Sources of copyright

Describing copyright law is no easy task. It can best be characterised as the set of legal norms governing the relations between intellectual creators and their intellectual, non-material creations. Article 27 (2) of the Universal Declaration of Human Rights of 10 December 1948 states that“[e]veryone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” The Basic Law (GG) of the Federal Republic of Germany has enshrined this principle in the right to free development of the personality (Article 2 GG), the right to freedom of expression in the arts and sciences (Article 5 (3) GG), and the guarantee of property (Article 14 GG).

For the territory of the Federal Republic of Germany, these quite abstract legal constructions are given concrete form in ordinary law through the Act on Copyright and Related Rights (UrhG) and the Act on the Management of Copyright and Related Rights (UrhWahrnG). Matters with a trans-border element are covered by the international treaties to which the Federal Republic has acceded. These treaties include the Berne Convention for the Protection of Literary and Artistic Works, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the World Intellectual Property Organization Copyright Treaty (WCT). Moreover, there are a number of international treaties that cover neighbouring rights – that is rights neighbouring, or related, to copyright.

Object of copyright law

As can be seen from the sources, the main focus of copyright law is “the author”. Copyright law governs authors’ relations to their literary, scientific, scholarly, or artistic works. The concept of “the work” is central to copyright law. Protection is not extended to the results of creative endeavours that are not deemed to constitute “works” or are not created by human beings. However, under Section 2 (2) of the German Copyright Act (§ 2 (2) UrhG), all personal intellectual creations are protected. Also in the case of computer programmes, databases, and photographic works, reference is made to “the author’s own intellectual creations”without deviating from the uniform concept of “a work”.

The decisive factor for obtaining copyright protection is that the work must be the result of a process of human creation that constitutes a personal creation in a perceptible form and that has intellectual content and a personalised character. Pursuant to Section 2 (1) of the German Copyright Act (§ 2 (1) UrhG), protected works include, for example, texts, speeches, computer programmes, musical works, paintings, sculptures, buildings, photographic works, cinematographic works, and technical drawings and plans. A “work”within the meaning of copyright law must be distinguished from a “workpiece”, or material object. The latter can be commercially traded and is not governed by copyright law but rather by the law of property.

Copyright protection arises the moment that an object fulfilling the aforementioned prerequisites of protection is created. In other words, it is not conditional upon the work being registered. If several persons make an independent creative contribution to the creation of a work without it being possible to separately exploit their individual contributions, they are deemed to be joint authors of the work (§ 8 (1) UrhG). This means that they all enjoy protection under the provisions of the Copyright Act. However, it also means that they may only jointly avail of the rights resulting therefrom and that, unless otherwise agreed, they may obtain their share of the proceeds derived from the exploitation of the work only according to the extent of their contribution to the creation of the work (§ 8 (2) and (3) UrhG).

Legal relationship between authors and their works

The legal relations between authors and their works can be divided into two groups: on the one hand, moral rights, which are inalienable in principle, and on the other hand, the rights to commercially exploit the work.

COPYRIGHT
MORAL RIGHTSEXPLOITATION RIGHTS
§ 12 UrhG: Right of publicationa) Material exploitation:
§ 13 UrhG: Recognition of authorship§ 16 UrhG: Right of reproduction
§ 14 UrhG: Distortion of the work§ 17 UrhG: Right of distribution
§ 18 UrhG: Right of exhibition
b) Non-material exploitation:
§ 19 UrhG: Right of recitation, performance, and presentation
§ 19a UrhG: Right of making works available to the public
§ 20 UrhG: Right of broadcasting
§ 21 UrhG: Right of communication by video or audio recordings
§ 22 UrhG: Right of communication of broadcasts and of works made available to the public

Moral rights

Figuratively speaking, moral rights are the inseverable umbilical cord by means of which authors remain permanently attached to their works. First and foremost, moral rights grant authors the power to decide whether their creations should be published at all. When the works are published, authors may determine whether they should bear their name or a pseudonym. And, finally, authors may always defend themselves against distortions of their works. Even though these rights are formulated in the Copyright Act as inalienable rights, in practice one sometimes encounters deviating agreements. Hence, in advertising and also, and in particular, in science and scholarship, recognition of authorship is frequently waived in favour of a third party. 

Exploitation rights

Above all, exploitation rights ensure that authors have the power to grant third parties the right to use their intellectual property against payment of a fee or free of charge – see the so-called “Linux clause”in the first sentence of Section 31 (1) of the German Copyright Act (§ 31a (1), sentence 1 UrhG). These rights of use may be limited in terms of space, time, or content, or they may be so comprehensive that, in economic terms, the rightsholder may move into the author’s position with regard to the individual rights granted. The latter case is referred to as the granting of exclusive rights of use. They entitle the rightsholder to exclude third parties from using the powers that have been granted exclusively to him, in a way that otherwise only the author him- or herself could. If, on the other hand, the rights are limited in terms of space, time, or content, this is referred to as the granting of non-exclusive rights of use, which means that the author retains the power to further allow third parties other than the person who first acquired rights of use to use his or her intellectual property.

Legal relationship between author and user

Statutory limitations on the author’s power of disposal

In the light of the above, authors are entitled in principle to exclude others from using their intellectual property. However, with a view to the social responsibility of ownership, the German legislator has limited this exclusivity in such a way that, in the public interest, it permits by law the use of property belonging to another person in exceptional circumstances. Within the limits of the Copyright Act (§§ 44a ff. UrhG), the user is thereby granted rights to use the results of the creative endeavours of others, which rights are not subject to the power of disposal of the author.

The limits of the Copyright Act relate, for example, to the fact that natural persons have the right to make copies of the work for private use provided these copies do not directly or indirectly serve a profit-making purpose. Moreover, making copies may be justified in individual cases if they are for the person’s own scientific or scholarly use or for use in teaching or in state examinations at schools or universities, in which case the consent of the author would not have to be granted. There are also a number of other limitations on the power of disposal of the author in favour of libraries, archives, museums, and other third parties that are involved in the process of providing basic and further education to the population.

However, authors do not have to accept without compensation the limitations on copyright imposed by the legislator. Via the levies on hardware and blank data media that collecting societies such as GEMA and VG WORT charge manufacturers and importers and distribute to authors, authors receive what the European Court of Justice describes as “fair compensation”for the fact that the legislator permits copying by private users. However, in order to receive this compensation an author must be a member of the collecting society, or must at least register the work with the collecting society, as is the case with VG WORT, for example.

Licensing rights

Apart from the aforementioned limitations on copyright, authors may freely regulate their legal relations with third parties in respect of the works they have created. That means that they are in a position to negotiate with a contractual partner of their choice a contract on the permission of the use of their intellectual property on terms to be determined by themselves, and that they are largely free to determine the content of the contract. In practice, of course, it may sometimes happen that an economically stronger user imposes his terms on the author. However, the author may also grant a free licence that allows users to reuse the work free of charge in a manner that suits the author. Standardised licence models such as the GNU General Public Licence and the Creative Commons licences are often availed of for this purpose.

Special case: authors in employment or service

With regard to licensing – that is, the shaping of the legal relationship between the author and the user of a work – a special case arises when works entitled to copyright protection are created within the framework of an employment or service relationship. In this case, too, copyright remains with the author as it is an inalienable right. However, in the case of works that arise within the framework of an employment or service relationship, employers or principals acquire the right to use these works to the extent necessary for operational purposes (§ 43 UrhG). This right is acquired upon delivery of the work at the latest – the author may be obliged under the terms of the work contract to deliver it. Deviations from this legal provision may be agreed in the work contract.

University teachers and scientific personnel who are not bound by instruction in their research work are exempt in principle from the aforementioned legal provision. Nor are they obliged to offer to the institution that employs them a work that results from research that is not bound by instruction. However, if the research activity is conducted on the basis of concrete instructions, university teachers and scientific personnel are subject to the provision described above.

Secondary publication rights of authors of scientific and scholarly contributions

A further special provision that privileges the authors of scholarly and scientific contributions has applied since the 1 January 2014. If the author has written a scientific or scholarly contribution within the framework of a research activity, 50% of which is, or has been, financed with public funds that are not basic funds of a public research institution or a university, and if this contribution has been published in a periodical collection that is published at least twice a year – especially in a scholarly journal – he or she may make the accepted manuscript version of the contribution available to the public for non-commercial purposes 12 months after the date of first publication, provided the source of the original publication is acknowledged. Any deviating contractual provision is ineffective, even if the author has granted a third party – for example a scholarly publisher – exclusive rights of use in the work.

This somewhat unwieldy provision is the result of a compromise that has been subject to criticism, especially by publishers. Even if the author is not obliged (for example by a research funder) to make the work available to the public, he or she now still has the possibility of distributing scientific knowledge via a communication channel other than that monopolised by the classical scholarly journals. Hence, a further communication channel has been opened.

Even though many individual questions regarding this legal provision remain open, it can be deemed certain that the accepted manuscript version means the version that has undergone peer review and is designated for publication. In other words, it is almost identical with the primary publication, the only difference being the absence of the publisher’s layout and logo. The commercial purposes mentioned in the legislative text refer, for example, to remuneration agreements with the author for the secondary publication of the work. In other words, the aim of the provision is to avoid a situation where the author earns money by making the work available to the public. The strict limitation of the right of secondary publication to making the work available to the public precludes the licensing of the secondary publication by means of free licences, and especially the awarding of Creative Commons licences.