Informationsplattform Open Access: Copyright

Copyright

Copyright is one of the intellectual property rights which are regulated nationally. Copyright protects the rights of authors in their own works. In Germany, copyright is regulated by the Law on Copyright and Related Rights, or Copyright Law (UrhG) for short. Under German law, copyright is not transferable except by way of inheritance (Section 29 UrhG). However, authors may grant rights of use in their works to others.

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What does copyright protect?

Copyright protects the rights of authors in their works. Works within the meaning of copyright law are literary, scientific and artistic creations, for example texts, paintings, sculptures, theatre productions, photographs, films, radio broadcasts, musical and other sound recordings (Section 2 UrhG). German copyright law is based on the principle that the person who creates the work is the author (Section 7 UrhG). Copyright in a work does not have to be registered in the same way as a patent does. Rather it arises automatically once a work is created and does not expire until 70 years after the death of the author (Section 64 UrhG). Under Section 28 UrhG copyright is a bequeathable right.

Copyright protects the economic and moral interests of the author. However, limits are imposed on copyright to protect the public interest (so-called limitations of copyright, for example, the right of citation and the right of private copying).

Authors are entitled to all exploitation rights in their work, for example the rights of reproduction, distribution, exhibition, communication to the public and adaptation in the work. However, they may grant rights of use in their works to others, for example the right of use as a printed work (exploitation rights and rights of use). This does not affect their status as author.

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Authors in employment or service

If a person creates a work in execution of employment or service, Section 43 UrhG applies. Employees are deemed to be the authors of a work even if they created it in execution of their obligations under an employment contract. The employer is deemed, from a property law point of view, to be the owner of the work, whereas the author holds all copyrights. However, an exemption to this rule applies in the case of the tertiary education sector. Because teachers at institutes of higher education conduct their teaching and research independently, the results of these activities, for example books, essays, teaching material etc, are deemed, from a property law perspective, to belong to the teacher or the employee of the institution who performs his or her scientific work independently.

 

Co-authorship

Section 8 UrhG regulates the question of authorship in cases where several authors were involved in creating the work. This provision is of particular relevance to the scientific sector where works such as essays and books are frequently created jointly by several persons, because, if the individual contributions cannot be exploited separately, all participants are deemed to be co-authors of the work.

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What rights do I have as an author?

German copyright law distinguishes between non-transferable moral rights and copyright on the one hand (Section 29 UrhG) and the granting of rights of use in existing and future works in accordance with statutory provisions on the other.

 

Moral rights

Copyright law protects authors both with respect to their intellectual and personal relationship with their works and with respect to the use of their works (Section 11 UrhG). With regard to moral rights, this means that authors may decide whether and how their works should be published (Section 12 UrhG), that their authorship must be acknowledged (Section 13 UrhG) and that they have the right to prohibit any distortion or mutilation of their work (Section 14 UrhG). Moral rights represent the non-material aspect of copyright and are not transferable.

 

Exploitation rights and rights of use

According to Section 15 UrhG authors hold the exclusive exploitation rights in their works. That means that they can decide whether their works may be reproduced, distributed, exhibited or communicated to the public.

 

The rights of reproduction, distribution etc form the basis of the material exploitation of the works. In order to exploit their works commercially, authors are entitled under Section (2) and Section 31 UrhG to grant rights of use to others:

 

  • Non-exclusive rights of use: A non-exclusive right of use entitles the holder to use the work in the manner permitted but it does not exclude the use by the author or by third parties (Section 31 (2) UrhG). Hence, the holder of a non-exclusive right of use cannot prohibit either third parties or the author from using the work.
  • Exclusive rights of use: In contrast to non-exclusive rights of use, exclusive rights are, as the name indicates, exclusive. This means that only the holder of the right is entitled to use the work in the manner permitted. An exclusive right of use entitles the holder to exclude the author and all other persons from using the work.
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Granting of rights of use

In the case of scientific publications, rights of use are usually granted within the framework of a contract such as a licence agreement or a publishing agreement. Authors who collaborate with journal publishers grant them rights of use in their articles in order that they may utilise the content. In a traditional publishing agreement, these rights comprise the exclusive rights of reproduction, distribution and making accessible to the public, also online. In the case of articles published in newspapers, only non-exclusive rights are granted as a rule. In other words, authors are entitled to make the article available elsewhere immediately after it appears (Section (3) UrhG). Unless otherwise contractually agreed, the author of a journal article is entitled to make it available elsewhere one year after the date of primary publication (Section 38 (1) UrhG). This applies also to contributions in collective volumes which do not appear periodically provided the author did not receive remuneration for the contribution (Section 38 (2) UrhG). If an author so wishes, there are a number of ways to contractually assert the right to make a document openly accessible in parallel with publication.

 

Rights in respect of unknown types of use

According to a new provision in force since 1 January 2008, the author may also grant to another party exclusive rights in respect of types of unknown use at the time of conclusion of the contract (Section 31a (1) UrhG); Contracts in respect of unknown types of use). One example of a new type of use is online exploitation or online use which is deemed to have been a generally known type of use since 1995. According to the transitional provision for new types of use (Section 137l UrhG), the rights of online use in works in respect of which a licensing agreement was concluded with another party before 1995 automatically devolved to the holder of the exclusive rights of use unless the author lodged an objection with the holder of these rights before the end of 2008 (see Copyright law reform and Section 137l of the Copyright Law - FAQ on the granting of rights).

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Links for further reading

More links

Please note that the content of this section is intended for information purposes only and does not constitute legal advice.

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