15 (a) of the Dutch Copyright Act 1912 permits the making of quotations only in an ‘announcement, criticism, polemic or scientific treatise’. For many authors, the circumstances listed in the Act are the most controversial element of the provision.39 Such restriction on the scope of the limitation appears strange not only in light of the neutral concept of ‘quotation’, but also in light of the social reality. In view of the narrow formulation of the right to quote under the Dutch Copyright Act, some defendants in copyright infringement cases have had no choice but to invoke, with limited success, the protection under Article 10 of the ECHR.40 31 Wistrand 1968, p. 159. 32 Ricketson 1987, p. 492. 33 See: Kabel 1999, p. 237 and ff. where the author argues that the requirement according to which quotations can only be made from works that have been made available to the public is meant to protect the author’s right to privacy and right of first publication. 34 Stewart and Sandison 1989, p. 136. 35 Lucas and Lucas 1994, p. 269. 36 Bochurberg 1994, p. 29. 37 French CPI, art. L. 122-5, 3° (a). 38 Lucas and Lucas 2001, p. 281. 39 De Zwaan 1995, p. 183; and Spoor and Verkade 1993, p. 208. 40 See: Arrondissementsrechtbank te Amsterdam, 19 January 1994 (De Volkskrant v. M.A. van Dijk en de Stichting Beeldrecht), reproduced in Informatierecht/AMI 1994, p. 51; Arrondissementsrechtbank te Amsterdam, 12 November 7The right to quote constitutes one of the most important limitations on copyright under German law as well.41 In many areas, and primarily in academia, no one would be able to work adequately without the possibility to make quotations. There is therefore no doubt that the right to quote was introduced in the public interest, in the heart of which is the free intellectual debate. Thus, quotations are not only permissible in science and the arts, but also in other areas of creation, such as for news reporting or for the expression of political opinions. The freedom to quote generally serves to promote cultural development in the widest sense.42 Paragraph 51 of the German Copyright Act provides, for example, that isolated scientific works may be reproduced in their entirety, in an independent work, for the purpose of explaining the new work’s content. The same provision expressly allows the reproduction of small portions of published musical works for incorporation into other works, as justified by the purposes of the quoting works.43 However, and although the Act is silent on this point, the German courts have upheld by analogy the right to quote artistic and film works, but only to the extent that these quotes are part of a political debate or of an information broadcast.44 In the United States, the majority opinion holds that since Congress adopted both the First Amendment and the Copyright Act, the legislator could not have exercised its power over copyright law in a way that runs afoul of the First Amendment. There are however, situations in which strict enforcement of a copyright would inhibit the very ‘Progress of Science and useful Arts’ that copyright is intended to promote. An obvious example is the researcher or scholar whose own work depends on the ability to refer to and to quote the work of other scholars. Obviously, no author could create a new work if he were first required to repeat the research of every author who had done that before him. The relationship between copyright law and the First Amendment has given rise to numerous court rulings.45 In Harper & Row Publishers, Inc. v. Nation Enterprises,46 the Supreme Court had to decide whether the unauthorised publication of extracts from an unpublished manuscript of President Ford's memoirs in the magazine ‘The Nation’ could be excused under the fair use doctrine. ‘The Nation’ argued that the public's interest in learning about the President's memoirs, guaranteed under the First Amendment, outweighed the right of the author. The Supreme Court did recognise that ‘the Framers [of the U.S. Constitution] intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas’. Whereas freedom of thought and expression encompassed both the right to speak freely and the right to refrain from speaking at all, the Court refused to accept that ‘this right not to speak would sanction abuse of the copyright owner's monopoly as an instrument to suppress facts’. After examining the facts in the context of the four fair use factors, the Supreme Court ruled that the reproduction of excerpts of the memoirs by ‘The Nation’ was not a fair use.47 Today, the Supreme Court's interpretation of the fair use doctrine in Harper & Row still serves as a valid precedent. For example, when examining the amount and substantiality of the portion used from the original work, the courts now enquire whether ‘such use, focusing on the most expressive elements of the work, 1998, No. 6 (Anne Frank Fonds v. Het Parool), in Mediaforum 1999, p. 39 with note from Hugenholtz; Hof Amsterdam, 8 July 1999, No. 44 (Anne Frank Fonds v. Het Parool), in Informatierecht/ AMI 1999, p. 116, with comment from Hugenholtz. 41 Leinemann 1998, p. 100. 42 Melichar 1999, p. 796; BGH GRUR 1994, 803 – Museumskatalog. 43 German Copyright Act, § 51(3). 44 BGH GRUR 1987, 362 – Filmzitat; OLG Köln GRUR 1994, 47/48 (Filmausschnitt). 45 Rosemont Enterprises v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966); Time, Inc. v. Bernard Geis Assocs., 293 F.Supp. 130 (S.D.N.Y. 1968); Sid & Mary Krofft Television v. McDonald's Corp, 562 F.2d 1157 (9th Cir. 1977); Meeropol v. Nizer, 560 F.2d 1061 (2d Cir. 1977); Wainwright Securities v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977); Triangle Publications, Inc. v. Knight-Ridder Newspaper, Inc. 626 F.2d 1171 (5th Cir. 1980); Harper & Row v. Nation Enterprises, 471 US 539 (1985); Los Angeles Times et al. v. Free Republic, U.S. District Court Central District of California, 8 November 1999, No. CV 98-7840-MMM. 46 471 U.S. 539 (1985). 47 To a large extent, the Court’s finding was founded on the fact that President Ford's Memoirs were unpublished. See: Kabel 1999, p. 237 and ff. 8exceeds that necessary to disseminate the facts’ and whether the portion copied constitutes the ‘heart’ of the copyrighted work.48 2.2.2 Parodies Parody has a tradition in literary history that dates back centuries in some countries. Parodies are considered not only to have entertainment value, but also to serve a critical function, pointing out human imperfections and the ironies of our existence. Encouraging the production of parodies is thus one of society's values since they constitute an important artistic vehicle, through which creators and critics exercise their freedom of expression, guaranteed under article 10 ECHR. Almost by definition however, parodies conflict with the rights owners’ copyright in their work. Indeed, parody is defined as a ‘humorous exaggerated imitation of an author, literary work, style etc’.49 To be effective therefore, a parody necessarily depends upon the use of a pre-existing work. And as for quotations and news reporting, the question is to what extent one may borrow from a protected work in order to produce a parody without being liable for copyright infringement. The Berne Convention makes no specific reference to parodies. But the making of a reproduction for the purposes of parody would probably fall under article 9 (2) of the Convention, or under the right to quote of article 10 (1) of the Convention. As all nations do not share the same sense of humour, a specific exemption for the making of parodies is not recognised everywhere. This is currently the case in Germany and the Netherlands. However, considering that parody appears among the twenty-one optional limitations allowed under the European Directive on Copyright in the Information Society, its implementation may constitute the perfect occasion for Member States to introduce a parody exemption in national law. The satirical genre is part of the French tradition and constitutes a form of freedom of expression that is protected under article 11 of the Déclaration des Droits de l'Homme de 1789 and article 10 ECHR.50 The European Court of Human Rights has repeatedly stated that article 10 ECHR is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.51 National courts enjoy a certain margin of appreciation to evaluate what shocks and disturbs, but in principle all forms of humour are acceptable. The humorous genre allows exaggerations, deformations and ironical representations, the good taste of which is left to individual appreciation. This form of expression has received explicit recognition under article L.122-5, 4° of the French Intellectual Property Code, according to which an author may not prohibit the making of parodies, pastiches, or caricatures, subject to the applicable laws. French legal literature traditionally teaches that parodies apply to musical works, pastiches to literary works and caricatures to drawings and artistic works. This classification is somewhat technical and has been the source of much confusion in the case law.52 In any case, to be considered admissible under French law, a parody must consist of two elements: a moral and a material element. The moral element is essential: the exemption of parody may only be invoked if the humorous intent is established. But the intention to raise laughter must not turn into an intention to harm the personality or the reputation of the artist parodied. As to the material element, the extent of the borrowing is irrelevant. It is important that there is no risk of confusion in the public or an intent of appropriation of the original work by the parodist. Parody implies the making of sufficient and specific borrowings to reveal the relation to the original work, but it must also be different enough to avoid any competition with the original work.53 Parodies must in principle aim at criticising the original work itself, but those that use a work as a support for a more general critic of society or current events have been tolerated to some extent in the past.54 48 471 U.S. 539 (1985), at p. 564. See: Religious Technology Center (Church of Scientology) v. Netcom, et al., 923 F. Supp. 1231 (N.D. Cal. 1995). 49 Oxford Dictionary of Current English, 2d ed., Oxford, Oxford University Press, 1993, p. 648. 50 Ader 1994, p. 2. 51 Sunday Times, European Court of Human Rights, 26 April 1979, Series A no. 30, § 65. 52 Gautier 1999, p. 308. 53 Lucas and Lucas 1994, p. 274. 54 Gautier 1999, p. 309, referring to TGI Paris, 14 May 1992, Sardou v. Lamy, reproduced in RIDA Oct. 1992, p. 174. 9In the United States, parodies come, like quotations, under the umbrella of the fair use doctrine. In fact, American courts have rendered numerous decisions concerning the use of copyrighted material for the purposes of parody.55 One of the most important rulings of the recent years on the doctrine of fair use is the Supreme Court's decision in Campbell v. Acuff-Rose,56 which involved a parodied work. This decision clarified several ambiguous issues pertaining to the fair use defence in general, and to parodies in particular. In this case, petitioners, known as the rap group 2 Live Crew, had made a rap version of the song ‘Oh, Pretty Woman’, originally composed by Roy Orbison and William Dees and whose rights were owned by Acuff-Rose Music, Inc. Writing the unanimous decision of the Supreme Court, Justice Souter accepted the defence of fair use, declaring that, like less ostensibly humorous forms of criticism, parody can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. To meet the first fair use requirement, a parody must add something new, with a further purpose or different character, altering the first work with a new expression, meaning, or message. This criterion asks, in other words, whether and to what extent the new work is ‘transformative’. And although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Turning to the third factor of the fair use defence, the Supreme Court pointed out that it was consistent with earlier case law to hold that, when parody takes aim at a particular original work, it must be able to ‘conjure up’ at least enough of that original work to make the object of its critical wit recognisable. In the case at hand, Justice Souter estimated that 2 Live Crew's parody of ‘Oh, Pretty Woman’ was a transformative work and was therefore covered by the exception of fair use. 2.3 Dissemination of knowledge A number of limitations share the common objective of encouraging dissemination of knowledge and information among the members of society at large. This is the case of the limitations adopted in favour of educational institutions and those adopted in favour of public libraries, museums and archives, and in favour of handicapped persons. These limitations serve as a tool in carrying out a government's information policy and in enhancing democracy within society. They therefore reflect the government's belief that society as a whole derives greater benefit from allowing certain uses to take place, under certain conditions, without the rights owners' authorisation, than from maintaining strict control over protected works. The fact that these objectives justify the use of copyrighted material without the rights owners' authorisation does not however necessarily imply that such use should occur without the payment of a fair compensation to the rights owner. The choice between recognising an exemption and establishing a statutory licence is also part of each legislator's balancing process between the interests of rights owners and those of the users. On the other hand, a number of countries have decided not to adopt specific provisions applicable to educational institutions, libraries, archives or museums, outside of the mandatory right to quote for scientific purposes, the private use exemption and the setting up of a reprography regime.57 A number of countries have chosen to regulate the reprographic use of protected material by educational institutions, libraries and other institutions through the implementation of a non-voluntary licence regime. According to such a regime, levies may be imposed following either one of four ways: 1) on the sale of reproduction equipment, such as photocopying machines, and facsimile machines; 2) proportional to the amount of copies made in one year; 3) proportional to the number of students or employees; or 4) a combination of either one of the three preceding systems. Reprography regimes are usually not limited 55 Benny v. Loew's Inc., 356 U.S. 43 (1958); Columbia Pictures Corp. v. National Broadcasting Co., 137 F. Supp. 348 (S.D. Cal. 1955); Berlin v. E.C. Publications, Inc. 219 F. Supp. 911 (S.D.N.Y. 1963) aff'd, 329 F.2d 541 (2d Cir. 1964); Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 (S.D.N.Y. 1980) aff'd 623 F.2d 252 (2d. Cir. 1980); Walt Disney Productions v. Air Pirates, 345 F. Supp. 108 (N.D. Cal 1972) aff'd in part & rev'd in part, 581 F.2d 751 (9th Cir. 1978); Hustler Magazine v. Moral Majority, Inc., 796 F.2d 1148 (9th Cir. 1986); Rogers v. Koons, 960 F.2d 301 (2d Cir. 1991); Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164 (1994). 56 Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164 (1994), at p. 1181. 57 France and Belgium for example have no such specific exemptions. See: Hugenholtz and Visser 1995, p. 11 and 19. 10to schools or libraries, but may also extend to all reproductions made by governmental organisations, enterprises, administration offices, and copy shops where reprographic equipment is available.58 The sums paid under reprography regimes are administered by a collective society, often on a mandatory basis.59 In the Nordic countries, reprographic reproduction - outside the field of private use - is subject to the so-called extended collective agreement license.60 As a rule, the obligation to pay the remuneration imposed on reprographic equipment does not lie with the end-user, but rather on the manufacturers, importers, or intra-community acquirers of such devices. In the majority of cases, manufacturers and importers of reproduction equipment pass the charge on to the consumers by means of the sales price of such equipment. Geller observes that ‘where levies are imposed, for example, on the sales price of a copy machine, facsimile machine, or blank recording tapes, there is only an intrusion at that point where these instruments enter commerce, not in private life. Where, by contrast, levies are imposed on machines already purchased by users, some method is needed to police these users, for example, concerning what they do in their offices or homes, or at least to collect monies due’.61 Similarly, we note that the obligation to pay the proportional remuneration for reprographic activities generally lies with the legal person under whose supervision, direction, or control the reprographic equipment is used, such as copy-shops, educational institutions, libraries, governmental institutions, and businesses. It is also important to point out that, in some countries, copying under the reprography regime is not authorised if, or to the extent that, licences are available authorising the copying and the person making the copies knew or ought to have been aware of that fact.62 In other countries, like the United States, there is no reprography regime in force for the making of reproductions of works. Unless such activities qualify as fair use, users, whether libraries, archives, universities or schools, must obtain a licence from the rights holder in order to make photocopies of works. In American Geophysical Union, et al v. Texaco Inc. for example, Texaco had developed the practice of making systematic copies of scientific articles made available to scientists, instead of paying licence fees or of acquiring additional subscriptions. The Court of first instance suggested that the availability of means for paying right holders for the use of their works would reduce or even eliminate the need to refer to the fair use defence. In the Court’s opinion, the absence of a mechanism to compensate authors would justify a fair use defence, whereas such a defence would hardly be admissible in the presence of such a mechanism: ‘Despite Texaco's claims to the contrary, it is not unsound to conclude that the right to seek payment for a particular use tends to become legally cognizable under the fourth fair use factor when the means for paying for such a use is made easier. This notion is not inherently troubling: it is sensible that a particular unauthorized use should be considered ‘more fair’ when there is no ready market or means to pay for the use, while such an unauthorized use should be considered ‘less fair’ when there is a ready market or means to pay for the use’.63 The Court of Appeals for the Second Circuit confirmed the trial court's decision and found for the plaintiff mainly on the basis of the first and fourth fair use factors. On the purpose and character of defendant's use, the Court ruled in favour of the plaintiff, ‘primarily because the dominant purpose of the use was a systematic institutional policy of multiplying the available number of copies of pertinent copyrighted articles by circulating the journals among employed scientists for them to make copies, thereby serving the same purpose for which additional subscriptions are normally sold, or (…), for which photocopying licenses may be obtained’.64 On the effect upon the potential market or value of the work, the Court considered that the plaintiff had demonstrated a substantial harm to the value of 58 Spoor and Verkade 1993, p. 242. 59 Belgian Copyright Act, art. 61; German Copyright Act, § 54 (6). 60 Danish Copyright Act, art. 50; Finnish Copyright Act, art. 13; Swedish Copyright Act, art. 26i; Norwegian Copyright Act, art. 36. 61 Geller 1992, at p. 35. 62 UK Copyright, Designs and Patents Act 1988, art. 36(3). 63 American Geophysical Union, et al v. Texaco Inc., 37 F.3d 881 (2sd Cir. 1994). 64 American Geophysical Union, et al v. Texaco Inc., 60 F.3d 913 (2d Cir. 1995). 11their copyrights through Texaco's copying ‘primarily because of lost licensing revenue, and to a minor extent because of lost subscription revenue’. In its concluding remarks, the Court of Appeals added that if Texaco wished to continue its copying activities, it could either use the licensing schemes of the Copyright Clearance Center or purchase additional subscriptions to the periodical. 2.3.1 Libraries and archives Typical functions of any library are the collection, preservation, archiving, and dissemination of information. The preservation and archiving of copyrighted works often involves the making of reproductions from original works, either because they have been damaged, lost, or stolen.65 The dissemination of information takes place in a number of ways, either by lending copies of works; by permitting the public consultation of works on the premises of the library or the consultation of electronic material at a distance; by allowing patrons to make their own reproductions of works for personal purposes using freely accessible machines (photocopy, microfiches or printer); or finally by transmitting works at the request of individual patrons in the context of a document delivery service or an interlibrary loan service.66 Limitations adopted for the benefit of libraries and archives are thus meant to allow them to perform their general tasks and to encourage the dissemination of knowledge and information among members of society at large, in furtherance of the common good. However, the need to adopt specific measures to meet this particular common good objective is evaluated differently from one country to the other.67 Moreover, since libraries come in different shapes and sizes each pursuing different types of objectives, their public interest dimension has been interpreted differently depending on whether they are publicly or privately funded, commercial or non-profit, accessible to the general public or only to a restricted group. In practice, limitations on copyrights are usually recognised in favour of non-profit, publicly funded, and generally accessible libraries, because they are thought to pursue greater public interest objectives than other types of libraries. In view of the absence of a specific provision in the Berne Convention concerning libraries, museums and archives, the general limitation of article 9 (2) of the Berne Convention has formed the basis for the adoption of several specific limitations appearing in national legislation, such as reproductions for private use, research and scientific purposes, for preservation purposes in libraries and archives or for inclusion of artistic works in exhibition catalogues.68 Specific provisions concerning the activities of libraries have existed in one form or another, in many countries around the world, like Australia, Canada, Columbia, and Mexico. Such limitations may cover such acts as the making of reproductions for the purposes of preservation, replacement of lost or damaged copies, or research; the making of reproductions of single articles or short extracts of works for delivery to users; or the making of reproductions for use in reading devices.69 For example, article 31 of the Japanese Copyright Act states that: ‘It shall be permissible to reproduce a work included in library materials (“library materials” in this Article means books, documents and other materials held in the collections of libraries, etc.) within the scope of the non-profit-making activities of libraries, etc. (“libraries, etc.” in this Article means libraries and other establishments, designated by Cabinet Order, having the purpose, among others, to offer library materials for the use of the public) in the following cases: (i) where, at the request of a user and for the purpose of his own investigation or research, he is furnished with a single copy of a part of a work already made public or of all of an individual work included in a periodical already published for a considerable period of time; (ii) where the reproduction is necessary for the purpose of preserving library materials; (iii) where other libraries, etc., are furnished with a copy of library materials which are rarely available through normal trade channels because the materials are out of print or for other similar reasons. 65 Institute for Information Law 1998, p. 1. 66 Krikke 2000, p. 21. 67 Lucas 1998, p. 220; Visser 1996, p. 52. 68 Ricketson, S. (1989), p. 485 and ff. 69 Columbian Copyright Act, art. 38. 12The exercise of limitations adopted for the benefit of libraries and archives is usually subject to strict conditions. For instance, to benefit from the application of article 31 (i) of the Japanese Act, a library patron would be required to come to the library to obtain one copy of a part of the work. A request through the postal service is regarded as a visit, but the Law says nothing about transmission by facsimile and networks. Under the Australian Copyright Act, a person may make a request to an authorized officer of the library or archives to be supplied with a copy of an article or a part of a published work, provided he presents a declaration to the effect that the copy is required for the purpose of research or study and will not be used for any other purpose and that no copy of the same article or part a work has previously been supplied.70 The same declaration must be presented by the patron of a library or archives, who requests a copy of an article or part of a work from another library or archives. A library may therefore copy certain amounts of published literary, dramatic, musical or artistic works for a patron who needs the material for his or her research or study. Under sect. 50 of the Copyright Act, the inter-library supply of copyright material does not constitute an infringement where the making or supplying of a copy containing more than a reasonable portion of the work is done by an authorised officer of the library. The authorised officer must be ‘satisfied that a copy (not being a second-hand copy) of the work cannot be obtained within a reasonable time at an ordinary commercial price’. However, the Act contains no similar provision for audiovisual material, such as films, recorded music or talking books. The Australian Copyright Act puts an additional restriction on the ability of libraries to make reproductions of works upon request from their patrons: the reproduction must not relate to more than a ‘reasonable portion’ of the work. A ‘reasonable portion’ is defined under s. 10(2) of the Copyright Act as up to 10% of the number of pages in a published edition of a work or the whole or part of a single chapter of a work. The reasonable portion test also plays an important role in the library and archives exceptions and the educational statutory licence regime. Section 108 of the United States Copyright Act contains excessively detailed exemptions that cover most of the libraries' and archives' main activities. Just like the limitations in favour of educational institutions, however, the limitations adopted for the benefit of libraries and archives were the result of a compromise reached between interested parties just before the enactment of the U.S. Copyright Act of 1976. Under very strict conditions, libraries and archives may make reproductions of certain types of works71 for the purposes of preservation and security and for the purpose of replacement of a copy that is damaged, deteriorating, lost or stolen. Libraries are also allowed to make, at the individual request of patrons, reproductions of a small portion of a work or of an article taken from a periodical from its own collection or in the framework of an interlibrary loan service. However, these exemptions apply exclusively to libraries and archives ‘without any purpose of direct or indirect commercial advantage’. Thus, libraries or archives in a profit-making organisation are precluded from providing employees with copies of copyrighted material, unless such copying qualifies as a fair use, or the organisation has obtained the necessary copyright licences.72 According to Section 108 of the Act, the reproduction and distribution of works within the framework of an interlibrary loan service is restricted to the isolated and unrelated reproduction or distribution of a single copy of the same material on separate occasions. None of these exemptions must lead to the systematic, related or concerted reproduction and distribution of multiple copies of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one individual or for separate use by the individual members of a group. The Act specifies that systematic reproduction and distribution occur when a library makes copies of such materials available to other libraries or to groups of users under formal or informal arrangements the purpose or effect of which is to substitute 70 Australian Copyright Act of 1968, art. 49(2A). 71 U.S. Copyright Act of 1976, section 108(h) which reads as follows: ‘The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news (…).’ 72 U.S. Copyright Office, Circular 21 – Reproduction of copyrighted works by educators and librarians, Washington D.C., 1995, p. 13. See also: American Geophysical Union, et al v. Texaco Inc., 37 F.3d 881 (2sd Cir. 1994). 13for a subscription to or purchase of a work. Guidelines were later developed to clarify the extent of the photocopying permissible within the framework of interlibrary arrangements.73 In certain European Union countries, whilst no specific exceptions for library use exist (for example Germany, Belgium, France), these institutions may benefit from the general exceptions set out in favour of educational or private use. In Germany, the lawfulness of an interlibrary loan service under the private use exemption was examined in a recent decision of the Supreme Court. The case involved the document delivery service of the Technical Information Library of Hannover (TIB). 74 The TIB is one of the biggest services of this type in Germany. Via the Internet, it offers a worldwide document delivery service, whereby people can consult its on-line catalogue and send an email to order a copy of a work from its collection. The copy is then sent by mail or by fax to the person who made the request. The Supreme Court pointed out that a modern and highly developed industrial nation, like Germany, depends on science and research and therefore needs a fully developed, rapid, and economical information system. On the basis of the legislative history of Article 53 of the Copyright Act, the Court noted that the legislator did not intend to subject the document delivery services of publicly accessible institutions to the prior authorisation of right holders. In the German Court’s opinion however, the level of remuneration to be paid to rights owners for such document delivery services could be adjusted to take account of the new reality.75 By contrast, other EU Member States (such as the UK, Austria, Ireland, Sweden, Finland, Denmark, Portugal, Greece) set out specific exceptions for the benefit of libraries and archival use of protected subject matter although these differ widely and do not necessarily cover the use of digitised material. With respect to the use of digitised material by libraries, on-line as well as off-line, initiatives are on- going in a number of Member States, notably the UK, where library privileges are most developed, to arrive at more flexible contractual solutions. Article 5 (2) (c) of the European Directive on Copyright in the Information Society allows Member States to adopt a limitation only in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage. This provision allows Member States like the UK, Ireland, Luxembourg, Greece, Portugal, Denmark, Sweden, and Finland to maintain their limitations regarding the reproduction of copyrighted material by libraries and archives, although these legislative provisions may need to be revised to comply with the language of the Directive. However, the Directive puts no obligation on the Member States to implement limitations for the benefit of libraries and archival use, so that the legislation of the Member States will most likely remain unharmonised in this area. 2.3.2 Educational and research institutions From the point of view of copyright law, the use of copyrighted material in educational institution and in research follows a similar pattern, the primary objective of which is to disseminate existing knowledge. Educational purposes are defined as non-commercial instruction or curriculum-based teaching by educators to students at non-profit educational institutions, and research and scholarly activities, defined as planned non-commercial study or investigation directed toward making a contribution to a field of knowledge and non-commercial presentation of research findings at peer conferences, workshops, or seminars.76 Perhaps the biggest difference between lower or higher educational and research institutions lies in the fact that the latter are not only users of copyrighted material but also producers of new works. In practice, educators strive to adapt their teaching methods to new learning environments. To catch the students’ attention and to improve their learning skills, educators rely heavily on contemporary books, newspapers, magazines, photographs, videos, slides, 73 H. Rep. No. 1733, 94th Cong., 2d Sess. 72-73 (1976). 74 BGH, 25 February 1999 - I ZR 118/96 (Kopienversanddienst), in GRUR 1999/08-09, p. 707. See also: Krikke 1999, p. 125. 75 Krikke 2000, p. 91. 76 United States Patents and Trademark Office, The Conference on Fair Use, Final Report to the Commissioner on the Conclusion of the Conference on Fair Use, Washington D.C., Nov. 1998, p. 35. 14sound recordings, broadcasting programs and other media.77 In practice, schools make millions of photocopies of copyrighted material in each country every year. Moreover, the performance of works, the diffusion of radio or television broadcasts and the communication of videos or sound recordings are particularly suitable for teaching in a classroom environment. For the other part, typical research activities include the exchange of cutting-edge discoveries and works-in-progress among scholars; the publication of new and synthetic works for the broad academic community; the dissemination of new and existing knowledge to students through teaching; the establishment of repositories to enable handing knowledge down from generation to generation; and the transmission of knowledge beyond the academy to the public. Research requires the ability to cite and quote the work of others, regardless of format: whereas quotations from text can be manually transcribed, quotations from digital objects may require machine mediation. Scholarly communication involves individuals, academic departments and research units, libraries, archives, university presses, commercial publishers, external research sponsors, academic and industrial software developers and others. Because it carries information that ranges from complex graphical and sound data to plain text and must reach an audience that ranges from Nobel scientists to freshmen in remedial courses, scholarly communication must include the full range of content and take place in all media. It must flow back and forth between all of its participants and be capable of moving rapidly enough to contribute to the evolution of understanding and knowledge. It must not be overwhelmed by a permissions system so burdensome that it makes such movement impossible. Be that as it may, any unauthorised use of a work in the context of educational or research activities constitutes an infringement of copyright, unless a limitation on copyright applies.78 While the use of current material undeniably contributes to the intellectual development of students and to the progress of scientific research, it is surprising to note that limitations adopted for the benefit of educational and research institutions vary widely from one country to the next.79 This is so because the regulation of the ‘utilisation of works by way of illustration’ for teaching purposes has been left to the discretion of national legislations.80 Under Article 10 (2) of the Berne Convention, such utilisation is lawful if it is made for the purposes of teaching, if it is ‘justified by the purpose’ and if it is ‘compatible with fair practice’. Illustrations can be made by means of publications, broadcasts or sound and audio-visual recordings, provided that they fulfil the listed requirements. Article 10 (2) has been interpreted to apply to teaching at all levels, if dispensed in educational institutions and universities, municipal, state and private schools, but not to teaching dispensed outside these institutions such as general public and adult education facilities81. As in the case of quotations, the utilisation of works for teaching purposes is not subject to any determined quantitative restriction. The words ‘by way of illustration’ do impose some limitation on the size of the borrowing, but would not exclude the use of the whole of a work in appropriate circumstances82. In countries like Australia, Chile, Japan, and Mexico, where special measures have been introduced with respect to schools or other educational institutions and with respect to scientific research, the most common limitations to be found in national legislation are the following: The right to make compilations of only short works or of short passages of works by one and the same author and, in the case of artistic works, photographs or drawings, only a small number of those works, for purposes of teaching; The right to reproduce parts of works in publications for use as illustrations for teaching, or for the purposes of scientific, literary or artistic criticism, and research; 77 Educational Multimedia Fair Use Guidelines Development Committee, Fair Use Guidelines For Educational Multimedia, Washington D.C., July 17, 1996, § 1.2. 78 Neumann 1994, p. 23. 79 Guibault 2002, p. 69. 80 Berne Convention, art. 10(2) which reads as follows: “It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided that such utilization is compatible with fair practice”. 81 Stewart and Sandison 1989, p. 138. 82 Ricketson 1987, p. 496. 15The right to annotate and collect in any form by those to whom they are addressed, lectures given either in public or in private by the lecturers of universities, higher institutes of learning and colleges provided that no person may disclose them or reproduce them in either a complete or a partial collection without the prior written consent of the authors; The right to communicate to the public parts of works by broadcasting a radio or television programme made to serve as an illustration for teaching purposes or for scientific research purposes; The right to perform and display a work in the course of teaching activities; The right to reproduce a work already made public in questions of an entrance examination or other examinations of knowledge or skill, or such examination for a license. Often these uses are allowed provided the work being reproduced has been lawfully communicated to the public and that they occur in conformity with that which may be reasonably accepted in accordance with social custom. As in the case of quotations, the source must be clearly indicated, together with the indication of the author if it appears in the source. Furthermore, the law often provides for the payment of an equitable remuneration to the author or his successors in title, as it is the case in Australia. In addition, a fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, for the purpose of research or study does not constitute in Australia an infringement of the copyright in the work. A fair dealing with a literary work (other than lecture notes) does not constitute an infringement of the copyright in the work if it is for the purpose of, or associated with, an approved course of study or research by an enrolled external student of an educational institution. In determining whether or not a dealing is fair, a number of factors outlined in s. 40(2) are to be taken into account. These factors include: the purpose and character of the dealing; the nature of the work or adaptation; and the effect of the dealing upon the potential market for, or value of, the work or adaptation. Notwithstanding these factors, a copy is deemed to be fair if it constitutes not more than a ‘reasonable portion’ of a work. A ‘reasonable portion’ is defined under s. 10(2) as 10% of the number of pages in a published edition of a work, or the whole or part of a single chapter of the work. In the United States, educational institutions are allowed to make unauthorised use of copyrighted material according to wide ranging limitations, none of which are subject to the payment of equitable remuneration to the rights owners.83 The broadest limitation in favour of educational institutions is undeniably that of section 107 of the Act, which lists teaching (including multiple copies for classroom use), scholarship, and research among the activities for which the unauthorised use of copyrighted material might in certain circumstances be excused under the fair use doctrine. The fair use doctrine was codified in the U.S. Copyright Act of 1976 after a decade-long process, during which the most contentious issue was educational photocopying. Some authors have held that the inclusion of classroom copying within the scope of the fair use doctrine only brought confusion to the concept of fair use and that educational use should have been provided for under a separate limitation.84 The boundaries of the fair use doctrine in the field of education were clarified in an ‘Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions’, reached between authors and publishers on the one hand, and educators on the other.85 These Guidelines provide specific examples of what constitutes fair use of published works. They allow, under certain conditions, single copying for a teacher's use and multiple copies for classroom use, but specifically prohibit other uses. In addition to the Classroom Copying Guidelines, the House Report contained the ‘Guidelines for Educational Uses of Music’, to cover the reproduction of recorded and printed music.86 In effect, these guidelines are said to have succeeded in providing educators with some certainty as to what was acceptable under the fair use doctrine, while preventing copying where permission could 83 U.S. Copyright Act of 1976, art. 107 and 110, allowing performances and displays of works in certain face-to-face teaching activities. 84 Klingsporn 1999, p. 108. 85 House Committee Report on the 1976 Copyright Bill (House Committee on the Judiciary, House Report No. 94-1476 to accompany S. 22, 94th Cong., 2d Sess., September 3, 1976, pp. 65-74. 86 Klingsporn 1999, p. 104. 16reasonably be requested and where the market for or the value of the work is likely to be affected, as in cumulative copying or reproductions in anthologies.87 In Europe, Member States may, under the new Directive on Copyright in the Information Society, provide for limitations relating to the use of copyrighted material for the purpose of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non- commercial purpose to be achieved.88 Limitations can be adopted with respect to both the right of reproduction and the right of communication to the public. Recital 42 of the Directive specifies that when applying the limitation for non-commercial educational and scientific research purposes, including distance learning, the non-commercial nature of the activity in question should be determined by that activity as such. The organisational structure and the means of funding of the establishment concerned are not the decisive factors in this respect. The Directive therefore leaves room for the Member States to adopt or maintain limitations relating to the reproduction or communication of copyrighted material for the purpose of illustration for teaching or scientific research.89 These may include the right to record broadcast works for use in the classroom, the right to make anthologies of works, the right to perform a work in the course of activities of educational establishments and the right to reproduce a work for purposes of instruction or examination.90 The requirement that appears in the British and Irish Acts according to which a limitation allowing the recording by educational establishments of broadcast or cable programmes and the reprographic copying of works does not apply if or to the extent that there is a licensing scheme is also compatible with Recital 45 of the Directive.91 Moreover, the possibility for educational institutions to make reproductions of works under a reprography regime only applies to analogue means of reproduction. Under Article 5 (2) (a) of the Directive on Copyright in the Information Society for example, Member States may only allow ‘reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects, with the exception of sheet music, provided that the right holders receive fair compensation’. 2.3.3 Handicapped persons Among the limitations in national legislation which aim at encouraging the dissemination of knowledge and information among the members of society, is the limitation adopted for the benefit of handicapped persons. The multilateral conventions do not specifically address such a limitation. Nevertheless, it appears from the report of the Main Committee I of the Stockholm Conference in 1967, that a limitation for the benefit of handicapped people was envisaged during the negotiations as one possible applications of the limitation set out in Article 9 (2) of the Berne Convention.92 The copyright laws of several countries around the world, like the acts of the United States, Australia, Japan, and Canada, have contained, in one form or another, a limitation on copyright for the benefit of handicapped people, already for a number of years.93 The United Kingdom has recently introduced in the Copyright, Designs, and Patents Act 1988, a limitation permitting visually impaired persons or a competent body to make accessible copies for the personal use of visually impaired persons to whom the master copy is not accessible because of their impairment.94 Interestingly, the British Parliament 87 Patry 1995, p. 356. 88 Directive on Copyright in the Information Society, art. 5(3)a). 89 See for example: Luxembourg Copyright Act of 2001, art. 10(2). 90 See for example: UK Copyright, Design, and Patents Act 1988, art. 32-36; Belgian Copyright Act 1994, art. 21, 2sd par., 22 (4bis) and 22(4ter); Dutch Copyright Act 1912, art. 16; German Copyright Act, art. 46, 47, 53(3); Irish Copyright Act 2000, art. 53-57. 91 Recital 45 of the Directive on Copyright in the Information Society reads as follows: ‘The exceptions and limitations referred to in Article 5(2), (3) and (4) should not, however, prevent the definition of contractual relations designed to ensure fair compensation for the rightholders insofar as permitted by national law. 92 Ricketson 1987, p. 485 and ff. 93 See for example: U.S. Copyright Act, § 121; and Copyright Act of Canada, R.S.C. (1985), c. C-42 as last amended by S.C. 1997, c. 24, art. 32; Japanese Copyright Act, Law No. 48 of May 6, 1970, as last amended by Law No. 91 of May 12, 1995, art. 37; and Australian Copyright Act of 1968 as subsequently amended, Commonwealth Consolidated Acts, art. 47a and 135 to 135ZQ and 135ZR to 135ZT; 94 UK Copyright (Visually Impaired Persons) Act 2002, Chap. 33, art. 31A. 17also provided that a competent body is not allowed to make accessible copies in a particular form if there is a not unreasonably restrictive licensing scheme in force under which licences may be granted for the making and supply of copies of the copyright work in that form. In continental Europe, many countries have also implemented a provision to this effect.95 National legislation may provide that the exercise of this limitation is subject to the payment to the author of an equitable remuneration, in addition to any other condition of application. In some countries, the obligation to pay remuneration has been put on the State rather than on the physical or moral persons making the reproductions, which amounts in fact to a subsidy in favour of both handicapped persons and copyright owners. At the European level, Recital 43 of the Directive on Copyright in the Information Society declares that it is in any case important for the Member States to adopt all necessary measures to facilitate access to works by persons suffering from a disability which constitutes an obstacle to the use of the works themselves, and to pay particular attention to accessible formats. Consequently, article 5 (3) (b) of the Directive allows Member States to introduce a limitation on the right of reproduction and the right to communicate a work to the public with respect to uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability. This article is broader than the provision that was initially included in the Proposal for a directive, according to which the limitation would have been applicable only with respect to uses for the benefit of visually-impaired or hearing-impaired persons. With respect to this particular limitation and to other limitations of a more limited economic importance, the European Commission declared in the Explanatory Memorandum that the provisions of the Directive only set out minimum conditions of their application, and it is for the Member States to define the detailed conditions of their use, albeit within the limits set out by the Directive.96 As a result of the adoption of the Directive, France and Germany are considering the introduction of such a limitation in their national law, France in the form of an exemption and Germany, in the form of a statutory licence. This differentiated method of implementing the Directive is in conformity with Recital 36, which states that the Member States may provide for fair compensation for right holders also when applying the optional provisions on exceptions or limitations, which do not require such compensation. 3. Limitations on copyright in the digital networked environment 3.1 General remarks The adoption of the WIPO Internet Treaties in 1996 gave the international legal community the necessary confirmation that copyright law is to prevail in the digital world. During the preparatory works that lead to the adoption of the Treaties, delegations spent much time discussing what would be the appropriate scope of protection to grant rights owners in the digital environment. A number of exclusive rights have been formally introduced, both under the WCT and the WPPT. Among these are the right of distribution, the right of rental, and the ‘right to communicate a work to the public’ under the WCT, with its equivalent ‘right of making available of a sound performance’ under the WPPT97. Both rights of ‘making available’ are meant to encompass all ‘on-demand’ communications of works or sound performances, which are now subject to authorisation from the rights owner. 95 Spanish Copyright Code, art. 31(3); Portuguese Copyright Act, art. 80; Luxembourg Copyright Act, art. 10(14); Danish Copyright Act, art. 17; Finnish Copyright Act, art. 17. 96 European Commission, Explanatory Memorandum to the Proposal for a European Parliament And Council Directive on the harmonization of certain aspects of copyright and related rights in the Information Society, 10 December 1997, COM(97) 628 final, p. 40. 97 Compare the formulation of both Treaties: WCT, art. 8: “Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them”; and WPPT, art. 10 and 14: “Performers [and producers of phonograms] shall enjoy the exclusive right of authorizing the making available to the public of their performances fixed in phonograms [or their phonograms], by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them”. 18No specific limitation was adopted with respect to these rights. Among the several questions examined was that of the applicability of the right of reproduction to the new environment, and the possible limitations to it. After lengthy debates, delegations came to the conclusion that the wording of article 9 (1) of the Berne Convention was sufficiently broad to cover digital reproductions. On the basis of this consensus, Contracting Parties to the WPPT agreed to upgrade the protection afforded under the Rome Convention by granting performers and phonogram producers ‘the exclusive right of authorising the direct or indirect reproduction of their performances fixed in phonograms [or of their phonograms], in any manner of form.’98 At the time, no consensus could be reached on the wording of a possible limitation to allow transient or incidental forms of temporary reproductions, which a number of delegations believed should not be covered by the exclusive right of authorising reproduction. At the close of the Diplomatic Conference on the WCT, delegations adopted the following Agreed Statement: ‘The reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention’. It has been suggested that this Agreed Statement could constitute an appropriate basis for the introduction into the Contracting Parties’ national laws of any justified exemptions in cases of transient and incidental reproductions, subject to compliance with the ‘three-step test.’99 As mentioned in section 2.1 above, delegations were unable to reach a consensus on the inclusion of any limitation on copyright and related rights, other than the so-called ‘three-step-test’. Article 10 (1) of the WCT states that ‘Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.’ Paragraph 2) adds that ‘Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author’. Delegations also issued the following Agreed Statement concerning Article 10: ‘It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws, which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital networked environment. It is also understood that Article 10 (2) of the WCT neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention’. With respect to the WPPT, article 16 (2) extends the ‘three-step test’ to the new rights provided under the Treaty, in the same way as does Article 10 (1) of the WCT. Article 16 (1) of the WPPT reproduces the main principle of article 15 (2) of the Rome Convention and states that: ‘Contracting Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of performers and producers of phonograms as they provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works’. This provision avoids once more that performers and producers of phonograms get better treatment than copyright holders. Finally, the Agreed Statement concerning article 10 of the WCT applies mutatis mutandis to article 16 of the WPPT. The application of the “three-step test” to the digital environment raises several questions. What constitutes a normal exploitation of a work in the digital networked environment? If technology makes copyright owners capable of controlling every use made of their work on the information highway and of collecting royalties for every authorised act, does this automatically imply that they should be allowed to 98 WPPT, art. 7 and 11. 99 Ficsor 2002, p. 521. 19do so?100 Would the imposition of a limitation in this case systematically affect the normal exploitation of the work? If the normal exploitation of the work is not affected, is the prejudice to the legitimate interests of the rights holder always unreasonable? Dreier maintains that the ‘normal exploitation’ of a work does not include ‘any’ exploitation possible with regard to protected material whether in print or electronic form. He suggests that a distinction should be made between those exploitation activities already undertaken by the rights owner or which the rights owner is likely to undertake in the near future, and those, which are only theoretically within his reach due to the extended possibilities of exercising the exclusive rights.101 This approach seems to roughly coincide with the one taken by the Arbitration Panel of the World Trade Organisation in the case opposing the European Union to the United States: ‘We believe that an exception or limitation to an exclusive right in domestic legislation rises to the level of a conflict with a normal exploitation of the work (i.e., the copyright or rather the whole bundle of exclusive rights conferred by the ownership of the copyright), if uses, that in principle are covered by that right but exempted under the exception or limitation, enter into economic competition with the ways that right holders normally extract economic value from that right to the work (i.e., the copyright) and thereby deprive them of significant or tangible commercial gains’. In developing a benchmark for defining the normative connotation of normal exploitation, we recall the European Communities' emphasis on the potential impact of an exception rather than on its actual effect on the market at a given point in time, given that, in its view, it is the potential effect that determines the market conditions’.102 Despite the adoption of the Agreed Statements, article 10 of the WCT and 16 of the WPPT left Contracting States little to go on for the adoption of new limitations on rights or for the adaptation of existing limitations. Around the world, countries have either completed the process of implementing the WIPO Internet Treaties or are still examining the issue,103 where the question of the limitations on copyright and neighbouring rights is often given particular attention.104 In the United States, the WIPO Internet Treaties were implemented into American law through the adoption of the Digital Millennium Copyright Act (DMCA)105 in 1998, which did not lead to the introduction of new limitations in the U.S Copyright Act. However, it did provide Congress with the opportunity to modify the limitations on ephemeral recordings by broadcasting organisations and on public libraries and archives. Apart from these two modifications, no other limitation was considered necessary, because the fair use doctrine was deemed sufficiently flexible to accommodate the needs of users and rights owners as a consequence of any new technological development. Japan revised the Copyright Law in 1999 to prevent the action for circumventing technological protection measures and removing or altering of rights management information such as electronic watermark devices.106 In Australia, the Parliament passed the Copyright Amendment (Digital Agenda) Act 2000107 with a view to implementing the WIPO Internet Treaties. The amendment, which came into force in Spring 2001, introduced a new technology-neutral right to communicate literary, dramatic and musical works to the public, which encompasses the making available of such works on-line, and modified a number of limitations on copyright in order to make them applicable to the digital environment. Besides implementing the mandatory limitation of article 5 (1) of the European Directive on Copyright in the Information Society, the Member States of the European Union may adopt in their national law any and all limitations contained in the exhaustive list of twenty-two optional limitations of the Directive. In any case, the 100 Hugenholtz 1996, at p. 94. 101 Dreier 2001, p. 4. 102 United States – Section 110(5) of the US Copyright Act, World Trade Organization, Panel Decision, WT/DS 160/R, 15 June 2000, §§ 6.183 and 184. 103 See: Government of Canada, Consultation Paper on Digital Copyright Issues, Intellectual Property Policy Directorate (Industry Canada) & Copyright Policy Branch (Canadian Heritage), Ottawa, June 22, 2001. 104 Copyright Law Review Committee, Simplification of the Copyright Act 1968 Part 1 - Report examining the exceptions to the exclusive rights of the copyright owners, Australian Attorney General’s Office, Canberra, September 1998. 105 Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998), art. 404. 106 Law to Partially Amend the Copyright Law, No. 77, 15 June 1999. 107 Copyright Amendment (Digital Agenda) Act 2000, No. 110, 2000 [Hereinafter referred to as ‘CADA’]. 20Member States must ensure that their existing limitations or any new limitation comply with the narrow wording of the Directive and with the ‘three-step-test’.108 3.2 Adaptation of limitations to the digital environment The scope of exclusive rights granted to authors and performers has been broadened to include all temporary and permanent reproduction on any medium whatsoever as well as all communications to the public including on-demand services. The question is therefore whether the limitations on copyright and neighbouring rights apply in the digital environment and whether some adaptations are necessary. An exhaustive review of the manner in which existing limitations should be adapted to the digital networked environment would go far beyond the scope of this study. With respect to limitations designed to protect the users’ freedom of expression and to foster the dissemination of knowledge, there seems to be little controversy concerning the application to the digital environment of the right to quote, the right to make reproductions for purposes of parody, and the limitations adopted for the benefit of handicapped persons. However, the application to the digital networked environment of two categories of limitations deserves greater attention in the context of this study, i.e. the limitation with respect to public libraries and archives, as well as those pertaining to educational and research institutions. The limitations and exceptions concerning libraries and archives appear to have been among the most hotly discussed provisions of the Directive in the Member States. The same questions arise with respect to educational and research institutions: what kind of reproductions may be permitted? What kinds of practices of communicating or making available materials through information network connections should be permitted?109 3.2.1 Libraries and archives Public and research libraries occupy a central role in the supply of information to the public. Either through catalogues, (electronic) databases, compilations of press articles, and other sources, libraries make current social and cultural information available to the public on a non-profit basis. In this context, one can easily understand the libraries' wish to be able to continue to provide the same services in the digital environment as they are providing in the analogue world. With the digitisation of works, several of the libraries’ and archives’ main activities have given rise to an intensification of use of works by the public, either off- or on-line, on the premises or at a distance. A number of these activities, when carried out in the digital environment, raise some uncertainty under copyright law, the most problematic of which are electronic document delivery services and the making of digital copies of materials held in their collections and the digitisation of copyright material held in the collections of libraries and archives. Lawmakers generally agree that the extension of the current limitations to the digital domain, thereby also allowing electronic document delivery or the digitisation of works, may not be valid in all cases. In practice, the differences in accessing and marketing material in the digital environment may warrant differing approaches in different situations.110 As appears below however, the reactions of the legislators vary significantly from one country to the next, even if these issues are still far from being settled everywhere. In view of the uncertainty left by copyright law, copyright owners are increasingly resorting to contractual terms and conditions in order to more clearly delineate the scope of what libraries and archives purchasing or licensing the copyright material may do with what he or she is buying or hiring. In principle, this approach allows copyright owners to better tailor the licence or purchase terms or conditions to what the client is paying for, but it does not take away the fact that some limitations on copyright and neighbouring rights may be necessary to permit libraries and archives to fulfil their mission in the digital environment. 108 Guibault 2003, p. 560. 109 Liedes 2002, p. 9-10. 110 The Parliament of the Commonwealth of Australia, Advisory Report on Copyright Amendment (Digital Agenda) Bill 1999, Commonwealth of Australia, Canberra, November 1999, p. 16. 213.2.1.1 Document delivery services Document delivery can best be described as the supply of copies of documents on demand to individual customers and users. Document supply is offered by a wide range of service providers: libraries (public, private, or university), scientific institutions and laboratories, commercial document suppliers, host organisations, publishers, database publishers, subscription agents, and the like. In the context of an electronic document delivery service, documents are selected by end users from bibliographic databases, ordered electronically, scanned or copied from existing digital files, transmitted through digital networks and subsequently downloaded.111 Until now, document delivery services were allowed, with respect to analogue supports, either on the basis of the private use exemption, where library employees would provide their patrons with single paper copies of works for purposes of research and study, or on the basis of a specific library exemption, which usually required compliance with strict conditions. The involvement of public libraries in the sphere of electronic document delivery is increasingly considered as coming in direct competition with the services of publishers or other commercial information providers, thereby affecting the normal exploitation of works and the legitimate interests of right holders. Two types of activities would fall under the category of ‘electronic document delivery services’, namely supplying patrons with digital reproductions in the context of an ‘interlibrary loan’ service and granting patrons remote access to their digital collections. The Australian government’s policy in amending the Act in 2000 to give copyright owners rights and protections consistent with the WCT also ensured that limitations in the Act were amended. Thus, as a result of the Copyright Amendment (Digital Agenda) (CADA), libraries and archives may, since 4 March 2001, generally digitise and communicate copyrighted material (for example, by email) for the same purposes for which that material could, to date, be copied. The Act extends the existing 'library and archives' limitations to the digital environment, and creates several new library exceptions specific to the digital environment. Without payment or permission, libraries and archives may: Copy and transmit 10% of a work or an article in a journal publication in response to a research or study request. Copy and electronically transmit (i.e. e-mail) a work to a user in response to a research or study request or to another library, as long as the material is not otherwise available within a reasonable time at an ordinary commercial price. Copy and electronically transmit (i.e. via e-mail or an Intranet) material in their collections to officers of the organisation for preservation and internal management purposes. Make material acquired in an electronic form available to the public within the institution's premises on a computer terminal that does not allow electronic reproduction (such as copying onto a disk) or communication (such as e-mailing or uploading to the Internet or an Intranet). The Act also requires that any digital copies made by the institution for the purpose of supplying material to users or other libraries must be destroyed as soon as practicable after the copy is sent. The CADA creates a different test of commercial availability for electronic material under the inter-library supply provisions. In recognition of the difference between electronic and print mediums, the Australian Government has proposed an amendment to the current section 50 of the Copyright Act. New section 50(7B) provides that if a reproduction is made in electronic form, then it will be subject to the commercial availability test, regardless of whether or not it constitutes more than an article contained in a periodical publication or reasonable portion of the work. Thus, any supply of works by libraries in electronic form under section 50 is subject to the commercial availability test, that is, whether the particular part of a work or periodical publication requested is available or not within a reasonable time at an ordinary commercial price.112 111 Hugenholtz and Visser 1995, p. 1. 112 The Parliament of the Commonwealth of Australia, Advisory Report on Copyright Amendment (Digital Agenda) Bill 1999, Commonwealth of Australia, Canberra, November 1999, p. 35. 22In the United States by contrast, inter-library loan activities are strictly regulated. A working group on inter-library loan and document delivery was convened in 1995 in the context of the Conference on Fair Use (CONFU). CONFU was set up to bring together copyright owner and user interests to discuss fair use issues and, if appropriate and feasible, to develop guidelines for fair use of copyrighted works by librarians and educators. In CONFU’s final report, published in 1998, the working group on inter- library loan and document delivery unanimously agreed, after considerable discussion, that it was premature to draft guidelines for digital transmission of digital documents.113 Not surprisingly, the Digital Millennium Copyright Act (DMCA)114 brought no modification to article 108 (e) of the U.S. Copyright Act, which allows inter-library loans and document delivery to take place only under the following, rather strict, conditions: ‘The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if— (1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and (2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.’ In Europe, acts that qualify as electronic document delivery fall under the exclusive right of authors to communicate a work to the public and the right of other right holders to make their subject-matter available to the public, pursuant to article 3 of the Directive on Copyright in the Information Society. Under article 5 (2) (c) of the Directive, Member States may provide only for a limitation on the right of reproduction ‘in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage’, and not on the right to communicate a work to the public. Recital 40 of the Directive expressly specifies that the limitations adopted for the benefit of certain non-profit making establishments, such as publicly accessible libraries and equivalent institutions should not cover uses made in the context of on-line delivery of protected works.115 As stated in the Explanatory Memorandum, the European Commission believes that any other solution would severely risk conflicting with the normal exploitation of protected material on-line and would unreasonably prejudice the legitimate interests of right holders. According to Ficsor, however, on-line delivery of protected works is still possible, under article 5 (3) (n) of the Directive,116 provided that the reproductions are made for specific purposes, such as research or private study, and that the works are used exclusively for such purposes. Such guarantees are given under article 5 (3) (n) through the condition that such use is only available through dedicated terminals on the premises of such establishments. As Ficsor points out, availability through dedicated terminals certainly necessitates the application of appropriate technological measures to achieve truly restricted availability.117 113 See: United States Patents and Trademark Office, The Conference on Fair Use, Final Report to the Commissioner on the Conclusion of the Conference on Fair Use, Washington D.C., Nov. 1998, p. 16. 114 Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998). 115 Directive on Copyright in the Information Society, Recital 40. 116 This article reads as follows: ‘Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases: (n) use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections’. 117 Ficsor 2002, p. 527. 233.2.1.2 Digitisation of works Libraries and archives see in the digital technology the ideal means to preserve or restore their collections. The question therefore arises of whether public libraries, archives and other similar institutions should be allowed to make digital reproductions of works and under what circumstances such reproductions could be allowed. Also, can a library or archives make a copy of a digital work in its collection? A library or archives could consider making such a digital reproduction in the case where the original of a work is currently in an obsolete format, where the technology required in order to consult the original is unavailable or where the institution’s copy of a work has been stolen or is deteriorating.118 Contrary to the making of reproductions of works for the library patrons’ personal use, activity which is usually limited to the reproduction of only portions of works, the digitisation of works for preservation or restoration purposes involves the reproduction in digital form of entire works. Recognising the library’s and archives’ capital role in the preservation of a nation’s cultural and historical heritage, the copyright systems of a number of industrialised countries expressly allow the digitisation of certain categories of works, albeit under more or less strict conditions. Most laws are silent however, on the question of whether libraries and archives may convert hardcopies of works into digital copies for purposes of preservation and restoration of their collections. Moreover, even if digitisation is allowed in certain circumstances, the law is not always clear on whether digitisation is permitted only for printed works or also for sound and audiovisual works. In Australia, the Standing Committee on Legal and Constitutional Affairs, which conducted an inquiry into the Copyright Amendment (Digital Agenda) Bill 1999, proposed to isolate the digital from the print environment by preventing copyright users from making digital reproductions of print material except in very limited circumstances.119 Under the CADA, the right to digitise print material has been made to fall under the copyright owner’s right of reproduction, where the notion of 'reproduction' is defined as follows: ‘a work is taken to have been reproduced if it is converted into or from a digital or other electronic machine-readable form and any article embodying the work in such a form is taken to be a reproduction of the work’. The Standing Committee expected that in most cases the conversion of copyright material from hardcopy to digital form would be the subject of commercial negotiations between copyright owners and libraries and archives, and between copyright owners and users. The Committee proposed that, in order to prevent users from digitising print material, only limited exceptions should apply to reproductions from hardcopy to digital form. In this context, the Standing Committed considered that, in the public interest, limited royalty-free copying of copyright materials by libraries and archives is an important exception to the exclusive rights of copyright owners that should be maintained. Consequently, libraries and archives may, under the CADA, make a digital copy of a print work for purposes of replacement of a work that has been damaged, lost, or stolen, which may subsequently be made available online within the premises of the library or archive. A similar limitation applies to the digital reproduction of artistic works for purposes of preservation against loss or deterioration. However, a person accessing such a digital reproduction would not be able to make an electronic or hardcopy of the reproduction or communicate it. In other words, the Australian limitation is restricted to the digitisation of print and artistic works and does not appear to allow the making of digital reproductions of sound recording and films for the purpose of preservation. In the United States, Section 108(c) of the U.S. Copyright Act was amended by the DMCA120 to allow the making of replacement copies of works that are damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if (1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and (2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy. The 118 See: Instituut voor Informatierecht 1998; and An Act to amend the Copyright Act, Statutes of Canada 1997, c. 24, art. 30.1 119 The Parliament of the Commonwealth of Australia, Advisory Report on Copyright Amendment (Digital Agenda) Bill 1999, Commonwealth of Australia, Canberra, November 1999, p. 8. 120 Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998), art. 404. 24Act defines ‘obsolete format’ as one that a machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace. ‘The copyright in an original artistic work that is held in the collection of a library or archives is not infringed in the circumstances described in subsection (3B) by the communication, by or on behalf of the officer in charge of the library or archives, of a preservation reproduction of the work by making it available online to be accessed through the use of a computer terminal: (a) that is installed within the premises of the library or archives; and (b) that cannot be used by a person accessing the work to make an electronic copy or a hardcopy of the reproduction, or to communicate the reproduction. (3B) The circumstances in which the copyright in the original artistic work is not infringed because of subsection (3A) are that either: (a) the work has been lost, or has deteriorated, since the preservation reproduction of the work was made; or (b) the work has become so unstable that it cannot be displayed without risk of significant deterioration.’ At the European level, the Directive on Copyright in the Information Society allows Member States to adopt limitations ‘in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage’. As the Explanatory Memorandum to the Directive specifies, the provision does not define those acts of reproduction, which may be exempted by Member States. In line with the ‘three-step-test’, Member States may not, however, exempt all acts of reproduction, but must identify certain special cases of reproduction, such as the copying of works that are no longer available on the market. The making of digital reproductions of works in a library’s collection for purposes of preservation would probably be an acceptable limitation under article 5 (2) (c) of the Directive, since this provision makes no distinction between reproductions made in analogue or digital format.121 This is in effect the interpretation followed, among others, by the Belgian and Dutch legislators, who plan to introduce in their respective copyright act a limitation allowing libraries and archives to make reproductions – whether analogue or digital – for purposes of preservation or restoration of their collection.122 Another question arising in this context, and to which there is no clear answer, concerns the extent to which the provisions of the Computer Programs Directive and the Database Directive allow libraries to make reproductions of digital works in their collection for purposes of preservation and archiving.123 Under the Computer Programs Directive, software users are permitted to make unauthorised reproductions of computer programs for back-up or decompilation purposes only, while users of databases may, under the Database Directive, make reproductions for purpose of illustration for teaching or scientific research. One could argue that the making of a reproduction of a computer program for purposes of preservation and archiving falls under the back-up exemption, but no similar exemption applies to the making of a reproduction of an electronic database. 3.2.2 Educational and research institutions Similar to librarians and archivists, educators and scientific researchers wish to take the full advantage of digital technology in their teaching or researching activities. The use of digital content in the fields of education and research opens the door to a greater variety of works from everywhere in the world and to a better exchange of ideas and knowledge among students or scientists. The digitisation and communication of works to the public, which play an important role in classroom, research, and distance learning activities, raise significant copyright issues. As in the case of libraries and archives, lawmakers generally agree that the extension of the current limitations to the digital domain, thereby also allowing certain classroom, research, or distance learning activities, may not be desirable in all 121 Krikke 2000, p. 156. 122 Nederlandse Tweede Kamer, Kamerstuk 2002-2003, 28482, No. 6, 17 March 2003, art. 16n; Sénat de Belgique, Session 2002-2003, Document législatif n° 2-704/8, 25 February 2003, art 22(8). 123 Instituut voor Informatierecht 1998, p. 25-26. 25cases. One of the main concerns of copyright owners is that, in the digital environment, limitations on copyright and related rights will undermine the markets of works distributed online. Publishers, particularly those of educational material, believe that ‘in a digital environment students will, with the aid of the limitations, be able to access, copy and transmit significant portions of their works without fear of infringement, possibly causing irreparable damage to their market’.124 A balance must be found between the interests of copyright and related rights owners and those of the educational and research institutions. As appears below however, the assessment by the national legislator of where the balance of interests should be drawn in the educational and scientific sector varies significantly from one country to the next, even if these issues are still far from being settled everywhere. The use of contractual terms and conditions has become an essential tool for the delineation of the scope of what these categories of users may do with what educational and research institutions are buying or hiring. While the contractual approach allows copyright owners to better tailor the terms or conditions to what educational and research institutions are paying for, it does not take away the fact that some limitations may be warranted to permit these institutions to take advantage of the digital technology in a way that does not affect the normal exploitation of copyrighted works or the legitimate interests of the right holders. 3.2.2.1 Classroom activities Educators have traditionally brought copyrighted books, videos, slides, sound recordings, and other media into the classroom, along with accompanying projection and playback equipment. Multimedia creators integrated these individual instructional resources with their own original works in a meaningful way, providing compact educational tools that allow great flexibility in teaching and learning. Material is stored so that it may be retrieved in a non-linear fashion, depending on the needs or interests of learners. Educators can use multimedia projects to respond spontaneously to students’ questions by referring quickly to relevant portions. In addition, students can use multimedia projects to pursue independent study according to their needs or at a pace appropriate to their capabilities. Classroom activities rely on a wide variety of basic and advanced telecommunications technologies to serve the students, including, for example, one-way and two-way open or scrambled broadcast, cable and satellite delivery, fiber-optic and microwave links, CD-ROMS, and the Internet. Furthermore, it is not uncommon to see that analogue works like music, photographs, images, drawings, and maps are digitised and used for educational purposes. From the point of view of the right holders, the limitations adopted for the benefit of classroom or research activities that would pose the greatest problem in a digital environment concern the digitisation of works, including sounds, texts and images, and the performance, display, or broadcast of such digital content in the classroom. In Australia, the educational licence has been extended to permit reproductions other than in hard copy format, and to include the communication of works. The Standing Committee on Legal and Constitutional Affairs, which conducted an inquiry into the Copyright Amendment (Digital Agenda) Bill 1999, considered that educational institutions should be able to make and network digital copies of works that have been published in print form on terms similar to the right given to copy print works. In addition, the educational statutory licence in Part VA of the Copyright Act was modified to allow educational institutions to copy transmissions (such as wireless broadcasts or cable television transmissions) without the permission of underlying copyright owners, subject to the payment of remuneration. This statutory licence has amended to refer to the new broader definition of ‘broadcast’, and extended to encompass the new right of communication to the public. This should enable educational institutions to communicate broadcasts they have copied, subject to the payment of equitable remuneration. Part VB of the Copyright Act provides educational institutions with a statutory licence to make copies of works subject to the payment of equitable remuneration. The CADA extends this scheme to apply to the reproduction and communication of works in electronic form. The reforms establish two separate schemes. One applies to hard copy material, and the other to works in electronic form. Existing limits on copying will apply generally to the new scheme (as appropriately amended to take into account differences in the digital environment). The new scheme 124 Brundenall 1997, p. 4. 26is drafted broadly enough to encompass future technological developments. It is a flexible scheme, which relies upon the agreement of the relevant parties. The CADA also amends the existing statutory licences for institutions assisting persons with a disability to the reproduction and communication of copyright material in electronic form. In short, as long as the material is used for 'educational purposes' and equitable remuneration is paid to the relevant collecting society, educational institutions in Australia do not need permission to: copy reasonable amounts of electronic material and communicate this to staff and students (e.g. over a closed circuit television system or Intranet); and copy and communicate larger amounts of electronic material that can't be obtained within a reasonable time at an ordinary commercial price by the staff or students. The amount of remuneration that must be paid is determined by negotiation between the institution and the relevant collecting society or copyright owner. If an agreement can't be reached, the Copyright Tribunal has jurisdiction to allocate an amount. Two working groups on Digital Images and Educational Multimedia were convened in 1995 in the context of the CONFU. As appears from the CONFU’s final report, the two working groups were unable to reach consensus on the endorsement of two sets of proposed guidelines for fair uses of copyrighted works in the educational sector.125 Nevertheless, given that a good proportion of participants supported the goal of achieving workable guidelines, but acknowledging the lack of consensus on the proposed guidelines, it was proposed that a monitored use period be instituted during which institutions could implement the proposed guidelines and use them in practical classroom and institutional situations. The Digital Images Guidelines apply to the creation of digital images and their use for educational purposes. The guidelines cover (1) pre-existing analogue image collections and (2) newly acquired analogue visual images. These guidelines do not apply to images acquired in digital form, or to images in the public domain, or to works for which the user has obtained the relevant and necessary rights for the particular use. According to these guidelines, educators, scholars, and students may digitise lawfully acquired images to support the permitted educational uses under these guidelines if the inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission. Images digitised for spontaneous use do not automatically become part of the institution’s image collection. Permission must be sought for any reuse of such digitised images or their addition to the institution’s image collection. The Educational Multimedia guidelines apply to the use, without permission, of portions of lawfully acquired copyrighted works in educational multimedia projects created by educators or students as part of a systematic learning activity by non-profit educational institutions. Essentially, students and educators may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia projects for their own teaching tools in support of curriculum-based instructional activities at educational institutions. In view of the lack of consensus over these guidelines, it is not surprising to note that no modification was made under the Digital Millennium Copyright Act (DMCA)126 to article 110 of the U.S. Copyright Act, which deals with the use of copyrighted material as ‘part of the systematic instructional activities of a governmental body or a non-profit educational institution’. In Europe, as we have seen in section 2.3.2 above, article 5 (3) (a) of the Directive on Copyright in the Information Society states that Member States may adopt limitations on the rights of reproduction and of communication to the public for purposes of illustration for teaching or scientific research. Contrary to the limitations allowed under the Directive with respect to libraries and archives, the limitations adopted for the benefit of educational institutions are not only confined to the right of reproduction, but may also apply to the right of communication to the public of a work. Moreover, the Directive makes no distinction between analogue and digital uses of works. Depending on the 125 United States Patents and Trademark Office, The Conference on Fair Use, Final Report to the Commissioner on the Conclusion of the Conference on Fair Use, Washington D.C., Nov. 1998, p. 11, 15. 126 Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998). 27language of the copyright legislation of each of the Member States, some room could therefore exist for educational institutions and individual teachers or students to make digital reproductions of works and to communicate works in digital form for teaching purpose, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non- commercial purpose to be achieved. Note however that, under article 5 (2) (a) of the Directive, the possibility for educational institutions to make reproductions of works under a reprography regime only applies to analogue means of reproduction. In principle, this provision would mean that a teacher or a student would be authorised to make a print out from an article in an encyclopaedia on CD-ROM and make reprographic reproductions of that print out for the needs of the class, but would not be allowed to make digital reproductions of that article. However, in its implementation Act, Austria allows schools and universities to make, for purposes of teaching, reproductions of works in a form other than paper, provided that the act pursue no direct or indirect economic or commercial advantage.127 3.2.2.2 Research activities More and more, scientific publishers offer an impressive number of on-line publications, research tools per discipline, access to the full text of works (pay-site), and ‘contents alert’ services allowing those who register to receive the tables of contents of the journals of their choice by e-mail. Electronic publishing not only makes it possible to consult the articles, whether free of charge or otherwise, but also to track down other sources of knowledge through a document search, links, interactive services, electronic commerce, etc. The Internet and electronic mail increasingly offer the research community opportunities that it did not previously have. Access to information has increased as has access to and discussion with those working in similar areas. One other aspect of digital technology, currently in its infancy but which presents enormous possibilities to the research community, is the use of the Internet to reach individuals as research subjects. In particular, there may be significant research benefits to be gleaned where the group being researched is normally difficult to reach and/or the issues being researched are of a particularly sensitive nature. In addition, just as the tools used by scientific research are changing, so too are the tools of scientific communication. Of course, most if not all the limitations described in the previous subsection are susceptible to find application in the context of research activities. For this reason, we will concentrate our attention in this subsection only on the limitations that are specifically implemented to facilitate the use of copyrighted material by researchers and on the implication these have in the digital environment. In Australia, the Standing Committee on Legal and Constitutional Affairs, which conducted an inquiry into the Copyright Amendment (Digital Agenda) Bill 1999, considered that the exceptions for fair dealing (including for research and study) should apply for copyright material that is reproduced from digital to digital form. The Committee expressed this view because the copyright owner has had the opportunity to agree to the digitisation process.128 However, the Committee concluded that the exceptions should not apply to allow the conversion of material in print form to digital form without the agreement of the copyright owner, except in very limited circumstances. The reasonable portion test for the copying of copyright material in electronic form for the purposes of research or study has been more narrowly defined under the CADA.129 An article contained in a periodical publication or published work, acquired in digital form by a library or archive, may be made available online within the premises by an officer in charge. Certain conditions would apply, including that a user could not use any equipment supplied by the library or archive to make an electronic copy of the work, nor could they communicate it . A hardcopy of a work available online may be made on the premises as long as it complies with fair dealing principles. 127 Urheberrechtsgesezt-Novelle 2003, art. 42(6). 128 The Parliament of the Commonwealth of Australia, Advisory Report on Copyright Amendment (Digital Agenda) Bill 1999, Commonwealth of Australia, Canberra, November 1999, p. 16. 129 Wiseman 1999, p. 52. 28In Europe, article 5 (3) of the Directive on Copyright in the Information Society contains two provisions directly related to the conduct of research activities, according to which Member States may adopt limitations on the rights of reproduction and of communication to the public with respect to the: ‘(a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved; (n) use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections’. These two limitations are optional. Member States are thus free to decide whether to implement them or not in national law. Given that only three Member States have implemented the Directive at this time, it is hardly possible to evaluate whether or how they will transpose these provisions into national law. The German legislator recently proposed a rather controversial provision to this effect. Until now Germany has had very restrictive legislation that, for example, made it illegal in most cases for scholars to put copyrighted material on even an internal computer network. The Law implementing the European Directive on Copyright in the Information Society would in effect grant exemption from copyright restrictions, for specified non-profit purposes, to ‘privileged institutions‘, meaning schools, higher-education institutions, and public research organizations. Only ‘small parts’ of copyrighted material would be distributed this way, and access to such material would be for ‘a defined, limited, and small’ number of people -- for example, the students in a particular course. Access would be controlled by the use of passwords or a similar mechanism. Moreover, to remain valid, this section of the law would have to be reviewed by Parliament and re-approved at the end of 2006. Academics say the new law would basically give them the same rights over copyrighted material in digital form as they already have over such material printed on paper. Just as they may photocopy pages from a book and distribute them to students registered for a class, they would now be allowed to post such material on a Web page with access limited to those same students. ‘§52a COMMUNICATION TO THE PUBLIC FOR TUITION AND RESEARCH (1) It is permitted to communicate to the public 1. Published small parts of works, works of small size, as well as individual contributions from newspapers and journals for illustration in tuition at schools, universities, non-commercial institutions of educational and further education, as well as at institutions of vocational training solely for the distinct circle of participants in the tuition; or 2. Published parts of works, of works of small size, as well as individual contributions form newspapers and journals, solely for a distinct circle of persons for their own scientific research; to the extent that the communication to the public is necessary for the purpose and justified for the non-commercial ends concerned. (2) The communication to the public of a work destined for use in tuition at schools is always only permissible with the consent of the person entitled [to grant permission]. The communication to the public of an audio-visual work is only permissible with the consent of the person entitled [to grant permission] within the first two years from the commencement of customary regular exploitation in movie theatres within the applicable boundaries of this law. (3) Permitted are also reproductions regarding par. (1) above the extent that the reproductions are necessary for the making of a communication to the public to the extent that the reproductions are necessary for the purpose concerned; (4) In respect of the communication to the public under (1) Nr. 2 above, an adequate remuneration must be paid. This also applies in respect of reproductions under (2). This claim can only be brought by a collective licensing society.’ The new legislation will put Germany, along with the Scandinavian countries and the United States, among the nations with a relatively tolerant approach to the use of copyrighted materials for specified educational purposes. France and Spain are among those with a more restrictive approach. 293.2.2.3 Distance learning activities Distance education is a particularly important topic for large countries, like Australia, Canada, and the United States, where a decentralised education system would have serious advantages. Distance learning is designed to enable remote students to have access to the same instructional materials and training activities that classroom-based students have, with the caveat that adequate, reasonable, and affordable safeguards are in place to protect against the misuse of copyrighted works in a way that would harm the market for the works. At its core, however, distance education means the delivery of instruction via one or more analogue or digital telecommunications technologies to traditional and non-traditional students or learners who are separated from the instructor by distance and/or time. The characteristic of distance education is not miles, but the use of technology to mediate instruction in a classroom, library or computer lab on a college or university campus or in a student's residence, workplace, or other location physically removed from the originating site on campus. Instruction may be live or asynchronous, may be video or text, or multimedia based, or a combination. It may be interactive, and may be taken for credit as part of a degree or certificate of competency program, for a continuing education unit, to improve employability, or just for a student's personal enrichment. Distance education technologies are employed to offer programs in hundreds of disciplines, from complete undergraduate and degree programs, to non-credit short courses. Distance education employs a wide variety of basic and advanced telecommunications technologies to serve the students, including, for example, one-way and two-way open or scrambled broadcast, cable and satellite delivery, fiber-optic and microwave links, CD-ROMS, and the Internet. Some courses employ combinations of these technologies, but increasingly, higher education institutions are employing the Internet for delivery of courses because it is easy for students to access no matter where they happen to be. The Internet exponentially increases the amount of interaction between student and instructor and among students, a boon for a delivery method often incorrectly perceived as solitary.130 In the United States, Section 403 of the DMCA gave the Register of Copyrights the task of submitting to the Congress, within six months of the date of enactment of the Act, recommendations on how to promote distance education through digital technologies, including interactive digital networks, while maintaining an appropriate balance between the rights of copyright owners and the needs of users of copyrighted works. In the course of 1998, the Register of Copyrights conducted public consultations on the issue in the framework of the Conference on Fair Use (CONFU)131 and published his report in May 1999.132 In preparing the Report, the Register of Copyright found that digital distance education was a field that was undergoing rapid - even explosive - growth, but one that was still in its infancy. Technological changes had made it possible for educators to reach a much broader student population with a richer variety of course materials than was ever possible before the advent of the Internet. At the same time, the same technological changes created a huge potential market for creators and publishers to license their works for use in distance education. Part of the challenge for the Office in formulating recommendations addressing digital distance education was to remove technologically obsolete legal provisions as an impediment to carrying forward the distance education activities sanctioned by Congress in 1976 into the twenty-first century, without killing a nascent and potentially important market for right holders. The conclusion was that this could best be accomplished by using the policy line drawn by Congress in 1976 as the point of reference for a technological updating of section 110(2) that would take account of the nature and capabilities of digital networks. At the same time, the Copyright Office was mindful of the risks that are inherent in the exploitation of copyrighted works in digital form. It concluded that additional safeguards were necessary to minimize the risk to right holders that legitimate use of works under an expanded and updated distance education exemption could result in copyright piracy. 130 American Association of Community Colleges, Comments from the AACC before the U.S. Copyright Office in Promotion of Distance Education through Digital Technology, Docket No. 98-12A, p. 2. 131 See: United States Patents and Trademark Office, The Conference on Fair Use, Final Report to the Commissioner on the Conclusion of the Conference on Fair Use, Washington D.C., Nov. 1998, p. 10. 132 See: United States Copyright Office, Report on Copyright and Digital Distance Education, Washington D.C., May 1999. 30As a result, Congress adopted, on November 2, 2002, an amendment to article 110 (2) of the U.S. Copyright Act, known as the Technology, Education and Copyright Harmonization, or TEACH Act.133 The key modifications of the TEACH Act include eliminating the requirement of physical classroom for remote site students, adding new safeguards to counteract new risks for copyright owners, and expanding the categories of works covered beyond the current non-dramatic literary and musical works to limited portions of films. The TEACH Act also redefines the terms and conditions on which accredited, non-profit educational institutions throughout the U.S. may use copyright protected materials in distance education-including on websites and by other digital means--without permission from the copyright owner and without payment of royalties. The law anticipates that students will access each "session" within a prescribed time period and will not necessarily be able to store the materials or review them later in the academic term; faculty will be able to include copyrighted materials, but usually only in portions or under conditions that are analogous to conventional teaching and lecture formats. In other words, this law is not intended to permit scanning and uploading of full or lengthy works, stored on a website, for students to access throughout the semester - even for private study in connection with a formal course. In Europe, as mentioned above, article 5 (3) of the Directive on Copyright in the Information Society provides that Member States may adopt limitations on the rights of reproduction and of communication to the public with respect to the ‘use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved.’ It is clear from the following passage of the Explanatory Memorandum to the Proposal for a Directive, that the European Commission did envisage the possibility for such institutions to take part in document delivery activities: ‘It does not only cover traditional forms of using protected material, such as through print or broadcasted media, but might also serve to exempt certain uses in the context of on-demand delivery of works and other protected matter. Member States will have to take due account of the significant economic impact such an exception may have when being applied to the new electronic environment. This implies that the scope of application may have to be even more limited than with respect to the ‘traditional environment’ when it comes to certain new uses of works and other subject matter’134. Although a number of higher educational institutions in Europe already offer distance education programs and diplomas, such as the ‘Open Universities’ of the Netherlands and the UK, no modification to the copyright act appears to have been necessary so far to address the specific needs of distance education in these countries. 3.3 Technological protection measures The digital networked environment has this paradoxical effect that, on the one hand, users can easily reproduce works in countless perfect copies and communicate them to thousands of other users, but that, on the other hand, rights owners are in a better position than in the analogue world to dictate the terms of use of their works. Encryption methods and other similar techniques allow right holders to control the use made of their works more effectively. Some of these techniques can have the effect of blocking access to the work altogether, while other techniques permit rights owners to monitor the actual use that a person makes of a copyrighted work with relative ease. Moreover, the digital environment fosters the conclusion of contracts, thanks to its structure and its interactive nature. Contracts are thus seen, in addition to or in place of copyright law, as a ready solution for the determination of the conditions 133 21st Century Department of Justice Appropriations Authorization Act (incorporating S. 487, Technology, Education And Copyright Harmonization Act, and S. 320, Technology, Education And Copyright Harmonization Act) Pub. L. 107.273, 2 November 2002, 116 STAT. 1911, Sec. 13301. Educational Use Copyright Exemption. 134 European Commission, Explanatory Memorandum to the Proposal for a European Parliament And Council Directive on the harmonization of certain aspects of copyright and related rights in the Information Society, 10 December 1997, COM(97) 628 final, p. 40. 31of use of protected material in the digital networked environment.135 The use of technological protection measures in conjunction with contractual agreements to delineate the terms and conditions of use of copyrighted material is not only strongly encouraged, but is also the object of legal protection. To this end, the delegations at the Diplomatic Conference for the adoption of the WIPO Internet Treaties agreed to the introduction of a key provision in both instruments which is aimed at guaranteeing the application of those kinds of technological means that are ‘indispensable for the protection, exercise and enforcement of copyright in the digital networked environment.’136 The question to which the Contracting Parties to the WIPO Internet Treaties are confronted now is how to reconcile the legislative provisions dealing with the protection of technological measures with the exercise of limitations on copyright and neighbouring rights. Before turning to this issue, let us first examine the international obligations with respect to technological protection measures. 3.3.1 International obligations with respect to technological protection measures A lot has been written over the new provisions of the WIPO Internet Treaties regarding technological protection measures (TPM’s).137 TPM’s are designed to prevent, in the digital networked environment, the unauthorised access to or use of works protected by copyright. Their legal protection comes as a third, cumulative, layer of protection for rights owners, in addition to copyright protection itself and to the technical protection of works. The obligation to grant legal protection for the use of TPM’s arises from Article 11 of the WCT and article 18 of the WPPT. Article 11 of the WCT states that ‘Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law’. According to the majority opinion, article 11 of the WCT requires that protection of TPM’s be granted only with respect to technologies used by rights owners in connection with the exercise of a right protected by copyright law. This means that the application of TPM’s to public domain material does not fall within the scope of article 11 and that it is not enough that TPM’s are ‘used in connection with the exercise’ of a copyright. In other words, the circumvention of a TPM in order to use a work while benefiting from one of the exceptions to copyright is, in principle, not prohibited by article 11 of the WCT.138 One of the questions that the WIPO Internet Treaties left open is what types of acts must be prohibited: the acts of circumvention themselves, the business or trafficking in circumventing technologies or both? Whereas Contracting Parties were free to implement the principle set out in articles 11 of the WCT and 18 of the WPPT according to their national legal traditions, there are significant differences in the manner in which countries have implemented this obligation. Since the accent of this study lies primarily on the intersection between the legal protection of TPM’s and the limitations on copyright and related rights, it is not my intention to describe these provisions in detail, preferring to refer the reader to one of the studies mentioned earlier. A very brief overview of the implementation legislation of Australia, Japan, the United States, and Europe should suffice to give a general idea of the situation. 3.3.1.1 United States In the United States, the DMCA added a new Chapter 12 to title 17 United States Code, which, among other things, prohibits circumvention of access control technologies employed by copyright owners to protect their works. Specifically, section 1201 provides in extensive detail that ‘no person shall circumvent a technological measure that effectively controls access to a work protected under this 135 Guibault 2002, p. 197. 136 Koelman 2003, p. 57 and seq.; Ficsor 2002, p. 544. 137 Koelman 2003 ; Kerr, Maurushat and Tacit, p. 575; Dussolier 2003, p. 62; Labbé 2002, p. 741 and ff.; Nimmer 2002, p. 193; Ficsor 2002, p. 544; De Werra 2001, p. 67 and ff.; Koelman 2000, p. 272. 138 Ficsor 2002, p. 547; and De Werra 2001, p. 98. 32title.’ Section 1201(a) of the U.S. Copyright Act prohibits the circumvention of a technological measure protecting the access to a work by making two different conducts unlawful: the act of circumvention itself and the business of trafficking in circumventing technology. This provision has been much criticised because it essentially creates a new ‘right of access’ to the works in favour of rights owners. Under the regime of the DMCA, unless the user can benefit from a specific exemption that would allow him to circumvent the technological access control to get access to a digital work, each access to the work is submitted to the conditions imposed by the copyright owner.139 In addition, section 1201(b) of the Act prohibits the preparatory activities to the circumvention of a technological measure protecting the use of a work. The decision of Congress not to prohibit the act of circumventing a technological measure protecting a copyright was made because it would otherwise penalise potential non-infringing uses such as fair use. United States courts have enforced the provisions of the DMCA concerning the prohibition on the circumvention of technological protection measures already on numerous occasions with various outcomes.140 3.3.1.2 Japan Japan has amended two statutes to address the circumvention of TPMs for the purpose of complying with the WIPO Treaties. The two statutes are the Japanese Copyright Law and the Japanese Unfair- Competition Law. The amendments to the Copyright Law focus on the circumvention of TPMs protecting works subject to copyright, whereas the amendments to the Unfair-Competition Law focus primarily on the circumvention of access control technologies.141 With effect from October 1, 1999, article 120 bis the Japanese Copyright Act provides as follows: ‘The following shall be punishable by imprisonment for a term not exceeding one year or a fine not exceeding one million Yen; (i) any person who transfers to the public the ownership of, or lends to the public, manufactures, imports or possesses for transfer of ownership or lending to the public, or offers for the use by the public, a device having a principal function for the circumvention of technological protection measures (such a device includes such a set of parts of a device as can be easily assembled) or copies of a program having a principal function for circumvention of technological protection measures, or transmits publicly or makes transmittable such program; (ii) any person who, as a business, circumvents technological protection measures in response to a request from the public;’142 The anti-circumvention provisions do not apply, for example, to devices that restrict the viewing or listening of a work, such as by encryption, because simple viewing or listening is not an act covered by copyright. Technological measures to prevent the individual use of pirated editions used for game software are not classified as technological measures too, because the act of individually using a pirated edition is not an act that is covered by copyright. Having due regard to the possible chilling effect of regulations banning every circumvention, the Japanese Copyright Law does not penalize the manufacture of the hacking device or end user’s circumvention. Article 2, paragraph 1, subparagraph 11 of the Japanese Unfair-Competition Law provides protection against the act of trafficking in devices and programs solely designed for circumventing an effective technological measure that restricts the recording or viewing of the content to specified parties. This provision is explained to address the problem of unauthorized descrambling of subscription satellite, subscription cable broadcasts, and pay per view services. The Japanese Unfair-Competition Law only 139 De Werra 2001, p. 104. 140 See for example: United States v. Elcomsoft, (N.D. Cal. 2002). RIAA v. Verizon Internet Services, CA 02-MS-0323 (D.D.C. 2002); Universal City Studios, Inc. v. Reimerdes, No. 00-9185 (2d Cir. 2001); and DVD Copy Control Assoc. v. Andrew Bunner, 2001 Cal. App. LEXIS 1179; 113 Cal. Rptr. 2d 338 (Cal. Ct. App. 2001). 141 Kerr, Maurushat and Tacit 2003a, p. 40. 142 Non-official English translation available on the website of Copyright Research and Information Center: . See also: Doi 2000, p. 207; Ficsor 2002, p. 562. 33prohibits the trafficking in devices or programs and not the manufacturing of such devices or programs or the act of circumvention itself.143 3.3.1.3 Australia In Australia, article 98 of the Copyright Amendment (Digital Agenda) Act144 amends article 116A to 116D of the Copyright Act. Through this provision, the Australian legislator chose not to proscribe the act of circumvention, but to make it illegal to manufacture or trade in devices that circumvent ‘effective technological measures’. The Copyright Act also makes it illegal to provide services for circumventing such measures. The expression ‘technological protection measure’ is defined in section 10(1) of the Act to mean: ‘a device or product, or a component incorporated into a process, that is designed, in the ordinary course of its operation, to prevent or inhibit the infringement of copyright in a work or other subject-matter by either or both of the following means: (a) by ensuring that access to the work or other subject matter is available solely by use of an access code or process (including decryption, unscrambling or other transformation of the work or other subject-matter) with the authority of the owner or licensee of the copyright; (b) through a copy control mechanism.’ The CADA only prevents the trafficking in circumvention technologies and services. Individuals who use such technologies are not targeted, nor is the act of circumvention itself. However, the trafficking activities that are targeted include making a ‘circumvention device available online to an extent that will affect prejudicially the owner of the copyright’.145 Section 132(5B) of the Copyright Act makes it an offence, inter alia, to make, sell, or promote a circumvention device, if the person knows or is reckless as to whether the device will be used to circumvent or facilitate the circumvention of a technological protection measure. The offence carries a maximum penalty of five years imprisonment. In the Sony Computer Ent. v. Stevens case,146 the Federal Court of Australia considered the provisions of the CADA concerning the prohibition on the circumvention of technological protection measures for the first time. Defendant Stevens was accused of permitting a circumvention of the access locks installed in Sony PlayStations by marketing or distributing computer chips known as ‘mod chips’. The applicants plead that Stevens sold devices having a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention, or facilitation of the circumvention of the "effective technological protection measure". It was further alleged that Stevens knew or ought reasonably to have known that the devices sold by him would be used to circumvent, or facilitate the circumvention of, the technological protection measure in violation of section 116A of the Copyright Act. In its decision, the Federal Court discussed the concept of ‘technological protection measure’ in detail. As the Court observes, the access codes used by Sony for the purpose of locking its PlayStations against the playing of unauthorised copies did not satisfy the conditions set in the Act: ‘There seems to be nothing in the legislative history to support the view that a technological measure is to receive legal protection from circumvention devices if the only way in which the measure prevents or inhibits the infringement of copyright is by discouraging infringements of copyright which predate the attempt to gain access to the work or to copy it. It follows that the protective devices relied on by the applicants cannot be regarded as technological protection measures if the only way in which they inhibit infringement of copyright in PlayStation games is by discouraging people from copying these games as a prelude to playing them on PlayStation consoles. It is necessary for the applicants to demonstrate that the protective devices are designed to 143 Koizumi 2002, p. 101. 144 On 17 August 2000, the Copyright Amendment (Digital Agenda) Bill 2000 passed the Senate and the House of Representatives. The Digital Agenda Bill received Royal Assent on 4 September 2000, and became the Copyright Amendment (Digital Agenda) Act 2000, Act No. 110 of 2000. The Digital Agenda Act came into force on 4 March 2001. 145 Copyright Amendment (Digital Agenda) Act 2000, art. 116A(vi). 146 Kabushiki Kaisha Sony Computer Entertainment v. Stevens, [2002] FCA 906 (26 July 2002). 34function, by their own processes or mechanisms, to prevent or hinder acts that might otherwise constitute an infringement of copyright’.147 While a further petition based on the infringement of the Fair Trading Act was also dismissed, the Court upheld a third claim asserting the infringement of the Trademark Act. In the opinion of the Court, the distribution of unauthorised copies of computer games by the defendant also constituted an unauthorised use of the registered trademarks stored electronically in such games. 3.3.1.4 European Union In Europe, the legal protection of technological measures is dealt with through the Directive 98/84/EC on the legal protection of conditional access services148 and by article 6 of the Directive on Copyright in the Information Society. Concentrating exclusively on the provisions of the Directive on Copyright in the Information Society, it is worth pointing out that, contrary to the United States, the European Union chose not to prohibit acts relating to the access to a work, but rather chose to prohibit the actual acts of circumvention of a technological measure protecting a work, as well as the business of importing, selling or otherwise dealing with products or providing services which: (a) are promoted, advertised or marketed for the purpose of circumvention of, or (b) have only a limited commercially significant purpose or use other than to circumvent, or (c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any effective technological measures. In addition, the expression ‘technological measures’ as defined under article 6 (3) of the Directive means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the right holder of any copyright or any right related to copyright. This formulation differs from article 11 of the WCT, which protects technological protection measures only to the extent that they restrict acts that are not authorised by the authors or permitted by law. Must one infer from this that the European legislator did not intend to allow the circumvention of a technological protection measure solely for the purpose of exercising a limitation on copyright? At this time, most Member States are still in the process of transposing the provisions Directive on Copyright in the Information Society into their national law, process which appears to be particularly challenging for the individual legislators. 3.3.2 Intersection between technological protection measures and limitations on copyright The intersection between technological protection measures and limitations on copyright and related rights is undeniably the thorniest issue confronting lawmakers in the field today. As much as the protection regimes differ from one another regarding the protection against acts of circumvention of technological measures, so do the solutions put in place to allow legitimate users to be able to exercise limitations on copyright with respect to works protected by such technological protection measures. As we will see below, the measures put in place by the legislatures are far from being fully satisfactory and there is reason to fear that the exercise of legitimate limitations on copyright may be seriously compromised in the digital networked environment through the application of technological protection measures.149 In fact, the generality of the international obligations regarding the adoption of adequate 147 Id., § 117 and 118. 148 Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access, O.J.C.E. L 320, 28 November 1998, p. 54 – 57, art. 4 which reads as follows: ‘Member States shall prohibit on their territory all of the following activities: (a) the manufacture, import, distribution, sale, rental or possession for commercial purposes of illicit devices; (b) the installation, maintenance or replacement for commercial purposes of an illicit device; (c) the use of commercial communications to promote illicit devices’. 149 See among others: Dussolier 2003, p. 73; Gottschalk 2003, p. 151; Labbé 2002, p. 743; Koelman 2001, p. 2; 35legal protection and effective legal remedies against the circumvention of effective technological measures has left the Contracting Parties with the difficult task of devising new rules, which do not fit well in the copyright and related rights framework. 3.3.2.1 United States In the United States, the Digital Millennium Copyright Act150 contains a number of exceptions to the prohibitions laid down in section 1201 of the Copyright Act. The main exception relates to section 1201(a), the provision dealing with the category of technological measures that control access to works. Section 1201(a)(1)(B)-(E) establishes an ongoing administrative rule-making proceeding to evaluate the impact of the prohibition against the act of circumventing such access-control measures. The Librarian of Congress may, on the recommendation of the Register of Copyrights, exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. The purpose of this proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make non-infringing uses due to the prohibition on circumvention of access controls. In conducting such rulemaking, the Librarian must take account of the following aspects: (i) the availability for use of copyrighted works; (ii) the availability for use of works for non-profit archival, preservation, and educational purposes; (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (v) such other factors as the Librarian considers appropriate. Following a first rulemaking proceeding conducted in 2000, the Librarian of Congress announced that two classes of works were subject to the exemption from the prohibition on circumvention of technological measures that control access to copyrighted works: compilations consisting of lists of websites blocked by filtering software applications; and literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsolescence. A new round of rulemaking started in October 2002, requesting interested parties to make comments before 18 December 2002 on whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make non-infringing uses due to the prohibition on circumvention. Public hearings have been hold on this issue in the course of the months of April and May 2003. Section 1201(e) of the U.S. Copyright Act lays down an exception to the operation of the entire section, for law enforcement, intelligence, and other governmental activities. Six additional exceptions to the prohibition on the circumvention of technological measures protecting the access of works included in the DMCA deal with reverse engineering, encryption research, protection of minors, personal privacy, security testing and non-profit library, archive and educational institutions. The prohibition on the act of circumvention of access control measures is subject to an exception that permits non-profit libraries, archives and educational institutions to circumvent solely for the purpose of making a good faith determination as to whether they wish to obtain authorized access to the work. This exception is of a rather limited practical significance since its application is restricted to acts accomplished for the purpose of deciding whether a library will obtain authorised access to a work. Finally, while section 1201(c)(1) specifies that ‘nothing in this section shall affect rights, remedies, limitations, or defences to copyright infringement, including fair use, under this title’, it does not apply to the circumvention of a technological measure protecting the access to a work since access is not a right protected under the Copyright Act. Indeed, emerging case law from the United States courts 150 Digital Millennium Copyright Act of 1998, Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998). 36shows that fair use constitutes no defence to acts of circumvention of technological measures.151 Scholars are concerned that Sections 1201 to 1204 of the DMCA will have a chilling effect on analysis, research, and publication, as the result of litigation itself or of the threat of or concern about potential litigation. The anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) are having ‘substantial negative impacts on the conduct of basic research in the U.S.’ Among other issues, the computing community as a whole considers that the law prevents scientists and technologists from pursuing legitimate research related to cryptography and other computer security areas.152 3.3.2.2 Japan The amendment brought in 1999 to the Japanese Copyright Law deals only very partially with the question of the intersection between the application of technological protection measures and the exercise of limitations on copyright. Article 30 (1) (ii) carves out from the private copy exception the case: ‘where such reproduction is made by a person who knows that such reproduction becomes possible by the circumvention of technological protection measures or it ceases to cause obstruction, by such circumvention, to the results of acts deterred by such measures ("circumvention" means to enable to do acts prevented by technological protection measures or to stop causing obstruction to the results of acts deterred by such measures, by removal or alteration of signals used for such measures; the same shall apply in Article 120bis, items (i) and (ii)) ("removal" or "alteration" does not include such removal or alteration as is conditional upon technology involved in the conversion of recording or transmission systems)’.153 In other words, this provision excludes from the application of Article 30 only those copies that are made in bad faith after circumvention of technological protection measures. The status of the remaining limitations enumerated in the Japanese Act in relation to the circumvention of technological protection measures is highly uncertain, since the amendment of 1999 made no explicit reference to any one of these limitations. Opinions of scholars are divided on this issue: some argue that technological protection measures can be circumvented in order to benefit from a limitation, while others maintain that limitations are only default rules of law, which may be set aside by contract or technology.154 This matter will eventually have to be resolved by the courts, presumably on the basis of public policy considerations.155 The only express exemption mentioned in the Japanese Unfair-Competition Law is provided at article 11, paragraph 1, subparagraph 7 of the Act. This provision makes it lawful to distribute devices used for testing or researching on technological protection measures in order to foster the development of technological improvements. Proposals for the inclusion of an exemption to allow the distribution of devices used for purposes of reverse engineering were abandoned in response to the lobby of the content industry.156 As Labbé concludes, the new Japanese rules may in theory allow the act of circumvention, particularly when this act is aimed at benefiting from a limitation on copyright, but in practice may prevent its exercise.157 151 See for example: Universal City Studios, Inc. v. Corley, F.3d, 2001 WL 1505495 2sd Cir.; RealNetworks, Inc. v. Streambox, Inc., 2000 U.S. Dist. 1889 (W.D. Wash. 2000); Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y., Aug. 17, 2000). 152 Samuelson 2001, p. 2028. 153 Non-official English translation available on the website of Copyright Research and Information Center: . See also: Doi 2000, p. 207; Ficsor 2002, p. 562. 154 Labbé 2002, p. 751. 155 Koizumi 2002, p. 104. 156 Id., p. 106. 157 Labbé 2002, p. 752. 373.3.2.3 Australia As mentioned in the previous section, Australian law targets only the circumvention devices and not the act of circumvention itself. Article 116 of the Australian Copyright Act provides for an exception to the prohibition on circumvention for making or importing a circumvention device for use ‘for a permitted purpose’ relating to works that are ‘not readily available in a form that is not protected by a technological protection measure’. Another exception in the Law allows the ‘making or importing’ of a circumvention device for ‘the purpose of enabling a person to supply the device, or to supply a circumvention service, for use only for a permitted purpose’. A person will be able to manufacture or supply a circumvention device or service if the person receives a declaration that it is required for a permitted purpose. A declaration must include certain specified information, including a statement that the copyright material the person wishes to access is not readily available in a form not protected by a technological protection measure. The CADA also introduces new penalties in relation to false declarations. The permitted purposes specified in the CADA are the reproduction of computer programs to make interoperable products, to correct errors and for security testing, activities covered by libraries (including Parliamentary libraries) and archives exceptions, the use of copyright material for the Crown, and activities covered by the statutory licences for educational institutions and institutions assisting persons with a disability under Part VB of the Copyright Act.158 The Standing Committee declared on this issue: ‘There is a need to allow copyright users to use circumvention devices in pursuit of legitimate purposes, such as system administration and library collection preservation. Leaving to one side the issue of whether such devices can be used without some form of adaptation — such adaptation being the making of a new circumvention device, there is the objection that in principle, users should not be deprived of innovative Australian circumvention devices for uses other than the infringement of copyright. In view of the need to ensure the continued operation of the exceptions to infringement, the Committee concludes that the permitted purposes exception should remain.159 3.3.2.4 European Union In Europe, the issue of the intersection between TPM’s and limitations on copyright and related rights is dealt under article 6 (4) of the Directive on Copyright in the Information Society. It provides that, in the absence of voluntary measures taken by right holders, including agreements between right holders and other parties concerned, Member States must take appropriate measures to ensure that right holders make available the means of benefiting from a certain number of limitations, to the extent necessary to benefit from these limitations and where that beneficiary has legal access to the protected work or subject-matter concerned. The limitations aimed by this provision are: Acts of reproduction by means of reprographic equipment; Acts of reproduction by publicly accessible libraries, educational establishments or museums, of by archives; Ephemeral recordings of works made by broadcasting organisations; Reproductions of broadcasts made by social institutions pursuing non-commercial purposes, such as hospitals or prisons; Use for the sole purpose of illustration for teaching or scientific research; Uses for the benefit of people with a disability; Use for the purposes of public security or to ensure the proper performance or reporting of administrative, parliamentary or judicial proceedings; This provision probably raises more questions than it pretends to answer. Among the several questions left unanswered by the Directive are the following: what type of voluntary measures must be put in place by rights owners? What are the criteria for considering the appropriateness of the 158 Copyright Amendment (Digital Agenda) Act 2000, art. 116A(2), (3), (4), (4B), (5), and (7). 159 The Parliament of the Commonwealth of Australia, Advisory Report on Copyright Amendment (Digital Agenda) Bill 1999, Commonwealth of Australia, Canberra, November 1999, p. 70. 38measures taken by the rights owners? How long must Member States wait before taking action and what type of action must instituted? More fundamentally, why have some limitations been included in the list and not others, such as the right to make reproductions for purposes of criticism, research, news reporting, and parody?160 The whole effect of this provision may be further undermined by the fourth indent of article 6 (4) which provides that: ‘the provisions of the first and second subparagraphs shall not apply to works or other subject-matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.’ The key purpose of this provision is to promote the conclusion of contractual agreements between copyright owners and users. Ficsor argues that ‘if the parties are left alone for a while, they will certainly be able to work out appropriate arrangements with due attention to the specific features of the acts covered by the exceptions and limitations listed in the first paragraph’.161 This is in my opinion a rather optimistic view of how contractual arrangements will take form in the digital networked environment. A more realistic – or perhaps pessimistic – view of contractual arrangements in the digital networked environment might be that most contracts will be in the form of ‘take-it-or-leave-it’ licences, where users will only have the choice of accepting or refusing the terms of the licence presented to them on the Internet. In other words, the digital networked environment offers no guarantee that the parties will be able to ‘individualise’ their contract in a manner that takes due account of ‘the specific features of the acts covered by the exceptions and limitations’ so that everyone is better off.162 It is still too early to tell how the different Member States will implement this complex provision. The safest way to follow for the Member States would unquestionably be to keep their implementing legislation close to the wording of the Directive. As a consequence, the intersection between the application of technological protection measures and the exercise of limitations on copyright may remain vague for quite some time before the practicable solution can crystallise in the law. In practice, it is difficult to conceive how these rules may work out for institutions and individuals. For instance, what would be the point for a rights owner to provide the means to circumvent a technological protection measures for the making of a reprographic reproduction on paper or other similar support? Under the regime of article 6, libraries can only hope to obtain the means to circumvent a technological measures for certain acts of reproduction of works for purposes of preservation or restoration, not for communication to the public. While Recital 48 of the Directive on Copyright in the Information Society declares that the legal protection afforded technological protection measures must not create an obstacle to cryptography research, it remains to be seen how legislators and courts will interpret the exception listed in article 6 (4) of the Directive allowing circumvention for the sole purpose of illustration for teaching or scientific research. 4. Conclusion Limitations on copyright and related rights undeniably form an integral part of the copyright and related rights systems, for they protect the users’ freedom of expression and foster the dissemination of knowledge. Among the limitations adopted for the safeguard of the user’s freedom of expression, the right to quote is undeniably the most important one. It serves as the common denominator of most other limitations, since quotations can be made for scientific, critical, informatory or educational purposes. Besides the right to quote, the possibility to make parodies is also an essential part of the user’s freedom of expression, since parodies are considered not only to have entertainment value, but also to serve a critical function, pointing out human imperfections and the ironies of our existence. A number of limitations share the common objective of encouraging dissemination of knowledge and information among the members of society at large. This is the case of the limitations adopted in 160 Dussolier 2003, p. 73. 161 Ficsor 2002, p. 561. 162 Guibault 2002, p. 203. 39favour of educational institutions and those adopted in favour of public libraries, museums and archives, and in favour of handicapped persons. These limitations serve as a tool in carrying out a government's information policy and in enhancing democracy within society. However, there is no harmonisation of the law on this point and the need to adopt specific measures to meet this particular common good objective is assessed differently from one country to the next. With the advent of the digital networked environment, scholars and lawmakers generally agree that the extension of the current limitations to the digital domain should be encouraged, but that it may not be valid in all cases. In most cases, the balance of interests established through the recognition of limitations on copyright and related rights has not been fundamentally affected as a result of the emergence of the information society. With respect to limitations designed to protect the users’ freedom of expression and to foster the dissemination of knowledge, there seems to be little controversy that the right to quote, the right to make reproductions for purposes of parody and the limitation adopted for the benefit of handicapped persons find application in the digital networked environment, as long as the conditions of use set out in the law are met. In the cases of some limitations however, certain adjustments may be needed, for example, to ensure compliance of the limitations with the ‘three-step-test’, as laid down in articles 10 of the WCT and 16 of the WPPT. This would appear to be the case with regard to the application in the digital networked environment of limitations adopted for the benefit of public libraries and archives on the one hand, and of educational institutions and research on the other hand. Here again, the legislator’s position on the manner in which the copyright act should be modified to take account to the digital environment varies widely from one country to another. Technological protection measures are increasingly used in the digital networked environment to delineate the terms and conditions of use of copyrighted material. Such an extra layer of protection is not only strongly encouraged, but is also the object of specific legal protection under the WIPO Internet Treaties. In view of the generality of the international obligations regarding the adoption of adequate legal protection and effective legal remedies against the circumvention of effective technological measures, the Contracting Parties to the WIPO Treaties have been left with the daunting task of devising new rules, which do not fit well in the copyright and related rights framework. Not only do the ‘adequate legal protection and effective legal remedies’ differ significantly per country, but legislators are also envisaging various solutions with respect to the intersection between technological protection measures and limitations on copyright and related rights. In fact, efforts in that sense may altogether be vain at this time, since technology is still too primitive to accommodate all the subtleties of the law.163 A solution to the legislator’s dilemma regarding the intersection between technological protection measures and limitations probably may come during the future conduct of the built-in revision process of copyright and related rights laws. The rulemaking proceeding mandated by the Digital Millennium Copyright Act must take place every three years to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make non- infringing uses due to the prohibition on circumvention of access controls. Article 12 of the Directive provides for a similar review mechanism according to which not later than 22 December 2004 and every three years thereafter, the Commission shall submit to the European Parliament, the Council and the Economic and Social Committee a report on the application of this Directive. In particular, the Commission shall examine the application of Articles 5, 6 and 8 in the light of the development of the digital market. In the case of Article 6, it shall examine in particular whether that Article confers a sufficient level of protection and whether acts which are permitted by law are being adversely affected by the use of effective technological measures. 163 Koelman 2003, p. 15. 405. Bibliography Ader 1994 B. Ader, ‘Humour et liberté d'expression : Aperçus jurisprudentiels’, Légipresse 1994/15, pp. 1-12. Alberdingk Thijm 1999 C. Alberdingk Thijm, ‘Brief naar het front: nieuws en fair use’, Informatierecht / AMI 1999/23, pp. 143-147. Bochurberg 1994 L. Bochurberg, Le droit de citation, Paris, Masson, 1994. Brundenall 1997 P. Brundenall, ‘The future of fair dealing in Australian copyright law’, Journal of Information Law and Technology 1997/1 available at: http://elj.warwick.ac.uk/jilt/copyright/97_1brud/). Center for Copyright Studies 2001 Center for Copyright Studies, A comparative study of library provisions: from photocopying to digital communication, Australian Copyright Council, Redfern, 2001. De Werra 2001 J. De Werra, ‘The legal system of technological protection measures under the WIPO Treaties, the DMCA, the European Union Directives and other national laws (Japan, Australia)’, RIDA 2001/189, pp. 66-212. Doi 2000 T. Doi, ‘WIPO Copyright Treaty and Japanese Copyright Law: A Comparative Analysis’, RIDA 2000/186, pp. 155-219. Dreier 1997 T. Dreier, Copyright Law and Digital Exploitation of Works – The Current Copyright Landscape in the Age of the Internet and Multimedia, Opinion commissioned by the Friedrich Ebert Foundation, IPCC, 1997. Dreier 1998 T. Dreier, ‘Adjustment of Copyright Law to the Requirements of the Information Society’, IIC 1998/06, pp. 623-639. Dreier 2001a T. Dreier, ‘Balancing Proprietary and Public Domain Interests: Inside or Outside of Proprietary Rights?’, in R. Cooper Drefuss, D. Leenheer Zimmerman and H. First, Expanding the Boundaries of Intellectual Property, Oxford, Oxford University Press, 2001, pp. 295-316. Dreier 2001b T. Dreier, New legislation on copyright and databases and its impact on society Second Joint ICSU Press - UNESCO Expert Conference on Electronic Publishing in Science, UNESCO House, Paris, Wednesday, 21 February 2001, available at: http://www.ira.uka.de/~recht/deu/iir/dreier/publications/second_joint_icsu_press.html Dreier 2002 T. Dreier, ‘Digital Rights Management’, Report presented at the European Commission Conference entitled ‘European Copyright Revisited’, Santiago de Compostela, 16-18 June 2002, available at: http://www.zar.uni- karlsruhe.de/admin/getpdf.php?VID=115 Dussolier 2003 S. Dussolier, ‘Exceptions and Technological Measures in the European Copyright Directive of 2001 – An Empty Promise’, IIC 2003/1, pp. 62-75. Elkin-Koren 1996 N. Elkin-Koren, ‘Public/Private and Copyright Reform in Cyberspace’, Journal of Computer-Mediated Communication 1996/2:2. Available at: . Ficsor 2002 M. Ficsor, The law of copyright and the internet : The 1996 WIPO Treaties, their interpretation and implementation, Oxford, Oxford University Press, 2002. Fisher 1995 F. Fischer, ‘Zur Zulässigkeit des Vertriebs traditioneller und elektronisierter Pressespiegel durch kommerzielle Anbieter’, ZUM 1995/2, pp. 117-122. 41Fraser 1998 S. Fraser, ‘The Conflict Between the First Amendment and Copyright Law and Its Impact on the Internet’, Cardozo Arts & Entertainment Law Journal 1998/16, pp. 1-52. Gautier 1999 P.-Y. Gautier, Propriété littéraire et artistique, 3d ed., Paris, PUF, 1999. Geller 1992 P.E. Geller, ‘Reprography and other processes of mass use’, RIDA 1992/153, pp. 3-73. Geller and Nimmer P.E. Geller and M.B. Nimmer, International Copyright Law and Practice, Newark, Matthew Bender & Co., looseleaf. Gottschalk 2003 E. Gottschalk, ‘Das Ende von ‘fair use’? – Technische Schutzmaßnahmen im Urheberrecht der USA’, MMR 2003/3, pp. 148- 156. Guibault 1998 Council of Europe Steering Committee on the Mass Media, Discussion Paper on the Question of Exemptions and Limitations on Copyright and Neighbouring Rights in the Digital Era, prepared by L. Guibault, Strasbourg, 1 September 1998, MM-S- PR (98) 7 rev. Guibault 1999 L. Guibault, ‘Limitations Found Outside Copyright Law – General Report’, in L. Baulch, M. Green and M. Wyburn (ed.), ALAI Study Days – The Boundaries of Copyright: its proper limitations and exceptions, Sydney, Australian Copyright Council, 1999, pp. 42-54. Guibault 2002 L. Guibault, Copyright Limitations and Contracts: An Analysis of the Contractual Overridability of Limitations on Copyright, The Hague, London, Boston, Kluwer Law International 2002, Information Law Series No. 9. Guibault 2003 L. Guibault,‘Le tir manqué de la Directive européenne sur le droit d’auteur dans la société de l’information’, Cahiers de propriété intellectuelle 2003/15, pp. 537-573. Hugenholtz 1989 P.B. Hugenholtz, Auteursrecht op informatie, diss. Amsterdam (UvA), Deventer, Kluwer, 1989. Hugenholtz 1996a P.B. Hugenholtz, ‘Adapting Copyright to the Information Superhighway’, in P.B. Hugenholtz (ed.), The Future of Copyright in a Digital Environment, The Hague, Kluwer Law International, 1996, Information Law Series – 4, pp. 81-102. Hugenholtz 1996b P.B. Hugenholtz, ‘De Databankrichtlijn eindelijk aanvaard: een zeer kritisch commentaar’, Computerrecht 1996/4, pp. 131- 138. Hugenholtz 1997 P.B. Hugenholtz, ‘Fierce Creatures. Copyright Exemptions: Towards Extinction?’, keynote speech, IFLA/IMPRIMATUR Conference, Rights, Limitations and Exceptions: Striking a Proper Balance, Amsterdam, October 30-31, 1997. Hugenholtz 1998 P.B. Hugenholtz, Het Internet: het auteursrecht voorbij?, preadvies NJV, Deventer, 1998. Hugenholtz 2000a P.B. Hugenholtz, Sleeping with the enemy, Oratie Amsterdam UvA, Vossiuspers AUP, 2000. Hugenholtz 2000b P.B. Hugenholtz, ‘Copyright, Contract and Code: What Will Remain of the Public Domain?’, Brooklyn Journal of International Law 2000/26, pp. 77-90. Hugenholtz 2000c P.B. Hugenholtz, ‘Copyright and Freedom of Expression in Europe’, in: R. Cooper Dreyfuss, D. Leenheer Zimmerman and H. First (eds.), Innovation Policy in an Information Age, Oxford: Oxford University Press, 2000, pp. 343-363. 42Instituut voor Informatierecht 1998 Instituut voor Informatierecht, Auteursrechtelijke aspecten van preservering van elektronische publicaties, Universiteit van Amsterdam, Februari 1998, IViR Rapporten – 7. Kabel 1999 J.J.C. Kabel, ‘Privacy of auteursrecht? Enkele ongekamde gedachten over grondslagen van het recht van eerste openbaarmaking’, in J.M. van Buren-Dee, M.C. van Gastel and E.H. Hondius (eds.), Privaatrecht en Gros, Utrecht, Intersentia, 1999, pp. 237-252. Kerr, Maurushat and Tacit 2003a I. Kerr, A. Maurushat and C.S. Tacit, ‘Mesures de protection technique – Partie I – Tendances en matière de mesures de protection technique et de technologies de contournement’, Cahiers de propriété intellectuelle 2003/15, pp. 575-617. Kerr, Maurushat and Tacit 2003b I. Kerr, A. Maurushat and C.S. Tacit, ‘Technical Protection Measures : Part II – The Legal Protection of TPMs’, Canadian Heritage, Ottawa, 2003. Klingsporn 1999 G.K. Klingsporn, ‘The Conference on Fair Use (CONFU) and the Future of Fair Use Guidelines’, Columbia VLA- Journal of Laws & the Arts 1999, pp. 101-126. Koelman 2000 K.J. Koelman, ‘A Hard Nut to Crack: The Protection of Technological Measures’, E.I.P.R. 2000, pp. 272-288. Koelman 2001a K.J. Koelman, ‘The protection of technological measures vs. the copyright limitations’, Paper presented at the ALAI Study Days – Adjuncts and Alternatives for Copyright, Columbia University, New York, 15 June 2001, available at: http://www.ivir.nl/publications/koelman/alaiNY.html Koelman 2001b K.J. Koelman, ‘Bescherming van technische voorzieningen’, AMI 2001-1, pp. 16-27. Koelman 2003 K.J. Koelman, Auteursrecht en technische voorzieningen. Juridische en rechtseconomische aspecten van de bescherming van technische voorzieningen, ITeR Reeks, Den Haag: SDU 2003. Koelman and Bygrave 2000 K.J. Koelman and L. Bygrave, ‘Privacy, Data Protection and Copyright: Their Interaction in the Context of Electronic Copyright Management Systems’, in P.B. Hugenholtz (ed.), Copyright and Electronic Commerce, The Hague, Kluwer Law International 2000, pp. 59-123. Koizumi 2002 N. Koizumi, ‘Protection of Technological Measures under Japanese Law’, Journal of Digital Property Law 2002/2, pp. 97- 107. Krikke 1999 J.I. Krikke, ‘Document delivery: onderweg naar morgen’, Informatierecht/AMI 1999/8, pp. 121- 127. Krikke 2000 J.I. Krikke, Het bibliotheekprivilege in het digitale tijdperk, Deventer, Kluwer, 2000, coll. Nationaal Programma Informatietechnologie en Recht, No. 29. Labbé 2002 E. Labbé, ‘L’accès aux dispositifs de neutralisation des oeuvres verrouillées: une condition nécessaire à l’exercice d’exceptions au droit d’auteur’, Cahiers de propriété intellectuelle 2002/14, pp. 741-774. Liedes 2002 J. Liedes, ‘Copyright in the Knowledge Society of the 21th Century:Who owns knowledge? Access to Information and Questions of Intellectual Property’, paper presented at the UNESCO Regional Pre-Conference for the World Summit on Information Society (WSIS) (Europe Region), June 27-29, 2002, ZDF, Conference Centre, Mainz. Leinemann 1998 F. Leinemann, Die Sozialbindung des ‘Geistigen Eigentums’, Baden-Baden, Nomos Verlagsgesellschaft, UFITA- Schriftenreihe, 1998. Loewenheim 1999 U. Loewenheim, in G. Schricker (ed.), Urheberrecht Kommentar, München, Verlag C.H. Beck, 1999, p. 1117. 43Lucas 1998 A. Lucas, Droit d'auteur et numérique, Paris, Litec, 1998. Lucas and Lucas 2001 A. Lucas and H.-J. Lucas, Traité de la propriété littéraire et artistique, 2sd ed., Paris, Litec, 2001. Melichar 1999 F. Melichar in G. Schricker (ed.), Urheberrecht Kommentar, München, Verlag C.H. Beck, 1999, p. 743. Neumann 1994 T. Neumann, Urheberrecht und Schulgebrauch, Baden-Baden, Nomos Verlagsgesellschaft, 1994, UFITA-Schriftreihe. Nieuwenhuis 1997 A.J. Nieuwenhuis, Over de grens van de uitingsvrijheid, Nijmegen, Ars Aequi Libri, 1997. Nimmer 2002 D. Nimmer, ‘How Much Solicitud for Fair Use is There in the Anti-Circumvention Provision of the Digital Millennium Copyright Act?’, in N. Elkin-Koren and N.W. Netanel (eds.), The Commodification of Information, The Hague, London, Boston, Kluwer Law International, 2002, Information Law Series No. 11, pp. 193-221. Patry 1995 W.F. Patry, The Fair Use Privilege in Copyright Law, 2d ed., Washington D.C., BNA Books, 1995. Quaedvlieg 1998 A.A. Quaedvlieg, ‘Copyright's Orbit Round Private, Commercial and Economic Law – The Copyright System and the Place of the User’, IIC 1998/29, pp. 420-437. Reinbothe 2001 J. Reinbothe, ‘Die EG-Richtlinie zum Urheberrecht in der Informationsgesellschaft’, GRUR Int. 2001/8-9, p. 733-744. Reinbothe and Von Lewinski 1993 J. Reinbothe and S. von Lewinski, The E.C. Directive on Rental and Lending Rights and on Piracy, London, Sweet & Maxwell, 1993. Renouard 1838 A.-Ch. Renouard, Traité des Droits d'Auteurs, Paris, J. Renouard & Cie, 1838, vol. 1 & 2. Ricketson 1987 S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986, Centre for Commercial Law Studies, Queen Mary College, Kluwer, 1987. Samuelson 2001 P. Samuelson, ‘Anticircumvention Rules: Threat to Science’, Computers and Science 2001/293, pp. 2028-2031, available at: http\\www.sciencemag.org Schricker 1997 G. Schricker (ed.), Urheberrecht auf dem Weg zur Informationsgesellschaft, Baden-Baden, Nomos Verlagsgesellschaft, 1997. Spoor 1976 J.H. Spoor, Scripta Manent – de reproduktie in het auteursrecht, Groningen, H.D. Tjeenk Willink, 1976. Spoor 1999 J.H. Spoor, ‘General aspects of exceptions and limitations: general report’, in L. Baulch, M. Green and M. Wyburn (eds.), ALAI Study Days – The Boundaries of Copyright: its proper limitations and exceptions, Sydney, Australian Copyright Council, 1999, pp. 27-41. Spoor and Verkade 1993 J.H. Spoor and D.W.F. Verkade, Auteursrecht, 2sd ed., Deventer, Kluwer, 1993. Sterling 1998 J.A.L. Sterling, ‘Creator's Right and the Bridge between Author's Right and Copyright’, IIC 1998/29:3, pp. 302-308. Stewart and Sandison 1989 S.M. Stewart and H. Sandison, International Copyright and Neighbouring Rights, 2sd ed., London, Butterworths, 1989. 44Strowel 1993 A. Strowel, Droit d’auteur et copyright – Divergences et convergences, Paris, L.G.D.J., 1993. Vaver 2002 D. Vaver, ‘Copyright Developments in Europe : The Good, the Bad and the Harmonized’, in N. Elkin-Koren and N. Weinstock Netanel (eds.), The Commodification of Information, The Hague, London, Boston, Kluwer Law International, 2002, Information Law Series No. 11, pp. 223-237. Visser 1996 D.J.G. Visser, ‘Copyright Exemptions Old and New’, in Hugenholtz, P.B. (ed.), The Future of Copyright in a Digital Environment, The Hague, Kluwer Law International, 1996, Information Law Series – No. 4, pp. 49-56. Wild 1999 Wild, in G. Schricker (ed.), Urheberrecht Kommentar, München, Verlag C.H. Beck, 1999, pp. 1502-1503. Wiseman 1999 L. Wiseman, Copyright in Universities, Higher Education Division Department of Education, Training and Youth Affairs, Canberra, July 1999, 99–E Occasional Paper Series. Wistrand 1968 H. Wistrand, Les exceptions apportées aux droits de l’auteur sur ses oeuvres, Paris, Editions Montchrestien, 1968. 45Copyright Bulletin October 2003 DOCTRINE COLLECTIVE MANAGEMENT OF COPYRIGHT AND RELATED RIGHTS AT A TRIPLE CROSSROADS: SHOULD IT REMAIN VOLUNTARY OR MAY IT BE “EXTENDED” OR MADE MANDATORY? Dr. Mihály Ficsor* I. Introduction It is kind of legal commonplace that the exclusive right of authors to exploit their works or to authorize others to do so is a basic element of copyright. Where recognized, this right is also important for the beneficiaries of related rights. The exclusive nature of a right means that only its owner – and nobody else – is in a position to decide whether he or she will authorize the performance of any of the acts covered by the right; and if he or she decides to do so - under what conditions and against what kind of remuneration. It goes without saying that an exclusive right may be enjoyed, to the fullest possible extent, if it may be exercised individually by the owner of the right himself. In such a case, the owner maintains his control over the exploitation and dissemination of his work,1 and he may more or less closely monitor whether his rights are duly respected. At the time when the international copyright system was being established, the individual exercise of certain rights – first of all the right of public performance of non-dramatic musical works – seemed very difficult. Later, with the ever evolving technologies, the number of areas in which the individual exercise of rights was becoming equally difficult, and in some cases even impossible, started to grow: the establishment of collective management organizations in such cases was the logical solution for the right owners. In the case of a traditional, fully fledged collective management system, the right owners authorize collective management organizations to monitor the use of their works, to negotiate with prospective users, to grant them licenses under certain conditions and on the basis of a tariff system, to collect the remuneration, and to distribute it among the owners of rights. Many elements of the management of rights in that type of system are standardized – in fact, they may even be “collectivized”: the same tariffs, the same licensing conditions and the same distribution rules may apply to all works which belong to a given category; sometimes social and/or “cultural” deductions are also made, etc. There are certain cases where the right owners do authorize the collective management organization to carry out only some of the functions that have been mentioned. In some countries, for example, the authors of dramatic works have preferred to leave collective * President, Hungarian Copyright Council, Budapest. 1 In this paper, unless the contrary follows from the given context, “copyright” means also related rights, and “work” also means objects of related rights.2 negotiations and establishment of framework agreements with the representatives of theatres, to their societies – this is one of the reasons why such a system may be characterized as collective management, even though a partial one. However, as a rule, they conclude directly their contracts with each of the theatres, and entrust the collective management organization with only the monitoring of performances, as well as the collecting and distribution of royalties. For corporate right owners – producers, publishers, etc. – it also becomes inevitable or at least desirable in certain situations to set up an organization or to join an existing one in order to exercise their rights. Although some of them - e.g. music publishers in some countries – are members of traditional collective management organizations and accept their rules thereof, others prefer different forms of exercising their rights which have as little “collective” elements as possible. This leads to the setting up of an agency-type system, where the only exclusive task, or almost, is the collection and transfer of royalties as quickly and as precisely as possible, at as low cost as possible, and as much in proportion with the value and actual use of the productions involved as possible. The most developed form of such agency-type systems – frequently referred to as rights-clearance systems – is the one where tariffs and licensing conditions are individualized. Thus, the main element of joint management in this case is that one single licensing source is offered, with a significant reduction of transaction costs for both owners of rights and users. Fully-fledged collective management organizations and agency-type bodies as those described above, do function side by side. Occasionally they also establish alliances or “coalitions”, when this is needed for pursuing of common interests or for the joint exercise or enforcement of certain rights. There is a form of partial collective management which needs special mentioning: the management of mere rights to remuneration (the reason why in this case the management system is not a fully fledged one, is the fact that the rights themselves are not exclusive). It’s worth noting that there could be significant differences between various rights to remuneration: from the viewpoint of their roots or their copyright status. In some cases, what is involved is the limitation of an exclusive right to a right to remuneration (e.g. in several countries the exclusive right of reproduction, as regards “private copying” and reprographic reproduction – at least in certain cases – is limited to a mere right to remuneration); in other cases, the right itself is established as a mere right to remuneration (such as the resale right or the “Article 12 rights” of performers and/or producers of phonograms); and in another group of cases, the right to remuneration is a “residual right” (for example, the European Community’s Council Directive No. 92/100/EEC of November 19, 1992, on Rental Right and Lending Right and on Certain Rights Related to Copyright in the Field of Intellectual Property has introduced such a right in favour of the authors and performers – the “unwaivable right to equitable remuneration” in respect of the rental of phonograms and audiovisual works (into which their works or, respectively, performances have been incorporated). With the ever broader application of the digital technology, and particularly with the world- wide use of the Internet, a new situation has emerged: the individual exercise of rights has become possible and practical in a much broader and broadening field - through the application of technological protection measures (TPMs), electronic rights management information (RMI), and their combination in complex digital rights management systems (DRMs). This influences the scope of those exceptions and limitations of exclusive rights that3 may be justified and acceptable on the basis of the “three-step test” provided for in Article 9(2) of the Berne Convention, Article 13 of the TRIPS Agreement, Article 10 of the WCT and Article 16 of the WPPT. For example, distribution of copies through interactive transmissions supported by DRM – resulting in what is regarded now as “private copying” – is becoming a basic form of exploitation of works; therefore, in the cases where owners of rights apply DRMs, and in particular TPMs, it would not be in accordance with the requirements of the “three-step test” to reduce the exclusive right of reproduction, in general, to a mere right to remuneration.2 Since, as mentioned above, from the viewpoint of right owners, collective management – particularly when it involves fully fledged “collectivization” of the various management elements – goes along with quite extensive restrictions of exclusive rights, it will be fair to raise the question in which cases and under what conditions such restrictions may be justified and acceptable. This paper discusses this question in respect of two forms of non-voluntary collective management – mandatory collective management and extended collective management – on the basis of the international copyright norms and the “acquis communautaire” 3 of the European Union. II. Mandatory Collective Management Before analysing the Berne Convention, from the viewpoint of when and under what conditions mandatory collective management may be permitted (this analysis is relevant also for the TRIPS Agreement and for the WCT, which incorporate the substantive provisions of the Berne Convention by reference4), it is worth to answer to a few preliminary questions: (i) If somebody is in the position of doing something but it is provided that he can only do so in a certain way, does that represent determining/imposing a condition? (ii) If somebody owns something but it is provided that he can only use it in a certain manner, does that represent determining/imposing a condition? (iii) If somebody is granted a right but it is provided that he can only exercise it through a certain system, does that represent determining/imposing a condition? It is obvious that only definitely affirmative replies should be given to each of these questions. The Berne Convention contains provisions – Article 11bis(2) and Article 13(1) – which provide that it will be a matter for legislation in the countries of the Berne Union to determine the conditions under which certain exclusive rights may be exercised. They read as follows (emphasis added): – Article 11bis(2): “It shall be a matter for legislation in the countries of the Union to determine the conditions under which the rights mentioned in the preceding paragraph5 2 It is another matter, that, in some specific cases, such as copying of certain works, for example, in the framework of distant education program – with appropriate guarantees that only the intended beneficiaries may get access to the works – exceptions and limitations may be justified. 3 The entire body of European Union laws is known as the acquis communautaire. This includes all the treaties, regulations and directives passed by the European Union institutions as well as judgements laid down by the European Court of Justice. 4 See Article 9.1 of the TRIPS Agreement and Article 1(4) of the WCT. 5 Under paragraph (1) of the same Article, “[a]thors of literary and artistic works shall enjoy the exclusive right of authorizing: (i) the broadcasting of their works or the communication thereof to the public by any other4 may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral rights of the author, nor to his right to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.” – Article 13(1): “Each country of the Union may impose for itself reservations and conditions on the exclusive right granted to the author of a musical work and to the author of any words, the recording of which together with the musical work has already been authorized by the latter, to authorize the sound recording of that musical work, together with such words, if any; but all such reservations and conditions shall apply only in the countries which have imposed them and shall not, in any circumstances, be prejudicial to the rights of these authors to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.” In general, these provisions are regarded as a legal basis for the application of non- voluntary licenses, since they define the minimum requirements to be respected when such conditions are applied; namely that they must not, under any circumstances, be prejudicial to authors' rights to obtain an equitable remuneration. This does not mean, however, that non- voluntary licenses may be regarded as the only possible "conditions" mentioned in these provisions of the Berne Convention; other conditions as well – practically, restrictions – of the exercise of the exclusive rights concerned, may also be applied. Mandatory collective management of rights is such a condition, since it means – in term of the questions we asked above, that (i) although the owners of these rights are in the position of doing something (namely, enjoying the exclusive right of authorizing the acts in question), it is provided that they can only do so in a certain way; (ii) although they own such exclusive rights, it is provided that they can only use them in a certain manner; and (iii) although they are granted such rights, it is provided that they can only exercise their rights through a certain system (namely, collective management). Since the possibilities of “determining/imposing conditions” are provided for in the Convention in an exhaustive way, it can be deduced, on the basis of the a contrario principle, that in general, mandatory collective management of exclusive rights may only be prescribed practically in the same cases as non-voluntary licenses (which result in mere rights to remuneration). In the previous paragraph, the words “exclusive rights” are emphasized. This was necessary for pointing out that what was discussed above should not be interpreted to mean that mandatory collective management may only be prescribed in cases where, in the provisions of the Berne Convention or other international norms on copyright and related rights – the expression "determine/impose conditions" (under which the rights concerned may be exercised) is used. Mandatory collective management is obviously permissible also in cases (i) where a right is not provided for as an exclusive right of authorization but rather a mere right to remuneration (as in the case of the resale right under Article 14ter of the Convention, or, in the field of related rights, the so-called “Article 12 rights”6 of performers means of wireless diffusion of signs, sounds or images; (ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one; (iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.” 6 The expression “Article 12 rights” refers to the rights provided in Article 12 of the Rome Convention which reads as follows: “If a phonogram published for commercial purposes, or a reproduction of such phonogram, is5 and producers of phonograms); (ii) where the limitation of an exclusive right to a mere right to remuneration is allowed on the basis of some other wording (as is the case in respect of Article 9(2) concerning the right of reproduction7); or (iii) where a “residual right” is concerned, i.e. a right to remuneration (usually of authors and performers) which “survives” the transfer of certain exclusive rights (such a residual right “by definition” cannot be in conflict with the exclusive nature of the right concerned, since it is only applicable after the latter has been duly exercised.) The best example for a “residual right”, is the “unwaivable right to remuneration” under Article 4 of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (hereinafter: the Rental Right Directive8). And as long as we have mentioned them here, it will be justified to start the review of the acquis communautaire, as far as mandatory collective management is concerned, with the provisions on the “unwaivable right to remuneration”. First, paragraph 3 of the Article 4 of the Rental Right Directive provides that “[t]he administration of this right to obtain an equitable remuneration may be entrusted to collecting societies representing authors or performers”; then, paragraph 4 deals with the question of possible prescription of mandatory collective management. Its relevant part reads as follows: “Member States may regulate whether and to what extent administration by collecting societies of the right to obtain an equitable remuneration may be imposed […]”. This provision is significant from the viewpoint of the issue of mandatory collective management not only because it indicates that, in the case of this “residual right” collective management may be imposed (i.e. may be made mandatory), but also because it has an a contrario implication. Since the directive has found it necessary to provide that, in this case, collective management may be imposed, by this it indicates implicitly that, under the acquis communautaire - unless this possibility does not follow directly from the provisions of an international treaty to which the EU Member States are parties – there is a need for such a permission; or in other words: mandatory collective management is not allowed in any case where the international norms on copyright (such as the provisions of the Berne Convention, as discussed above) or, in respect of a specific right not covered by such norms (such as the right of rental), the acquis communautaire – do not explicitly permit it. used directly for broadcasting or for any communication to the public, a single equitable remuneration shall be paid by the user to the performers, or to the producers of the phonograms, or to both. Domestic law may, in the absence of agreement between these parties, lay down the conditions as to the sharing of this remuneration.” (Article 16.1(a) of the Convention provides for the possibility of reservations to Article 12, which may go even so far as to no application of the Article.) It is to be noted that Article 15 of the WPPT also provides for similar rights to remuneration for performers and producers of phonograms. 7 Article 9(2) uses the expression “to permit the reproduction of […] works”. This may mean – subject to the said test – either free uses or, as it is clarified in the report of Main Committee I of the 1967 Stockholm revision conference (see paragraph 85 of the report), the reduction of the exclusive right to remuneration to a mere right to equitable remuneration. It is on this basis, that, in case of widespread and uncontrollable private copying, in certain countries, a right to remuneration is applied (usually in the form of a levy on recording equipment and material) to which is, of course, the obligation to grant national treatment extends without any reasonable doubt whatsoever. 8 Paragraph 1 of Article 4 of the Rental Right Directive provides as follows: “Where an author or performer has transferred or assigned his rental right concerning a phonogram or an original or copy of a film to a phonogram or film producer, that author or performer shall retain the right to obtain an equitable remuneration for the rental.” And paragraph 2 of the same article adds that “[t]he right to obtain an equitable remuneration for rental cannot be waived by authors or performers."6 The Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (hereinafter the Satellite and Cable Directive) goes further: in the case of cable retransmission, not only it permits the imposition of collective management, but it makes such management mandatory. Article 9.1 of the directive provides as follows: “Member States shall ensure that the right of copyright owners and holders of related rights to grant or refuse authorization to a cable operator for a cable retransmission may be exercised only through a collecting society [emphasis added].” The directive also regulates the legal technique to be applied so that all such rights of copyright owners and holders of related rights may be concentrated in the repertoire of a collective management organization (or possibly in more than one organization, from which holders of rights may choose one9). This provision of the Satellite and Cable Directive is in accordance with the above-stated principle that in the case of exclusive rights, mandatory collective management may only be prescribed where the relevant international norms allow it, either through permitting for the prescription of conditions for the exercise of rights (the imposing of collective management being obviously a condition) or through limiting it to a right to remuneration in certain cases (in which cases, the exclusive nature of the rights concerned disappears not only in respect of the decisive “upstream” stage – that is, in the relationship between the owners of rights and the collective management organizations – but also in respect of the “downstream” stage between the organizations and the users). This is so since, in respect of authors’ “exclusive right of authorizing […] any communication to the public by wire […] of the broadcast of [their] works” granted by paragraph (1)(ii) of Article 11bis of the Berne Convention, paragraph (2) of the same Article provides that “[i]t shall be a matter for legislation in the countries of the [Berne] Union to determine the conditions under which the rights mentioned in [paragraph (1)] may be exercised”. As far as related rights are concerned, neither the Rome Convention, nor the acquis communautaire provide for exclusive rights of authorization for cable retransmission and this situation has not changed since the adoption of the Satellite and Cable Directive; it may be added that the international norms adopted in the meantime – the relevant provisions of the TRIPS Agreement and the WIPO Performances and Phonograms Treaty (WPPT) – have not introduced such rights neither. Article 10 of the Satellite and Cable Directive provides for one exception to mandatory collective management of cable retransmission rights, namely for the cable retransmission rights of broadcasting organizations.10 This refers to one of the basic principles concerning 9 Article 9.2 and 3 of the Satellite and Cable Directive provide as follows: “2. Where a rightholder has not transferred the management of his rights to a collecting society, the collecting society which manages rights of the same category shall be deemed to be mandated to manage his rights. Where more than one collecting society manages rights of that category, the rightholder shall be free to choose which of those collecting societies is deemed to be mandated to manage his rights. A rightholder referred to in this paragraph shall have the same rights and obligations resulting from the agreement between the cable operator an collecting society which is deemed to be mandated to manage his rights as the rightholders who have mandated that collecting society and he shall be able to claim those rights within a period to be fixed by the Member State concerned, which shall not be shorter than three years from the date of the cable retransmission which includes his work or other protected subject matter.” “3. A Member State may provide that, when a rightholder authorizes the initial transmission within its territory of a work or other protected subject matter, he shall be deemed to have agreed not to exercise his cable retransmission rights on an individual basis but to exercise them in accordance with the provisions of this Directive.” 10 Article 10 of the Satellite and Cable Directive provides as follows: “Member States shall ensure that Article 9 [prescribing mandatory collective management] does not apply to the rights exercised by a broadcasting7 collective management; namely that collective management, even when it might be possible under the international norms and/or the acquis communautaire, is only justified where the individual exercise of rights is impossible or, at least, highly impracticable due to the number of right-owners, the number of users or other circumstances of uses. Broadcasting organizations are relatively less numerous (in contrast to authors and owners of related rights other than the rights of broadcasting organizations); hence, they may be able to manage their rights individually.11 The Directive 2001/84/EC of the European Parliament and the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art (hereinafter: the Resale Right Directive) does not prescribe mandatory collective management for the collection and distribution of royalties for the resale right, but allows Member States to do so. Article 6.2 reads as follows: “Member States may provide for compulsory or optional collective management of the royalty provided for under Article 1.” As discussed above, in this case the prescription of mandatory collective management is allowed under the international copyright norms, since it corresponds to the nature of the resale right (droit de suite) under Article 14ter of the Berne Convention: it is a mere right to remuneration (it is also only a right to remuneration under Article 1 of the Resale Right Directive). It may be deduced, on the basis of the a contrario principle that, where the international copyright norms and/or the acquis communautaire provide for an exclusive right which can be exercised individually and the relevant norms do not allow for the prescription of conditions for its exercise (nor permit its limitation to a mere right to remuneration), it would be in conflict with those norms to subject the exercise of such a right to the condition that it may only be exercised through collective management. For example, no provision on mandatory collective management is allowed under the international copyright norms (and, consequently, under the acquis communautaire) in the case of the right of public performance (Article 11 of the Berne Convention), the right of public recitation (Article 11ter) or the right of “making available to the public” (Article 8 of the WCT and Articles 10 and 14 of the WPPT12). organization in respect of its own transmission, irrespective of whether the rights concerned are its own or have been transferred to it by other copyright owners and/or holders of related rights.” 11 It is another matter, that broadcasting organizations still have found collective management of their cable retransmission rights advantageous. They have established the Association for the International Collective Management of Audiovisual Works (AGICOA) of which one of the most important tasks is exactly the collective management of cable retransmission rights. 12 Articles 10 and 14 of the WPPT provide explicitly for “rights of making available” of fixed performances and phonograms, while, under Article 8 of the WCT, such a right is provided for as a “sub-right” of the right of communication to the public in the following way: “Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them” (the text relating to the right of “making available”, as a sub-right of the right of communication to the public, is emphasized). It is to be noted that the 1996 Diplomatic Conference which adopted the WCT, has also adopted an agreed statement concerning the above-quoted Article 8 which states as follows: “It is [ … ] understood that nothing in Article 8 precludes a Contracting Party from applying Article 11bis(2)” [of the Berne Convention]. Article 11bis(2) provides for the possibility of countries of the Berne Union “to determine the conditions under which the rights mentioned in the preceding paragraph may be exercised”. The rights mentioned in that “preceding paragraph” – paragraph 11bis(1) – are the right of broadcasting and the rights of retransmission and certain “public communications” of broadcast works; that is, sub-rights of the right of communication to the public clearly other than the right of making available to the public Thus, Article 11bis(2) obviously is not applicable in respect of the right of “making available”. It is another matter that recital (26) of the Information Society Directive contains8 This does not mean that owners of rights may not and do not create collective management systems where such management is not mandatory. On the contrary, the oldest and the most efficiently functioning collective management system, both at national level and at international level, through the International Confederation of Societies of Authors and Composers (CISAC), has been established specially for the management of the public performance right. In such cases, extended collective management systems may also be applied (see below). However, in the case of voluntary collective management, any right owner may decide whether to authorize the collective management organization to represent him and to exercise his rights. In the case of extended collective management there is also a possibility for any right owner, as discussed below, to “opt out” from the collective system. III. Extended Collective Management One of the most important elements of fully developed collective management systems is the possibility that collective management organizations may grant blanket licenses to users for the use of the entire world repertoire of works or other protected subject matter, as far as the rights managed by them are concerned. It is to be noted, however, that even where the system of bilateral reciprocal representation agreements is fairly well developed (e.g. as in the case of "performing rights"), the repertoire of works in respect of which a collective management organization has been explicitly given the power to manage exclusive rights is, practically, never the entire world repertoire (since, in certain countries, there are no appropriate partner organizations to conclude reciprocal representation agreements with, or because certain authors do not include their works in a collective system). There are two basic legal techniques for ensuring the functioning of the blanket licence systems. The first legal technique is the “guarantee-based system” which involves the following elements: (i) the lawfulness of authorizing the use of works not belonging to the organization's repertoire is recognized by law (either by statutory law or by case law); (ii) the organization must guarantee that individual right owners will not claim anything from users to whom blanket licenses have been granted and, if they still try to do so, that such claims will be settled by the organization, and, that any user will be indemnified for any prejudice and expense caused to him as a result of justified claims by individual owners of rights; and (iii) the organization also should guarantee that it treats owners of rights, who have not delegated their rights to it, in a reasonable way, taking into account the nature of the right involved. The other legal technique for ensuring the conditions for blanket licenses seems to be more appropriate in the case of exclusive rights, since it avoids the paradoxical situation of leaving the solution for the problem of those owners of rights who do not wish to participate in the collective system, to this very collective management organization in which they do not wish the following statement: “With regard to the making available in on-demand services by broadcasters of their radio or television productions incorporating music from commercial phonograms as an integral part thereof, collective licensing arrangements are to be encouraged in order to facilitate the clearance of the rights concerned.” This is another matter since encouraging collective management does not mean making it mandatory.9 to participate. This alternative legal technique is the so-called extended collective management system. The essence of such a system is that, if there is an organization which is authorized to manage certain rights by a large number of owners of rights and, if it is sufficiently representative in the given field, the effect of such collective management is extended by the law also to the rights of those owners of rights who have not entrusted the organization to manage their rights; however, with a possibility for the latter to “opt out” from the collective system. In an extended collective management system, there should be special provisions for the protection of the interests of those owners of rights who are not members of the organization and who do not wish to participate in the collective system. Those owners of rights should have the option of freely choosing between either claiming individual remuneration (as in the case of the application of the guarantee-based system) or “opting out” (that is, declaring that they do not want to be represented by the organization). In the latter case, they should take care of the exercise of their rights. Of course, in the case of “opting out” from the collective system, a reasonable period of time should be given to the organization so that it may exclude the respective works or objects of related rights from its repertoire, however the procedure of “opting out” should be simple and not burdensome (for example, a right owner should be able to “opt out” in a simple declaration concerning all his existing and future works, without being obliged to offer an exhaustive list. Without this, the “opting out” system might be transformed into a de facto formality). An extended collective management system seems to better correspond to the exclusive nature of rights and to the related requirements of the international copyright norms and/or the acquis communautaire than a simple “guarantee-based system”. This is duly and fully recognized also under the acquis communautaire. This is clearly reflected in the provisions of Articles 2 to 4 of the Satellite and Cable Directive. After that Article 2 provides that “Member States shall provide an exclusive right for the author to authorize the communication to the public by satellite of copyright works […]”, and Article 3.1 adds that “Member States shall ensure that the authorization referred to in Article 2 may be acquired only by agreement” (that is, it must not be subject to a non- voluntary license system), Article 3.2 outlines what is an extended collective management system. It reads as follows: “A Member State may provide that a collective agreement between a collecting society and a broadcasting organization concerning a given category of works may be extended to rightholders of the same category who are not represented by the collecting society, provided that: the communication to the public by satellite simulcasts a terrestrial broadcast by the same broadcaster, and the unrepresented rightholder shall, at any time, have the possibility of excluding the extension of the collective agreement to his works and of exercising his rights either individually or collectively.” This provision authorizes (the “may” language indicates this) Member States to introduce such an extended collective licensing system, which reflects the position that such an authorization is needed, and that, where it is not granted, in the fields expressly covered by the10 acquis, no extended collective management may be appropriate (not mentioning, of course, the mandatory collective management).13 This is confirmed by Article 3.3 and 4 which indicate that even the extended collective management may only be justified where it is truly indispensable, and where the right owners usually do not intend to – or could hardly – exercise their exclusive rights on an individual basis. Article 3.3 identifies a category of works where this is not the case, providing that “[p]aragraph 2 shall not apply to cinematographic works, including works created by a process analogous to cinematography”, while Article 3.4 underlines the exceptional nature of extended collective management by introducing a specific notification procedure.14 There is one more directive which refers to extended collective management: namely Directive 2001/29/EC of the European Parliament and the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (hereinafter: the Information Society Directive), which, in its recital (18), states as follows: “This Directive is without prejudice to the arrangements in the Member States concerning the management of rights such as extended collective licenses.” It seems obvious, however, that this may hardly be interpreted as an authorization for applying any kinds of arrangements – including extended collective management systems – in respect of any uses and any category of protected subject matter. The principles reflected in Article 3 of the Satellite and Cable Directive certainly must be duly taken into account. [End of paper] 13 For example, the right of public performance of authors is not covered by the acquis communautaire. In the case of that right, for example, extended collective management may be justified (but, since it is an exclusive right, mandatory collective management obviously is not permitted). 14 Article 3.4 provides as follows: “Where the law of a Member State provides for the extension of a collective agreement in accordance with the provisions of paragraph 2, that Member States shall inform the Commission which broadcasting organizations are entitled to avail themselves of that law. The Commission shall publish this information in the Official Journal of the European Communities (C series).”e.Copyright Bulletin December 2003 DOCTRINE AND OPINIONS Germany’s Copyright Law on the Verge of the Information Age Thomas Ramsauer* A) Background The history of copyright has always been a story of legal responses to technical progress. A new statute came into force in Germany on September 10, 2003 in order to address the effects of digital technologies on copyright and related rights legislation.1 Apart from bringing German law in line with the requirements of the two 1996 WIPO Treaties,2 the bill was also designed to implement the European Union Copyright Directive of May 22, 2001.3 With a nine months delay, Germany was the fifth country in the European Union to do so. As the Copyright Directive allowed to Member States only 19 months for implementation, the German government decided to first tackle only the mandatory obligations set up by the Directive.4 Given the massive lobbying by authors’ and producers’ associations, representatives of consumer interests and other groups, which had already accompanied the legislative efforts on the European scale, an exhaustive reform in due time was almost illusory.5 The completion of Germany’s entry into the information age is therefore left to a so- called “Second Basket” of copyright legislation. Preparations of the envisaged follow-up have already started and are supposed to be completed by the end of 2004.6 Notwithstanding its reduced content, the parliamentary enactment of the new law proved difficult. A first draft, presented by the German government in September 2002, raised objections in both chambers of the German Parliament and had to be revised several times * Lawyer (Ass. Jur.), Robert Bosch Young Professionals Programme on International Affairs 2003/2004, Berlin/Paris. 1 German Law on the Regulation of Copyright in the Information Society (Gesetz zur Regelung des Urheberrechts in der Informationsgesellschaft), Federal Law Gazette Part I, No. 46, September 12, 2003, pp. 1774-1788. 2 WIPO Copyright Treaty (WCT), Dec. 20, 1996, 36 I.L.M. 65, WIPO Publ. No. 226 (E); WIPO Performances and Phonograms Treaty (WPPT), Dec. 20, 1996, 36 I.L.M. 76, WIPO Publ. No. 227 (E). 3 Directive 2001/29/EC of the European Parliament and of the Council, May 22, 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, O. J. L 167, 22/06/2001, pp. 10-19. 4 Bill introduced by the Federal Government, November 6, 2002 (Bundestag Printed Paper 15/38), p. 14. 5 A thorough documentation of the public debate on national and European level can be found on the website of the Munich based Institut für Urheber- und Medienrecht, an association of German copyright lawyers, at http://www.urheberrecht.org/topic/Info-RiLi/. 6 After a kick-off conference hosted by the Institut für Urheber- und Medienrecht in Munich in September 2003, Brigitte Zypries, the German Minister of Justice assigned in October several expert working groups to present solutions to various problems left by the current law. As for the topics see infra part C).e.Copyright Bulletin December 2003 during the months to follow.7 It is worth noting that even after the final draft had eventually passed the Bundestag by a large cross-party majority of some 90% of the votes in April 2003, it was rejected by the Bundesrat, Germany’s powerful second chamber.8 A compromise proposal containing a final amendment was found in the mediation procedure between the two chambers in July 2003.9 However, the law could not be promulgated before the Federal President’s signature in September 2003. B) Amendments to copyright law The new law provides for a number of amendments, mainly to the German Copyright Act, but also to some other statutes, like the Copyright Administration Act or the Code of Criminal Procedure. Apart from some minor amendments concerning questions that have been subject to judicial proceedings over the past few years,10 and mere editorial adaptations,11 four changes have taken place: The introduction of a new “right of making available to the public” (I.), several amendments to exceptions and limitations to protection of copyright and related rights (II), the creation of a new regime concerning the protection of technological measures (III), and finally, the complete remodelling of the provisions dealing with performers’ rights (IV). I. Introduction of a right of making available to the public In accordance with Art. 3 of the European Copyright Directive, which in turn implements Article 8 of the WIPO Copyright Treaty as well as Article 10 and 14 of the WIPO Performances and Phonograms Treaty, a new right of making available to the public has been established. The newly-introduced Section 19a of the German Copyright Act grants to authors the exclusive right to authorise or prohibit any making available to the public of their works in such a way that members of the public may access them from a place and a time individually chosen by them. Corresponding amendments have been made to the provisions addressing the rights of performers (Section 78), phonogram producers (section 85), 7 Cf. in detail Bill introduced by the Federal Government, August 16, 2002 (Bundesrat Printed Paper 684/02); Bill introduced by the Federal Government, November 6, 2002 (Bundestag Printed Paper 15/38); Recommendation and Report of the Legal Affairs Committee, April 9, 2003 (Bundestag Printed Paper 15/837). 8 See Demand of the Bundesrat that the Mediation Committee be convened, May 3, 2003 (Bundestag Printed Paper 15/1066). 9 See Recommendation by the Mediation Committee, July 2, 2003 (Bundestag Printed Paper 15/1353). 10 The Copyright Act, e.g., contains now a novel Section 5 [3], which provides for copyright in technical standards that have been published by private authors and referred to in official norms; this differs from a ruling of Germany’s Federal Court of Justice in 1990, which stated that copyright did not subsist in such a case; April 26, 1990, Case No. I ZR 79/88. Moreover, the German Patent and Trademark Office’s powers to control the activities of collecting societies have been extended by a new provision in the German Copyright Administration Act (Section 19 [2]) to the effect that an unauthorised collecting society can be prohibited to carry on; this question was recently left open in a ruling of the Bavarian Administrative Court; August 13, 2002, Case No. 22 CS 02.1347. 11 For instance, the compulsory licensing for the production of audio recordings has been “transplanted” out of the chapter dealing with exceptions into another part without any material change. The basic reason for the transplant is that the Copyright Directive does not provide for compulsory licensing in its enumeration of possible limitations. The German legislature therefore chose to maintain the provision under a different heading. 2e.Copyright Bulletin December 2003 broadcasting organisations (Section 87), and producers of the first fixations of films (Section 94). The term “making available to the public” aims chiefly at posting protected content or files on the internet. It is worth noting that, even without express mentioning under the former law, the exclusive right of the author to authorise or prohibit these acts was undisputed in Germany. In effect, the amendments in question merely clarify their character as a form of communication to the public. More important is the fact that the new right is now expressly considered in the provisions concerning limitations and exceptions (Sections 44a, 46, 48, 50, 52a, 53 56, 58), thus delineating its scope of application.12 II. Amendments to limitations and exceptions By far the most extensive and heavily disputed amendments were made to the provisions of Sections 44a et seq. of the German Copyright Act concerning exceptions and limitations to the copyright and related rights. Apart from some merely technical adaptations, a number of considerable modifications have taken place. Apart from the mandatory exception of Article 5 [1]concerning temporary acts of reproduction, the Copyright Directive 2001/29/EC provides for an exhaustive enumeration of optional limitations on copyright and related rights in Article 5 [2] and [3]. As the legislature felt that the German copyright had mostly been in line with the European prerequisites, it decided “to make only sparing use” of those provisions.13 1. Temporary acts of reproduction The newly introduced Section 44a transposes almost literally the mandatory exception for the benefit of temporary acts of reproduction provided for by Article 5 [1] of the European Copyright Directive into German law. According to this provision, temporary acts of reproduction, which are transient or incidental and are an integral and essential part of a technological process and whose sole purpose is to enable a transmission in a network between third parties by an intermediary, or a lawful use of a work or other subject-matter to be made, and which have no independent economic significance, are exempted from the reproduction right. In accordance with Recital 33 of the Directive this exception includes, more particularly, acts of browsing or caching. In view of the obligations set by European law, the introduction of Article 44a has not attracted much attention and is mainly seen as a fair compromise. 2. Reproductions for the benefit of persons with disabilities Based on Article 5 [3] (b) of the European Copyright Directive, the newly introduced Article 45a is the first provision of the German Copyright Act to be specifically designed for the needs of persons with disabilities. It thus honours Article 3 [3] of the German Constitution (“Grundgesetz”, “Basic Law”), which states that no person shall be disfavoured on the basis of disability. Section 45a [1] permits the reproduction of protected subject matter, such as the recording of works of literature for the benefit of blind persons, to the extent required by the 12 Under the German doctrine of Copyright Law, the author generally has an exclusive right to allow or forbid any possible use of his work. The typical question is therefore rather whether and to what an extent this right is limited in regard to a specific use. See in general Schack, Urheber- und Urhebervertragsrecht (2nd ed. 2001), p. 175 et seq; in respect of the right of making available to the public, idem, p. 195 et seq. 13 See Bill introduced by the Federal Government, November 6, 2002 (Bundestag Printed Paper 15/38), p. 15. 3e.Copyright Bulletin December 2003 specific disability. As far as reproduction exceeds a small number of copies, paragraph [2] entitles rightholders to an appropriate compensation which claim is to be exercised by a collecting society. 3. Making available for educational and research purposes The likewise new Section 52a deals with a specific limitation to the right of making available to the public. Section 52a [1] allows the making available of protected subject matter, which has been published, to certain distinct circles of persons if and to the extent where this is necessary for certain teaching or research purposes. Examples include the use in on-line classes or access-controlled parts of a university’s intranet. With this provision, the German legislature has made use of Article 5 [3](a) of the Copyright Directive which entitles Member States to create exemptions for the benefit of educational or scientific uses. Paragraph 4 of Section 52a compensates rightholders with an appropriate remuneration which is to be claimed by a collecting society. The new exception on the right of making available is subject to various restrictions, due to lobbying by publishing companies and film producers. So has the extent to which protected materials can be made available been delimited to “small parts of a work”, “works of small size” and “single contributions from newspapers and periodicals”. Moreover, the number of beneficiaries has been confined to those institutions that are expressly mentioned. Finally, Section 52 a [2] exempts expressly school books and – for a limited period of two years after their theatrical release – films. Yet, the criticisms have not completely vanished. Some would have preferred a more narrowly defined extent. Others find that the current restrictions do not go far enough. Publishers of scientific works, for instance, specifically point at the in arbitrary preferential treatment of school books.14 Confronted with apparently irreconcilable expectations from different sectors of society, the legislature decided to earmark Section 52a with an expiry date of late 2006 ( Section 137k). 4. Reproductions for private and other personal uses (Section 53) Section 53 of the German Copyright Act sets the conditions for what is permissible under German copyright law, regarding the reproduction for private and other personal uses. Digital copies Section 53(1) now contains a formula (reproduction on any medium), which makes clear that this provision applies in principle equally to digital and analogue reproductions. The European Copyright Directive allows for such an equal treatment in Article 5(2) (b). However, as Recital 38 of the Directive states, digital private copying is likely to be more widespread and therefore calls for making a distinction between digital and analogue private copying in certain respects. Different opinions existed between the two chambers of Parliament as to how to meet this prerequisite. This has led to a last minute insertion of an additional restriction on private copying.15 By now, reproductions are prohibited if the source 14 Cf. Schippan, Urheberrecht goes digital, 5 ZUM 2003, pp. 378-382. 15 Cf. references at footnote 9. 4e.Copyright Bulletin December 2003 is “obviously unlawful”. The clause is mainly intended to prevent downloads from the so- called “peer-to-peer” platforms.16 Yet, some commentators have already highlighted a snag: as the wording draws explicitly on the way the source was produced („offensichtlich rechtswidrig hergestellte Vorlage“), it could be argued that a legally produced copy, which is later merely posted on an illegal platform, does not match this provision.17 Sooner or later, the tribunals will have to provide clarification. In any case, the requirement for an “obviously unlawful source” somewhat reduces the consumer’s risk of unknowingly committing a breach of law. It is therefore up to the rightholders to raise public awareness against questionable sources. Copies to be made by another person Despite considerable pressure by publishers’ organisations, the legislature chose to maintain an already-existing provision in Section 53(1), which allows private copies to be made by another person. Today, on-line delivery of digital copies is a heavily contested field of use for this provision. Under the amended Section 53(1) such a service would be permissible, provided no payment is received.18 Critics object that, according to the explanatory note of the German parliament, this condition will be met even when institutions, such as public libraries, collect fees, as long as those fees do not exceed their necessary costs. They claim, more specifically, that this does not properly take into account Recital 40 of the European Copyright Directive, which states that any exception or limitation for the benefit of certain non-profit making establishments should not cover uses made in the context of on-line delivery of protected subject matter.19 The topic is currently revisited in the discussions preparing the “Second Basket”. Further amendments Further amendments have been made to Section 53(2), which permits, inter alia, the production of source copies for keeping in a private archive [no. 2]. Here, the legislature was thinking of cases in which an institution rather than individuals, e.g. a private foundation, would store its inventory on microfilm in order to either save space or to keep the films in a place safe from catastrophe.20 In accordance with the conditions set up in Article 5 [3] (a),(c),(o) of the Copyright Directive, the intent of the amendments is not to make a more intensive exploitation of the work possible. Therefore, a differentiation between analogue and digital copies can be found in paragraph [2] for the numbers 2, 3, 4, and paragraph [5], which now contains limitations to the assistance of database facilities. This, however, adds considerably to the quite confusing appearance of paragraph (2) et seq. of Section 53. 16 Cf. Demand of the Bundesrat that the Mediation Committee be convened, May 3, 2003 (Bundestag Printed Paper 15/1066), p. 2. 17 Cf. Lüft, in Wandtke/Bullinger, Ergänzungsband zum Praxiskommentar Urheberrecht (2003), § 53, para. 13. 18 However, according to a ruling of the German Federal Court of Justice of 1999, any delivery of copies sets off a claim to appropriate remuneration for the author which is to be exercised by a collecting society; February 25, 1999; Case-No. I ZR 118/96. 19 Cf. the comments by the German Publishers Association (Börsenverein des Deutschen Buchhandels) at http://www.urheberrecht.org/topic/Info-RiLi/, and Schippan, op. cit., at 384. 20 Cf. Bill introduced by the Federal Government, November 6, 2002 (Bundestag Printed Paper 15/38), p. 21. 5e.Copyright Bulletin December 2003 III. Technological protection measures In compliance with the obligations of the European Copyright Directive, the legislature created a regime of legal protection ( Sections 95a – 95d) and remedies ( Sections 108b and 111a), which prohibits the circumvention of mechanisms designed to protect works and other subject matter against unauthorised copies.21 The new provisions simultaneously implement Articles 11 and 12 of the WIPO Copyright Treaty, as well as Articles 18 and 19 of the WIPO Performances and Phonograms Treaty. 1. Defences and sanctions ( Sections 95a, 95c, 108b and 111a) Section 95a transposes Article 6(1) to (3) of the Copyright Directive almost literally into German law. Section 95a (1) states that effective technological protection measures may not be circumvented. Section 95a (2) defines technological protection measures as “any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts in respect of works, which are not authorised by the rightholder.” Paragraph [3] provides legal protection against devices or services as listed in Article 6 [2] of the Directive that are primarily designed for enabling or facilitating the circumvention of any of those measures. None of these provisions, however, affect the powers of public authorities as far as public security is concerned, paragraph (4). In compliance with the provisions of Article 6 of the Copyright Directive, these provisions are backed up with criminal law and administrative law („Ordnungswidrigkeit“) sanctions which are laid down in Sections 108b and 111a. The statute clarifies, however, that a contravention committed solely for personal use falls outside of the criminal area. Yet, such a copy would still expose the offender to a claim for damages under the civil law regime of Section 97. In addition, Section 95c provides, in perfect accordance with Article 7 of the Copyright Directive, legal protection to the so-called “rights management information”. This includes any type of data associated with a copy or communication to the public that identifies the protected subject matter, the rightholder or the terms and conditions of access, as laid down in Article 7(2) of the European Directive. Section 95c does not figure among the offences defined in Article 108 et seq., which means that infringements against the ban on removing copyright information can only be pursued under private law. 2. Consumer protection (Sections 95b and 95d) According to Section 95b (1) no. 2, a rightholder who applies technical protection measures has to provide the beneficiaries under a number of certain exceptions with the necessary means, so that the beneficiary may use the work as provided in the relevant provision. This clause implements Article 6(4), subparagraph 1 of the Copyright Directive. The Copyright Act does not contain any specifications as to how the rightholder who uses technical protection measures must comply with the obligation under Section 95(1). Notably, the rightholder is not obliged to communicate the password to a beneficiary, provided it is ensured in another form that the beneficiary benefits from the exception. 21 In line with Recital 50 of the Copyright Directive, computer programmes do not fall under this regime. The protection of computer programmes is left to the European Council Directive 91/250/EEC, May 14, 1991 on the legal protection of computer programs, O. J. L 122 , 17/05/91 p. 42. The Bundesrat could not get through with his opposite proposal; cf. Demand of the Bundesrat that the Mediation Committee be convened, May 3, 2003 (Bundestag Printed Paper 15/1066), p. 2. 6e.Copyright Bulletin December 2003 A rightholder who does not comply with this obligation can be sued under Section 95(2) and risks punishment under Section 111a (1) no. 2. Moreover, an infringement can be pursued by collective action according to the new Article 2a of the relevant German law concerning collective actions for injunctions („Unterlassungsklagen-Gesetz“). However, Section 95(2) of the Copyright Act also assumes that a means which has been designated in a collective agreement between rightholders’ associations and beneficiaries meets the obligation under Paragraph (1). This assumption is designed for the promotion of mutually-agreed technological standards between the concerned interest groups. Additionally, Section 95d (1) requires that works and other items that are protected by technological protection measures, must be clearly labelled, stating the characteristics of the technological measures.22 Moreover, Section 95d [2] provides that such subject matter must be labelled with the name or business name of the person who applied the measures, as well as an address for service to enable claims to be asserted in accordance with Section 95b (2). In sum, Section 95b in connection with 95d is one of the most heavily contested provisions among the latest amendments. Rightholders, on the one hand complain that their right to use technological protection measures is being obliterated by those obligations.23 On the other hand, the beneficiaries of those exceptions that have not been considered in the catalogue of Section 95b (1) claim for equal treatment.24 This applies in particular to the exception for the benefit of reproductions for private uses (Section 53(1)); under the current law, this right cannot be enforced against technological protection measures. Small wonder, therefore, that the question of legal enforcement of exceptions has been set quite high on the agenda of the meetings preceding the upcoming “Second Basket”.25 IV. Amendments to Performers’ Rights Sections 73 et seq. of the Copyright Act, which govern performers’ rights, have been completely remodelled. These amendments are due to the implementation of the obligations set up in Articles 5 et seq. of the WIPO Performances and Phonograms Treaty. Apart from a broadened scope of applicability, which from now on also covers the performance of so- called expressions of folklore (Section 73), the amendments concern mainly performers’ moral and economic rights. The structure of the authors’ rights as laid down in Sections 11 et seq. has been visibly used as a model. In contrast to the provisions discussed above, the amendments concerning performers’ rights have not received much public attention. 1. Moral Rights ( Sections 74-76) In accordance with Article 5 of the WIPO Performances and Phonograms Treaty, performers’ moral rights have been strengthened. Under the former law, they were only considered in a 22 According to section 137j of the Copyright Act, this provision does not apply to subject matter published before December 1, 2003. 23 Cf. various comments of rightholder’s associations at http://www.urheberrecht.org/topic/Info-RiLi/, and Schippan, op. cit., at 386. 24 Cf. the website of the leading private initiative committed to the maintenance of the existing exception for the benefit of private uses “Rettet die Privatkopie” at http://privatkopie.net. 25 So far, Sections 95b (2) and 95d (2) have not entered into force. The Transposition Law (Article 6) has stated a delay for a period of 12 months which will be due on September 10, 2004. By then, the talks at the German Ministry of Justice are supposed have come to an end. 7e.Copyright Bulletin December 2003 fragmented way. In its amended form, the newly introduced moral rights are provided for before the economic rights, thus underlining the greater commitment of the German legislature.26 Section 74(1) provides for a right to be identified as the performer of a performance and for the right to choose the name under which this is to happen. If a group of performers is concerned, this right will belong to the group as such, to the extent that the mention of individual members would be too burdensome and this would not unreasonably prejudice the legitimate interests of the relevant rightholders. The right of integrity, already known under the former law, is now covered by Section 75. Section 76 sets up a term of protection until at least the end of a period of 50 years after the performance and up to the performers lifetime. In addition, performers‘ moral rights are maintained at least until the expiry of the economic rights ( Section 82), as stated by Article 5 [2] of the WIPO Performances and Phonograms Treaty. 2. Economic Rights ( Sections 77-80) Whereas under the former law, performers were granted merely so-called “rights of consent” („Einwilligungsrechte“), the novel Sections 77-80 provide for veritable “rights of exploitation” („Verwertungsrechte“). In practice, this will not lead to a remarkable change. The legislature has thus made clear that performers can assign those rights to third parties without any restrictions (Section 79).27 Section 77 contains the rights of fixation, reproduction and distribution, as set out in Articles 10 to 12 of the WIPO Performances and Phonograms Treaty. The rights of communication to the public in an immaterial form are treated in Section 78. In addition to broadcasting and others act already considered by the former law, this provision also covers the making available to the public of a performance as defined in the novel Section 19a. Finally, Section 80, in its new form, contains a general rule for the case that the contributions of several joint performers cannot be separately exploited; under the former law, only choral, orchestral and stage performances were expressly considered. According to Section 80(1), similarly to the case of joint authorship (Section 8), the right of exploitation shall belong jointly to all performers involved. However, a joint performer may not unreasonably refuse his consent. Moreover, if a group has an elected representative, the consent of all performers in that group shall be replaced by the consent of that person (Paragraph (2). C) Conclusions As the forgoing outline has made it clear, not all problems, created by the information age, have been solved by the latest amendments of the German copyright law. Besides, the previously mentioned differences of opinion with regard to current exceptions and the new 26 Cf. Büscher in Wandtke/Bullinger, Ergänzungsband zum Praxiskommentar Urheberrecht (2003), vor §§ 73, para. 4. 27 Cf. Büscher in Wandtke/Bullinger, Ergänzungsband zum Praxiskommentar Urheberrecht (2003), vor §§ 73, para. 8. 8e.Copyright Bulletin December 2003 provisions in favour of technological protection measures,28 the German Government has identified a whole range of “digital” issues that it plans to deal with in the “Second Basket”. One of the main topics will be the future of Germany’s elaborate system of collective remuneration, established in 1965 and last revised in 1985. Special attention will be paid to the question whether and to what extent so-called “Digital Rights Management” (DRM) systems will allow levies on recording mediums and appliances to be replaced by a mechanism of individual licenses. Other points of interests are, for instance, the tracing of copyright infringements in the internet, on-the-spot-consultations in libraries, and the assignability of rights to unforeseen uses.29 When tackling these questions, the German legislature will have to carefully balance the competing interests between rightholders and society, unless Aldous Huxley’s gloomy aphorism is to come true: “Technological progress has merely provided us with more efficient means for going backwards.” 28 Cf. supra parts B) II. 4 and B) III. 2. 29 Cf. the German Ministry of Justice’s press-release, September 16, 2003 at http://www.bmj.bund.de/ger/service/pressemitteilungen/10000790/. 9Copyright Bulletin October 2003 UNESCO ACTIVITIES NEW STANDARD-SETTING INSTRUMENTS ADOPTED BY THE GENERAL CONFERENCE OF UNESCO Five standard-setting instruments, including the International Convention on the Preservation of Intangible Cultural Heritage, were adopted by the 32nd session of UNESCO’s General Conference which took place at UNESCO Headquarters from September 29 to October 17, 2003. The General Conference, UNESCO’s supreme governing body, brings together, every two years, representatives of all the Organization’s Member States, which – since the return of the United States of America and the accession to membership of Timor-Leste – number 190. At the beginning of the general policy debate, the Director-General of UNESCO, Mr Koichiro Matsuura stressed that the process of globalization underway increases the pertinence of UNESCO’s standard-setting role. On the subject of heritage, the General Conference adopted by an overwhelming majority the International Convention on the Preservation of Intangible Cultural Heritage*. A complement to the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage, which concerns monuments and natural sites, the new Convention addresses oral traditions and expressions, including languages as vehicles of cultural heritage; the performing arts; social practices, rituals and festive events; knowledge and practices concerning nature and the universe; and traditional craftsmanship. The preservation of this particularly vulnerable heritage is provided for by the Convention through the drawing up of national inventories of cultural property to be safeguarded, the establishment of an Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, composed of experts from future States Parties to the Convention, and the creation of two lists: a Representative List of the Intangible Heritage of Humanity and a List of Intangible Cultural Heritage in Need of Urgent Safeguarding. The text stresses that safeguarding intangible cultural heritage is a complex process involving many parties, starting with the communities and groups that bring it to life. The General Conference adopted a Declaration Concerning the *. According to this text, which recalls “the tragic destruction of the Buddhas of Bamiyan” and expresses “serious concern about the growing number of acts of intentional destruction of cultural heritage”, States should “take all appropriate measures to prevent, avoid, stop and suppress acts of intentional destruction of cultural heritage, wherever such heritage is located.” Although it is not legally binding, the Declaration should inspire the actions of States. Intentional Destruction of Cultural Heritage 1Copyright Bulletin October 2003 On the subject of bioethics, the General Conference adopted an International Declaration on Human Genetic Data*, which lays down the ethical principles that should govern their collection, processing, storage and use. The purpose of the Declaration is to ensure the respect of human dignity and the protection of human rights and fundamental freedoms, in keeping with the requirements of equality, justice and solidarity, while giving due consideration to freedom of thought and expression, including freedom of research. It undertakes to define the principles that should guide States in formulating their legislation and their policies on these issues. Two standard-setting instruments were adopted in the field of communication and information. *, concerns four important aspects: development and promotion of multilingual content and systems; access to networks and service; development of public domain content; and reaffirming and promoting the fair balance between the interests of right owners and the public interest. These measures aim to provide more equitable access to information and favour the development of multicultural knowledge societies. The Recommendation on the Promotion and Use of Multilingualism and Universal Access to Cyberspace The Charter on the Preservation of the Digital Heritage is a declaration of principle designed to assist Member States in preparing national policies to preserve, and provide access to, digital heritage. The digital heritage consists of unique resources of human knowledge and expression, be they cultural, educational, scientific or administrative, as well as technical, legal, medical and other kinds of information created digitally or converted into digital form from existing analogue resources. This fast growing heritage is particularly at risk because of the rapid obsolescence of the hardware and software with which it is generated and preserved. The Charter recognizes that this material constitutes a common heritage and that its preservation requires urgent measures. The General Conference also laid the ground for new standard-setting projects requesting that new instruments be prepared on the subjects of cultural diversity and the fight against doping in sport and bioethics. Draft texts could be presented to the 33rd session, in 2005. The General Conference thus requested that UNESCO prepare an . Already in 2001, it adopted the UNESCO Declaration on Cultural Diversity which recognized cultural diversity as a “common heritage of humanity” and considered its safeguarding to be a concrete and ethical imperative, inseparable from respect of human dignity. At the end of a long debate on the subject, delegates agreed that “cultural diversity, as regards the protection of the diversity of cultural contents and artistic expressions shall be the subject of an international convention.” Consultations should be undertaken on the subject with the World Trade Organization (WTO), the United Nations Conference on Trade and Development (UNCTAD) and the World Intellectual Property Organization (WIPO). The resolution invites the Director-General to submit a first draft convention on the protection of the diversity of cultural content and artistic expression to the next session of the General Conference. international standard-setting instrument on cultural diversity The General Conference also examined the desirability of elaborating a that would be more comprehensive than the and the one just universal instrument on bioethics Universal Declaration on the Human Genome and Human Rights adopted by UNESCO in 1997 2Copyright Bulletin October 2003 adopted on human genetic data in 2003. Member States approved the project for such an instrument despite their awareness of the ethical dilemmas involved, as bioethics cover a wide range of areas and problems, such as those connected to embryology, which are set in the various cultural, philosophical and religious bedrocks of human communities. A draft instrument should be submitted in 2005. www.unesco.org/confgen* texts available on the website of the General Conference: and of the UNESCO Intangible Heritage website. Source : Press Release No.2003-83. 3Copyright Bulletin June 2003 SELECTED WORKS Patent, Trademark, and Copyright Laws (2003 Edition). Edited by Jeffrey M. Samuels. Washington, D.C., BNA Books, A Division of The Bureau of National Affairs, Inc. (BNA), March 2003, 812 pp. All key legislative developments through February 10, 2003 that affect U.S. intellectual property law are covered in the new 2003 Edition. In addition, this Edition covers important updates such as amendments to the Trademark (Lanham) Act implementing the provisions of the Madrid Protocol, an international treaty that facilitates obtaining trademark protection abroad; significant amendments to the Copyright Act relating to distance learning and Web broadcasting; amendments to the Patent Act relating to reexamination and the prior art effect of published applications; and provisions of the Patent and Trademark Office Authorization Act of 2002. First published in 1985, Patent, Trademark, and Copyright Laws features a finding list by topic; a finding list by U.S.C. Section; relevant constitutional provisions; the popular names of selected statutes; U.S. Code, Title 35, Patents; U.S. Code, Title 15, Chapter 22, Trademarks; U.S. Code, Title 15, Chapter 63, Technology Innovation; U.S. Code, Title 17, Copyrights; other relevant statutes; and a comprehensive index. Softcover/ISBN 1-57018-378-3/Order #1378-PRY3/$115.00 plus tax, shipping, and handling. May be purchased from BNA Books, P.O. Box 7814, Edison, NJ 08818-7814. Telephone orders: 1-800-960-1220. Fax orders: 1-732-346-1624. E-mail address: [email protected]. World Wide Web: www.bnabooks.com.

About  Search

Joseph R. Biden

Proclamation 10647—german-american day, 2023.

By the President of the United States of America A Proclamation

On German-American Day, we honor the over 40 million Americans who claim German heritage and the countless ways they have strengthened the diverse fabric of our Nation.

They have since the beginning. In 1683, 13 German families fled religious persecution at home and founded the first German settlement just outside of Philadelphia. Ever since, the story of German Americans has been inextricable from the story of America: German Americans fought for our freedom in the Revolutionary War, debates over the deliberations of the Continental Congress happened in German coffeehouses, a local German newspaper was the first to break the news that the Declaration of Independence had been signed, and so much more.

Today, German Americans continue to enrich our Nation's character and culture as leaders in every sector and community. They also form the cornerstone of our Nation's strong bonds with Germany and its people. As capable allies and close friends, the partnership between Germany and the United States is essential to our joint efforts to address global challenges—from tackling climate change and food insecurity to defending human rights and democracy. And together, we will continue to stand up for the values that unite us—freedom, liberty, and sovereignty—including standing with the brave people of Ukraine as they defend themselves against Russia's brutal aggression.

On this day—340 years after the first German settlement was founded on American shores—let us celebrate the incredible legacy of generations of German Americans and the unbreakable bonds of friendship between our two countries.

Now, Therefore, I, Joseph R. Biden Jr. , President of the United States of America, do hereby proclaim October 6, 2023, as German-American Day. I urge all Americans to celebrate the rich and varied history of German Americans and remember the many contributions they have made to our Nation.

In Witness Whereof , I have hereunto set my hand this sixth day of October, in the year of our Lord two thousand twenty-three, and of the Independence of the United States of America the two hundred and forty-eighth.

NOTE: This proclamation was published in the Federal Register on October 12, 2023.

Joseph R. Biden, Proclamation 10647—German-American Day, 2023 Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/367094

Filed Under

Simple search of our archives, report a typo.